lumbosacral Bva Case...............

[allan]

BVA9411435

DOCKET NO. 91-42 869 ) DATE

)

)

On appeal from the decision of the

Department of Veterans Affairs Regional Office in Manchester, New

Hampshire

THE ISSUES

1. Entitlement to an increased evaluation for status post

diskoidectomy, L4-L5, with radiculopathy, currently evaluated as

40 percent disabling.

2. Entitlement to an increased evaluation for post-traumatic

stress disorder, currently evaluated as 50 percent disabling.

3. Entitlement to service connection for chronic pain syndrome

as secondary to service-connected disorders.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

William H. Hickman, Associate Counsel

INTRODUCTION

The veteran had active military service from February 1970 to

November 1972.

These matters come before the Board of Veterans' Appeals (Board)

on appeal from rating decisions of the Department of Veterans

Affairs (VA) Manchester, New Hampshire, Regional Office (RO). A

September 1990 RO rating decision denied the veteran's initial

request for increased ratings for the service-connected

disorders.

In May 1992 a personal hearing was held at the Board in

Washington, D.C., before W. H. Yeager, Jr., M.D., who is a

member of the Board and who was designated by the Chairman to

conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West

1991). At this hearing the additional issues of service

connection for chronic pain syndrome and for a total rating due

to individual unemployability were raised.

In August 1992 the Board remanded the case for further

development. An RO rating decision dated in December 1992

increased the veteran's evaluation for post-traumatic stress

disorder from 30 percent to 50 percent, and denied an increase in

the veteran's service-connected back disorder. It also granted

the veteran a total rating based on individual unemployability.

An RO rating decision dated in April 1993 denied the veteran

service connection for chronic pain syndrome. The case is now

before the Board for appellate review.

CONTENTIONS OF APPELLANT ON APPEAL

With respect to the claim for an increased evaluation for a back

disorder, the veteran contends, essentially, that the most recent

medical findings reported on VA examinations indicate that he is

completely disabled due to the back symptomatology and,

therefore, a higher evaluation for the back disorder is

warranted.

With respect to the claim for a higher evaluation for post-

traumatic stress disorder, hereinafter PTSD, it is argued, in

essence, that both the symptomatology and history of the disorder

as described in the most recent VA examination support a higher

disability rating and, therefore, a higher evaluation should be

assigned for this disorder.

With respect to the claim for service connection for chronic pain

syndrome, it is asserted that both the service-connected back

disorder and PTSD have been the cause of a separate psychological

entity of chronic pain syndrome developing, and that this

assertion is supported by the medical record and, therefore,

service connection should also be granted for this disorder.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.

§ 7104 (West 1991), has reviewed and considered all of the

evidence and material of record in the veteran's claims file.

Based on its review of the relevant evidence in this matter, and

for the following reasons and bases, it is the decision of the

Board that the evidentiary record supports the veteran's claims

for a higher evaluation for the service-connected back disorder

and for a grant of service connection for chronic pain syndrome,

and is against the veteran's claim for a higher evaluation for

PTSD.

FINDINGS OF FACT

1. All relevant evidence necessary for an equitable disposition

of the veteran's appeal has been obtained by the RO.

2. The evidentiary record demonstrates that the veteran has

severe symptomatology with recurring attacks. Associated with

this condition is a chronic pain syndrome. These manifestations,

in combination, equate with a pronounced symptomatology with

little intermittent relief.

3. The evidentiary record does not demonstrate that

symptomatology attributable to PTSD results in more than

considerable social and industrial impairment.

4. The evidentiary record demonstrates that the veteran has

chronic pain syndrome which is a manifestation of the service-

connected status post diskoidectomy.

CONCLUSIONS OF LAW

1. The schedular criteria for an evaluation of 60 percent for

residuals of a diskoidectomy, L4-L5, with radiculopathy and

chronic pain syndrome, have been met. 38 U.S.C.A. §§ 1155, 5107

(West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.41,

Part 4, Code 5293 (1993).

2. The extra-schedular criteria for an evaluation higher than 60

percent for residuals of a diskoidectomy, L4-L5, with

radiculopathy and chronic pain syndrome, have not been met.

38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.321(b)(1)

(1993).

3. The criteria for an evaluation greater than 50 percent for

PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991);

38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, Part 4, Code 9411

(1993).

4. Chronic pain syndrome is proximately due to or the result of

the service-connected status post diskoidectomy, L4-L5, with

radiculopathy. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R.

§§ 3.310(a) (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, we find the veteran's claims to be well grounded; that

is, they are plausible and capable of substantiation. We are

also satisfied that all relevant facts have been properly

developed, and that no further assistance to the veteran is

required to comply with the duty to assist him as mandated by

38 U.S.C.A. § 5107(a).

I. The Claim for Service Connection for Chronic Pain Syndrome

The veteran contends that he has chronic pain syndrome which

arose as a result of the service-connected disorders and,

therefore, should be granted service-connection for this

disorder.

Under the applicable law and regulations, service connection is

warranted for any disorder which arises as a proximate result of

a service-connected disorder. See 38 C.F.R. § 3.310(a) 1993).

In the instant case, VA examiners have addressed the question of

whether the veteran's diagnosed chronic pain syndrome is a

separate entity (for the history of the development of pain

associated with the veteran's service-connected disorders, see

Sections II and III herein). A VA neurologist offered an opinion

on the subject in January 1993. He wrote that the veteran did

have chronic pain syndrome and that this was both an organic

disease related to the service-connected lumbar spine disorder,

and to the service-connected PTSD. A VA psychiatrist, in an

opinion dated in January 1993, indicated that the veteran

developed chronic pain syndrome as a direct attribute of the

service-connected lumbosacral disability.

Although the neurologist considered the chronic pain syndrome as

due to either the service-connected back condition or PTSD, the

psychiatrist, following his examination of the veteran,

considered it as solely part of the back condition. In

determining whether a particular phenomena is part of a

psychiatric disease, we are of the opinion that the psychiatrist

would be more qualified to make this judgment decision.

Therefore, with respect to the association of the chronic pain

syndrome with a particular disability, we assign greater weight

to the opinion of the psychiatrist that it is not due to the

service-connected PTSD. Thus, we are left with the conclusion

that it is part of the service-connected disc disease. The

chronic pain syndrome has been closely associated with the back

condition throughout the entire record. Service connection for

chronic pain syndrome is indicated as caused by and a part of the

back condition. There are no diagnostic codes which adequately

reflect chronic pain syndrome by itself. Furthermore, the

psychiatrist stated that it was not a separate disease entity but

the result of the back condition. Therefore, it is not

appropriate in this case to consider it a separate disease entity

and rate it separately from the other service-connected

disabilities. 38 C.F.R. § 4.14 (1993) We, therefore, need to

look at the ratings for back disability and consider the chronic

pain syndrome as one more manifestation of the veteran's service-

connected status post diskectomy with neuropathy.

Under the applicable law, we do not have to decide if chronic

pain syndrome is caused by just one of the service-connected

disorders, or both in combination. It is enough that the

evidentiary record establishes, that at a minimum, the chronic

pain disorder resulted from the service-connected back disorder.

Accordingly, service connection for chronic pain syndrome is

granted.

II. The Claim for an Increased Evaluation for a Status Post

Diskoidectomy, L4-L5, with Postoperative Radiculopathy

Service medical and personnel records reflect that, in November

1970, while the veteran was serving in Vietnam, he complained of

having pain in his lower spine over the past two months. The

records indicate the veteran stated there was no specific injury

to the spine, and the pain was most severe when he was sitting.

Medical examination found no back pathology and the veteran was

returned to duty. The report of a separation examination dated

in September 1972 was negative for any musculoskeletal defects

including the lumbar spine.

Private medical records reveal that, in November 1979, the

veteran underwent a laminectomy, which excised the disc at L4 due

to the veteran's sustaining a central herniation of the disc.

A myelogram performed by a private physician in February 1981

indicated the veteran had postoperative changes associated with

the prior back surgery, but that these changes were too minimal

for the physician to make a diagnosis.

Subsequently, the Vocational Assessment and Career Center of New

Hampshire, performed an analysis of the veteran's postoperative

capabilities. A report dated in February 1982 indicated that the

veteran's weight level and endurance levels achieved throughout

the testing cycle were minimal, and could be raised through a

success-oriented work-tolerance program of a moderate progressive

nature.

Private medical records from the New England Rehabilitation

Hospital dated in August 1982 indicated that, despite the

veteran's subjective complaints of continuing pain, there were no

specific medical findings which would give rise to that pain. It

reported that multiple examinations had established that the

veteran was medically functional with all tested areas within

normal limits, and it was recommended that the veteran return to

work.

In March 1982 the veteran filed a claim with the VA for back

injuries sustained in service. In support of this claim he

submitted a VA Form 21-4138, dated in July 1982 wherein he

detailed three incidents of trauma to the back while in service.

An RO rating decision dated in November 1982 rejected the

veteran's claim on the basis that the service medical records

indicated no chronic back pathology, and that the veteran's back

disorder was due to an on-the-job injury sustained in July 1979.

In February 1983 the veteran testified at a personal hearing. He

indicated that he was treated in November 1970 for back pain

while in service.

The veteran then called a chiropractor to testify on his behalf.

The chiropractor stated that he had treated the veteran in May

1973 for a low back injury that had begun in service. The

chiropractor went onto to indicate, essentially, that it was the

injury in service that led to the on-the-job injury in 1979 due

to the lumbar spine being weakened in service by the trauma it

sustained therein.

The veteran underwent a VA examination in March 1983.

Radiographic studies of the lumbar spine indicated a slight

narrowing of the 4th and 5th disc space. Other than that, no

abnormalities were reported. On physical examination the veteran

appeared in some subjective discomfort. Heel walking, heel

raising, tip-toe walking and great toe strength revealed no gross

abnormalities. Straight leg raising test was bilaterally

positive. The veteran reported some dullness in the left lateral

calf and sole of the foot. Diagnostic impression was status post

diskoidectomy, L4-L5, with postoperative radiculopathy,

symptomatic.

Based on the testimony presented at his personal hearing, an RO

rating decision dated in March 1983 service-connected the veteran

for status post diskoidectomy, L4-L5, with postoperative

radiculopathy and assigned a 40 percent evaluation for the

disorder.

A memorandum from the United States Department of Labor Office of

Worker's Compensation Programs, dated in August 1986, indicates

the veteran reinjured his back in October 1985 while at work.

The report concluded, based on the medical analysis of several

physicians, that the on-the-job injury resulted in no further

chronic disability, but that the veteran would have an ongoing

disability in relationship to the residuals of the laminectomy

done in 1979.

An RO rating decision dated in October 1986 reduced the veteran's

evaluation from a 40 percent rating to a 20 percent rating based

on a consultative neurological examination which showed no

definite objective signs of lumbar radiculopathy involving the

left lower extremity despite the veteran's subjective complaints

of symptomatology therein.

In a letter dated in November 1986 a VA physician wrote to the

veteran that it was the physician's belief that he had not made a

reasonable recovery from his low back syndrome and that this

physician did not consider the veteran employable.

Radiographic studies of the lumbar spine taken at a VA facility

in April 1988 reported that, in comparison to previous studies,

there was a narrowing of the L4-L5 interspace which had been

progressive since 1983. The report stated that this was

indicative of probable disc degenerative changes at this level.

In April 1990 the veteran filed a claim for an increase in the

back rating.

In June 1990 the veteran underwent a VA consultative examination

by a private physician. On physical examination, forward flexion

was restricted to 20 degrees, with extension being 5 to

10 degrees. Lateral bending and rotation of the lumbar spine

were described as mildly reduced. The straight leg raising tests

caused the veteran to writhe in pain at approximately 30 degrees

on the right and 20 degrees on the left. It was stated this

could be slightly exaggerated. Pinprick appreciation was reduced

in the right leg below the knee. The left leg indicated that

pinprick was reduced over the dorsal foot and outer leg below the

knee. It was stated this was compatible with an L5 and partial

S1 distribution. Radiographic studies of the lumbar spine

continued to show disc degenerative changes at the L4-L5 and at

the L5 - S1, characterized by narrowing of the intervertebral

disc spaces. This film was seen as comparable to the

radiographic report accomplished in April 1988.

Diagnostic impression was of a failed low back syndrome. It was

reported the veteran appeared to be in some degree of pain and

unable to do other than sedentary activity. The examiner

reported that he suspected the veteran would be left with chronic

pain irrespective of whether he underwent another surgical

procedure.

Based on this examination, an RO rating decision dated in October

1990 increased the veteran's evaluation from 20 percent to a

40 percent rating.

An RO rating decision dated in August 1991 indicates the veteran

filed a claim for an increase in the back rating in April 1991.

In conjunction with this claim for increase, the veteran

submitted private medical records from a neurological

consultation accomplished in March and April of 1991 with G.

Gillespie, M.D., (whose letterhead indicates that he is a

neurological surgeon). This revealed that the veteran had again

sustained an on the job injury to his back in July 1990 due to

lifting heavy objects. The physician ordered both a CAT scan and

X-ray studies of the lumbar spine.

The report of the CAT scan, undertaken in March 1991, indicated

mild disc bulging at the L2-L3 level, a small central herniation

at the L3-L4 level, and postoperative changes at the L4-L5 and

L5 - S1 levels. It said there was no evidence for spinal

stenosis.

The radiographic studies, also undertaken in March 1991, reported

narrowing of the L4-L5 and L5 - S1 disc spaces. It indicated

there was mild retrolisthesis at the L3-L4 and to a lesser degree

at the L4-L5. It stated the remaining disc spaces were

unremarkable. Conclusion for the radiographic report was disc

degeneration at the lower two levels.

In a neurological evaluation conducted in April 1991 Dr.

Gillespie reviewed the results of the above reports as well as

that of a magnetic resonance imaging (hereinafter MRI) of the

lumbar spine undertaken in September 1990 (that had been ordered

by J. Shea, M.D.). Dr. Gillespie related that the MRI indicated

some disc protrusion at the L3-L4, and at the L4-L5. The MRI

report itself, dated in September 1990, also indicated that the

veteran was suspicious for small disc herniation, at the L2-L3

level. Dr. Gillespie's evaluation of the veteran concluded that

surgical intervention at the L4-L5 and L5-S1 levels possibly

could provide some relief of symptoms, but it was probable that

the veteran would experience some symptomatology for the rest of

his life.

An RO rating decision dated in August 1991 continued the

40 percent rating. The veteran appealed.

The veteran appeared and testified at a personal hearing before

the Board held in May 1992. He described several pain clinics

that he had been to help him accomplish rehabilitation and get to

the source of recurring back pain. He stated the purpose of

these clinics was to teach him how to relax and how to live with

chronic pain. He testified that, because of continuing pain, he

had very low self-esteem and that he had no endurance. In

response to the question of whether he ever went through a day

pain-free, the veteran indicated he could not remember the last

time that had occurred. He indicated that he had endured muscle

spasms for 28 days---apparently meaning consecutive days. The

veteran reported that, at the time of the VA consultative

examination accomplished in June 1990 when he could only forward

flex to 20 degrees and extend backward 5 to 10 degrees, that this

was a relatively good day in terms of the spine's capability. He

testified that, since his last herniation, which the veteran

indicated physicians had located at the L2 or L3 level, that his

pain seemed to be going higher up in the spine, and that he now

had pain in the lower back (as opposed to just radiculopathy to

the lower extremities) . He also stated he continued to have

sharp radiculopathy down the left lower extremity and that

physicians had indicated to him that this was indicative of

L5 - S1 problems. He reported he was taking a number of

medications to control the pain. He also stated he wore a

lumbosacral corset on a daily basis. He described the limitation

in his activities caused by back symptoms indicating that he

could not do any yard work and was very limited in the amount of

household chores he could perform. He said his hobbies were

restricted to fishing. He also stated that he had a difficult

time sleeping (apparently due to pain), and that he averaged

about 3 hours' sleep a night.

In August 1992 the Board remanded the case in order to obtain

more medical evidence and, in particular, to associate with the

claims folder records from the pain clinics that the veteran said

he had attended ( the New England Rehabilitation Hospital, the

Peter Mayer Rehabilitation Clinic, the Elliot Hospital Pain

Clinic, and the Steve Kidder Pain Rehabilitation Clinic).

Records from the New England Rehabilitation Hospital were already

associated with the claims folder (see the discussion above of

the records dated in August 1982).

On a VA Form 21-4138 dated in October 1992 the veteran wrote that

the Peter Mayar Rehabilitation Clinic was no longer in business

(apparently meaning that these records would not be available.)

Received from Elliott Hospital was the report of an X-ray study

accomplished in July 1976 (prior to the diskoidectomy). This

indicated vertebral development was normal, but that there was

slight narrowing of the L4-L5, and more pronounced narrowing of

the L5-S1.

In a letter dated in December 1992 Steve Kidder, physical

therapist, related that he had treated the veteran for two to

three months in 1982 with a program of exercise and stretching,

and again in July 1991 with a similar program due to the reinjury

of the back in July 1990. He reported that the veteran had

continued with this therapy for the past year and a half.

The Board in its remand of August 1992 also requested that the RO

obtain, and evaluate, medical records from J. Shea, M.D.

Clinical notes and reports from Dr. Shea were obtained reflecting

treatment from August 1990 through January of 1992 following an

on the job back injury sustained by the veteran in July 1990.

All these reports reflect varying degrees of back symptomatology

including varying degrees of restriction in the lumbar spine's

range of motion (which is indicated as markedly limited in August

of 1990 and markedly limited in January of 1992). Chronic low

back pain is also a prevalent symptom. The records reflect that

Dr. Shea referred the veteran to Dr. Gillespie in March 1991 (see

above discussion as to the contents of physician's Gillespie's

records). In a letter dated in June 1992, addressed to the

veteran's attorney, Dr. Shea wrote that the veteran also had a

continuation of the pre-existing spinal problem, which the

current injury affected, and that these two separate injuries, in

combination, caused a greater disability than that just

occasioned by the July 1990 injury alone.

The Board's remand in August 1992 also had requested the RO to

obtain any medical records concerning the veteran from the Social

Security Administration (SSA). In September 1992, the SSA

forwarded to the RO, copies of the previously discussed medical

records of Drs. Shea and Gillespie.

The veteran underwent a social and industrial survey performed by

a VA social worker (MWS) in September 1992. The survey reported

that the veteran was unemployed for a period of seven years

following his 1979 surgery; however, the social worker indicated

that this time frame did not make sense and that the veteran

stated that it was difficult for him to keep track of dates. The

social worker reported that the claims folder indicated that the

veteran returned to work in 1983 for a period of one year. The

report then indicates the veteran was unemployed for about one

year and then in 1985 he went to work as a chauffeur and that

this job lasted about a year. It went onto indicate that the

veteran returned to work again in 1987 as a courier tractor-

trailer driver and in 1990 reinjured his back. The social

worker's assessment was that, given the nature of the veteran's

back disorder and the severity of his pain, the veteran did not

appear employable. It was also stated that the veteran had post-

traumatic stress disorder which also impacted on the veteran's

ability to seek or maintain employment (see Section II herein).

The conclusion was that, due to both disorders, the chronic back

disorder and the PTSD, the veteran did not appear employable at

this time, or that he could obtain and maintain employment in the

future.

The veteran underwent a VA neurological examination in October

1992. This referred to the previously discussed MRI dated in

September 1990 and the CAT scan dated in March 1991 accomplished

by private physicians.

On physical examination the veteran limped favoring the left leg

while leaning forward about 20 degrees. It was reported the

veteran appeared to be in moderately severe pain and was somewhat

testy and irritable. It was also indicated that the veteran was

not capable of fully cooperating with the examination (apparently

because of the pain). The veteran would not allow the physician

to manipulate his neck. It was indicated that the veteran

appeared to "lithe" (sic) around in pain with any sort of mild

manipulation or even gentle palpations about the veteran's legs

or low back. The physician reported that there did seem to be

legitimate pain present, but it seemed that the veteran's

reactions were out of proportion to the physician's efforts to

attempt an examination. Manual muscle testing could not be

reliably performed. Cranial nerves II through XII were intact,

bilaterally, except for those governing hearing. From

observation of the legs, the physician assessed muscular strength

of at least a Grade IV. The veteran refused to attempt to walk

on his heels or toes, and due to his tension, the reflex

examination was limited. Deep tendon reflexes were present in

both arms and at the knees and ankle jerks to the Grade II level

were present to both toes downgoing. The physician reported he

did not attempt the sensory examination due to the veteran's

complaints of pain.

Diagnostic conclusion was that the veteran had chronic low back

pain, status post L4-L5 laminectomy. He indicated he felt that

the veteran's portrayal of his pain went beyond what one would

expect from observing the anatomical changes on the imaging

studies. This physician saw the veteran as being completely

disabled based on the current examination, as well as the

veteran's ongoing psychiatric difficulties from PTSD (see

Section II herein).

The veteran was also seen in November 1992 by a VA orthopedist

for evaluation of the lumbar spine, On physical examination ROM

studies indicated the spine was nearly immobilized with regard to

forward flexion. Side-to-side motion was 30 degrees and

extension was 30 degrees. The examiner also summarized the CAT

and MRI reports (accomplished by the private physicians in

September 1990 and March 1991) previously discussed herein. This

examiner's analysis, based on the private diagnostic tests and

his examination, was that the veteran was currently totally

disabled.

Based on these examiners' analysis, and on the report of a

psychiatrist (see Section II below), an RO rating decision dated

in December 1992 granted the veteran a total disability rating

based on individual unemployability. The rating for the status

post diskoidectomy remained at 40 percent.

In November 1993 the RO returned the neurologist's examination

report to him to comment on whether or not the veteran did have

chronic pain syndrome. In response to that request, the

neurologist indicated the veteran appeared to have chronic pain

syndrome that was debilitating in its extent and that this was

related both to the organic disease in the lumbar spine and

additionally to psychiatric difficulties from PTSD. He stated it

was difficult for him to ascertain what percentages were due to

which process.

Disability evaluations are based on a comparison of clinical

findings with the applicable schedular criteria. 38 U.S.C.A.

§ 1155 (West 1991); 38 C.F.R. Part 4, (1993). Residuals of a

laminectomy are rated analogous to symptomatology associated with

intervertebral disc syndrome. See 38 C.F.R. § 4.20, Part 4,

Diagnostic Code 5293. This code section indicates that a

60 percent evaluation is warranted for pronounced symptomatology

including persistent symptoms compatible with sciatic neuropathy

with characteristic pain and demonstrable muscle spasm, absent

ankle jerk, or other neurological findings appropriate to the

site of the diseased disc with little intermittent relief. The

veteran's current 40 percent rating encompasses severe

symptomatology with recurring attacks, with intermittent relief.

In view of the grant of service connection for chronic pain

syndrome, the Board views the evidentiary record as demonstrating

that the veteran's symptoms meet the schedular criteria for a 60

percent evaluation. The clinical record portrays the veteran as

having chronic pain due to the back disorder, and having

developed chronic pain syndrome as well. In reviewing all of the

medical reports, both private and VA, a picture of the overall

back disability emerges fairly clearly. The chief manifestations

of the veteran's back disability are considerable limitation of

motion and radiating pain. It does not appear that there is any

appreciable muscle weakness in the lower extremities and attempts

to test whether there is any sensory change have not been

possible. In addition to the limitation of motion, the most

characteristic symptom at the present time is the chronic pain

syndrome. This has been described by all of the examining

physicians. Although there is little organic basis for the pain,

the consensus suggests that it is a result of the service-

connected back disability. If we consider the pain in

conjunction with the limitation of motion of the low back, it

would be more appropriate to consider this overall level of

disability as pronounced and equivalent to the 60 percent rating.

The examination findings do not reflect a complete bony fixation

of the spine at an unfavorable ankle which would be necessary to

qualify for the next higher rating of 100% under Diagnostic Code

5286.

Also, in reaching this decision, the Board has given

consideration to the potential application of the various

provisions of 38 C.F.R. Parts 3 and 4, whether or not they were

raised by the appellant, as required by Schafrath v. Derwinski,

1 Vet.App. 589 (1991). In particular, we find that the following

sections do not provide a basis upon which to assign a higher

evaluation than 60 percent. 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10,

4.40. 4.41.

We also do not find that the veteran is entitled to an

extraschedular rating for the service-connected back disorder

under the provisions of 38 C.F.R. § 3.321(b)(1). This code

section provides that, in exceptional circumstances, the veteran

may be awarded a rating higher than that encompassed by the

schedular criteria. Exceptional circumstances as portrayed in

the regulation denote frequent periods of hospitalization due to

the service-connected disability, or the veteran's having marked

interference with employment due to the service-connected

disability. The record does not demonstrate frequent periods of

hospitalization currently due to the back disorder. It does

demonstrate that the veteran is currently unemployed, in part due

to the back disorder. However, as the evidentiary record

establishes that veteran's unemployability is as least partially

the result of service-connected PTSD, and that it is the

combination of the two disorders that results in the veteran's

being unemployable (see Section II herein), the record does not

support an award of an extra-schedular rating based solely on the

back's disability alone. In this regard we do note the veteran

is already in receipt of a total rating for unemployability

granted by an RO rating decision dated in December 1992 based on

the effect on the veteran's earning capacity by both the service-

connected back disorder and the service-connected PTSD.

III. The Claim for an Increased Rating for PTSD

The service medical records are negative for any psychiatric

symptomatology. The report of the discharge examination dated in

September 1972 was marked normal for psychiatric findings.

The veteran's service personnel records indicate he served in

Vietnam from July 1970 to April 1971, had military occupational

skill as that of an armorer and was awarded the Bronze Star Medal

for meritorious service.

In August 1985 the veteran was referred to a VA mental hygiene

clinic (hereinafter MHC) by VA vocational rehabilitation unit.

The veteran complained of symptoms including an exaggerated

startle response, nightmares, and recollections of traumatic

combat experiences. Pertinent diagnosis was rule out PTSD.

On a VA hospital record dated in September 1985 it was indicated

that the veteran had been seeing a counselor for the past 2 or

3 years because of symptoms of depression, flashbacks about

Vietnam, and nightmares about Vietnam. Pertinent diagnosis was

of PTSD, chronic, delayed.

The veteran underwent a VA psychiatric examination in June 1987.

This diagnosed the veteran as having chronic PTSD. An RO rating

decision dated in July 1987 granted the veteran service

connection for PTSD based on his testimony at the personal

hearings and the diagnosis from the VA psychiatric evaluation.

It assigned a 30 percent rating for the disorder.

In April 1990 the veteran filed a claim for an increased rating.

In July 1990 he underwent a VA psychiatric evaluation. The

veteran reported that his symptomatology had been exacerbated

during the last three months. He stated that precipitation of

symptoms occurred when his basement was flooded with oil, and the

resulting odor precipitated flashbacks of Vietnam. During this

interview, the veteran stated that, even though he was trained in

a supply specialty, he was sent to Vietnam as an infantryman and

carried a machine gun. (Service personnel records indicate the

veteran's principal duty in Vietnam was that of a unit supply

specialist/ armorer (one who services and repairs weapons). The

veteran stated that in order to survive in Vietnam he had to kill

and that he now experienced moral guilt. The examiner reported

the veteran very angry and explosive during the interview.

The examiner reported the veteran as suffering from severe

symptoms of PTSD with the symptoms compounded by chronic pain as

a result of lumbar disc problems. Diagnosis was of PTSD,

chronic, delayed, moderate to severe.

An RO rating decision dated in October 1990 maintained the

30 percent evaluation for PTSD.

In conjunction with the Board's remand, the veteran underwent a

VA social and industrial survey in September 1992. The VA social

worker reported that the veteran remained angry and raged

throughout the interview and that he had frequent outbursts of

shouting after which he became apologetic and was subdued. He

was reported as being extremely defensive, and as a result, it

was difficult to obtain detailed information. At this time the

veteran again stated that he was sent to Vietnam as an

infantryman, and, for the first time, reported killing Vietnamese

children. It was indicated that the veteran was married from

1975 to 1981, and that his first wife left him because she could

not cope with the veteran's problems (including those associated

with the back disorder which started in 1979). The report stated

the veteran remarried in July 1987 and was the father of one

child. The veteran indicated that the PTSD symptomatology

affects his marriage inasmuch it caused him to have frequent

outbursts. The veteran described recurring flashbacks, recurrent

nightmares, visual and auditory hallucinations (for the first

time), sleep disturbances, frequent outbursts of anger, and

difficulty in interpersonal relationships as symptoms of PTSD.

He stated that the flashbacks were triggered by hot humid weather

and the smell of diesel fuel. He indicated that he trusted no

one except his wife, and that he felt safe only at home or in the

woods. The VA social worker concluded that the veteran's

interpersonal relationships were affected by chronic anger and

rage and the source of this was the veteran's overall Vietnam

experience. The rage was seen as a severe impairment to the

veteran's being able to maintain employment.

The veteran also underwent a VA psychiatric evaluation in October

1992. He complained of the same symptomatology that he had

reported to the VA social worker in the month prior. The

examiner reported the veteran was quite tense and agitated with

his speech under pressure. The veteran again stated he was in

the combat Infantry in Vietnam (a fact not supported by the

service personnel records). The veteran's verbal productivity

was increased, his stream of thought was spontaneous, his

emotional reaction was mainly that of anger, irritability and

depression. Affect was full range, the thought content was goal-

directed and seemed rational and coherent, and there was no

evidence of any psychotic thinking. He was oriented times three

and had insight and judgment. Diagnosis was of PTSD, chronic,

with recurrent depression.

The RO returned the report of examination to the psychiatric

examiner in January 1993 for comment on whether or not the

veteran had developed chronic pain syndrome. The examiner stated

the veteran had this disorder and that this was directly

attributable to the service-connected lumbosacral disability, but

was not a separate disease entity. Thus, no psychiatric basis

was identified to account for the chronic pain syndrome.

An RO rating decision dated in April 1993 increased the veteran's

rating for PTSD from a 30 percent evaluation to a 50 percent

evaluation.

Disability evaluations are based upon a comparison of clinical

findings with the applicable schedular criteria. 38 U.S.C.A.

§ 1155 (West 1991); 38 C.F.R. Part 4, (1993). Under the

schedular criteria, the evaluation for the veteran's PTSD turns

on the degree of social and industrial impairment caused by the

disorder. See 38 C.F.R. Part 4, Diagnostic Code 9411 (1993).

Under that diagnostic code, a 100 percent evaluation is warranted

if the record demonstrates that the veteran is totally

incapacitated and psychotic symptoms bordering on gross

repudiation of reality with disturbed thought or behavioral

processes associated with almost all daily activities such as

fantasy, confusion, panic and explosions of aggressive energy

resulting in profound retreat from mature behavior.

Additionally, evidence which indicates that the claimant is

demonstrably unable to obtain or retain employment is a factor.

A 70 percent rating is warranted when the ability to establish

and maintain effective or favorable relationships with people is

severely impaired and that the psychoneurotic symptoms are of

such severity and persistent that there is severe impairment in

the ability to obtain or retain employment.

The current 50 percent evaluation is indicated under the

schedular criteria when the ability to establish or maintain

effective or favorable relationships with people is considerably

impaired, and by reason of the psychoneurotic symptoms, the

reliability, flexibility, and efficiency levels are so reduced as

to result in considerable industrial impairment.

The Board is of the view that the primary cause of the veteran's

industrial impairment is the back injury he sustained on the job

in July 199O. See Section II herein. Despite several VA health

professional's analysis that the veteran's PTSD symptomatology

would make it difficult for him to maintain employment, the fact

is he had worked between 1987 and July 1990 until the current

back injury occurred. In fact, at the time the veteran applied

for an increase in his PTSD rating in April 1990 he was still

employed. We do realize the PTSD does effect the veteran's

ability to make a living inasmuch as the symptoms most likely

make the veteran unsuitable for certain jobs. However, it is our

view that this limitation is compensated for by the current

rating.

As to the veteran's social impairment, we note his testimony as

to the lack of friends and social intercourse, however, we also a

note a marital relationship continuing through five years. In

this regard we also see the current rating as adequately

compensating the veteran.

Lastly, despite the analysis of several VA health professional's

as to the severity and chronicity of the veteran's symptoms, it

is our view that they came to these conclusions in part, based on

the accounts of his duties in Vietnam related to them by the

veteran. We feel the veteran has somewhat exaggerated his role

in service by asserting that he was sent to Vietnam as a combat

infantryman and fought in the infantry. While it may be true

that he participated in combat and was subject to hostile fire

while servicing weapons in combat zones, it is clear from reading

the health professional's analysis of his combat experiences that

the veteran left them with the impression that his primary

occupation in Vietnam was that of an infantryman. This is at

best misleading and, we think, accounts for some of the

characterization of the symptoms by the health professionals as

perhaps more enduring and severe then is actually the case.

Accordingly, it is our view of the evidentiary record, when this

aspect of the veteran's credibility is taken into account, that

the current rating encompasses the actual symptomatology.

Accordingly, an evaluation of higher than 50 percent for PTSD is

not warranted.

The Board has also considered whether the veteran is entitled to

an evaluation higher than 50 percent on an extraschedular basis

under the provisions of 38 C.F.R. § 3.321(b)(1). We find,

however, that the evidence does not indicate that the regular

schedular standards are inadequate to evaluate the veteran's PTSD

inasmuch as the record does not denote frequent periods of

hospitalization due to PTSD, and does indicate that the veteran

is unemployed as a result of both the service-connected back

disorder as well as the service-connected PTSD. Thus, it is both

disorders in combination which are the cause of the veteran's

unemployment, and for which he is currently receiving a 100

percent disability evaluation, rather than just the PTSD itself

(see Section I herein). Accordingly, an extra-schedular rating

based on PTSD alone is not warranted.

Also, in reaching the decision herein, the Board has given

consideration to the potential application of the various

provisions of 38 C.F.R. Parts 3 and 4, whether or not they were

raised by the appellant, as required by Schafrath v. Derwinski,

1 Vet.App. 589 (1991). In particular, the following sections do

not provide a basis upon which to assign a disability evaluation

higher than 50 percent. 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.129,

4.130.

In considering the appropriate rating to be assigned this

psychiatric disease, the Board has considered the doctrine of

affording the veteran the benefit of any doubt as provided by

38 U.S.C.A. § 5107(b). However, the evidentiary record is not so

evenly balanced in its positive and negative aspects so as to

support a favorable decision on this matter.

ORDER

An increased rating of 60 percent, and no more, is granted for

status post diskoidectomy, L4-L5, with radiculopathy and chronic

pain syndrome.

An increased evaluation for PTSD is denied.

Service connection for chronic pain syndrome is granted.

The above orders are subject to the law and regulations governing

the award of monetary benefits.

W. H. YEAGER, JR.

JAN DONSBACH

JOAQUIN AGUAYO-PERELES

NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West

1991), a decision of the Board of Veterans' Appeals granting less

than the complete benefit, or benefits, sought on appeal is

appealable to the United States Court of Veterans Appeals within

120 days from the date of mailing of notice of the decision,

provided that a Notice of Disagreement concerning an issue which

was before the Board was filed with the agency of original

jurisdiction on or after November 18, 1988. Veterans' Judicial

Review Act, Pub. L. No. 100-687, § 402 (1988). The date which

appears on the face of this decision constitutes the date of

mailing and the copy of this decision which you have received is

your notice of the action taken on your appeal by the Board of

Veterans' Appeals.

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I don't know what this veteran was trying to accomplish? Maybe he was trying to achieve a 100% rating for his PTSD and an addition 60% from other disabilities to warrant SMC "s."

At any rate, about the only thing the VARO didn't catch on the appeal before it went to the BVA was a possible increase from 40% to 60% for the veteran's low back condition (the pain syndrome came to light after the initial claim had been decided). The increase was a moot point anyways because he was already being paid at the 100% rate!

It does appear that the RO did award service-connection for pain syndrome, but it is unclear as to whether it was based on it's own at 0%, or combined either with the PTSD because of the prohibition of pyrmiading or the lower back condition under the old rating criteria. The BVA rectified that by actually stating it was to be 'lumped' together with the lower back, resulting in no change in the end evaluation.

I just don't know what this veteran was trying to get at by appealing this??

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