QUICK REFERENCE

TO
LAWS AND REGULATIONS
RELATING TO
PSYCHIATRIC DISORDERS
PREPARED BY:
TRESA SCHLECT, COUNSEL
SARAMAE KREITLOW, ASSOCIATE COUNSEL
BOARD OF VETERANS' APPEALS
EDUCATIONAL SEMINAR
APRIL 17, 2008
TABLE OF CONTENTS
PAGE
1. SERVICE CONNECTION
A. General
38 U.S.C.A. § 1110. Basic entitlement 4
Interpretations, 1990 amendment, 4
Diagnosed nicotine dependence 5
38 C.F.R. § 3.301. Line of duty and misconduct 5
38 U.S.C.A. § 105. 6
38 C.F.R. § 3.303. Principles relating to service connection 7
B. Presumptions
38 U.S.C.A. § 1112. Presumptions relating to certain diseases and disabilities 7
38 C.F.R. § 3.307. Presumptive service connection 8
38 C.F.R. § 3.309. Disease subject to presumptive service connection 9
38 C.F.R. § 3.384. Psychosis 9
38 U.S.C.A. § 1117. Compensation for disabilities in Persian Gulf War veterans 10
C. AGGRAVATION
38 U.S.C.A. § 1111. Sound condition 11
38 C.F.R. § 3.304(b). Presumption of Soundness 11
38 U.S.C.A. § 1153. Aggravation 12
D. SPECIAL PROVISIONS
38 C.F.R. § 3.302. Service connection for mental unsoundness in suicide 12
38 C.F.R. § 3.304(f). Direct service connection: PTSD. 13
Related: 38 U.S.C.A. § 1154 Combat Presumption. 14
II. INCREASED RATINGS
A. Statute
38 U.S.C.A. § 1155 15
B. Current Regulations
38 C.F.R. § 4.13 Effect of change of diagnosis. 15
38 C.F.R. § 4.125 Diagnosis of mental disorders. 15
38 C.F.R. § 4.126 Evaluation of disability from mental disorders. 16
2
38 C.F.R. §. 4.127 Mental retardation and personality disorders. 16
38 C.F.R. § 4.128 Convalescence ratings following extended hospitalization. 16
38 C.F.R. § 4.129 Mental disorders due to traumatic stress. 17
38 C.F.R. § 4.130 Schedule ofratings--mental disorders. 17
Interpretation, Current Regulations 20
C. Old regulations (Pre-1996 Changes)
38 C.F.R. § 4.125. General considerations 22
38 C.F.R. § 4.126. Substantiation of diagnosis 22
38 C.F.R. § 4.127. Mental deficiency and personality disorders 23
38 C.F.R. § 4.129. Social inadaptability 23
38 C.F.R. § 4.130. Evaluation of psychiatric disability 23
38 C.F.R. § 4.131. Mental disorders due to psychic trauma 24
38 C.F.R. § 4.132. Schedule ofratings--mental disorders 24
Interpretations of "old" Rating Schedule 29
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I. SERVICE CONNECTION
A. GENERAL
38 V.S.C.A. § 1110. Basic entitlement.
For disability resulting from personal injury suffered or disease contracted in line
of duty, or for aggravation of a preexisting injury suffered or disease contracted in
line of duty, in the active military, naval, or air service, during a period of war, the
United States will pay to any veteran thus disabled and who was discharged or
released under conditions other than dishonorable from the period of service in
which said injury or disease was incurred, or preexisting injury or disease was
aggravated, compensation as provided in this subchapter, but no compensation
shall be paid if the disability is a result of the veteran's own willful misconduct or
abuse of alcohol or drugs.
NOTE: In 1990, Pub. L. 101-508 added the phrase "or abuse of alcohol or drugs"
following "a result of the veteran's own willful misconduct." This additional
language has been the subject of numerous interpretations. For example:
Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001) (holding that a veteran could receive
compensation for an alcohol or drug abuse disability acquired as secondary to, or as a
symptom of, a veteran's service-connected disability, for purposes of benefits other than
compensation); Barela v. West, 11 Vet. App. 280, 283 (1998) (distinguishing the
question of service connection from the question of compensation).
VAOPGCPREC 11-96 (holding that service connection established for a disability that
resulted from a veteran's own alcohol or drug abuse, in a compensation claim filed on or
before October 31, 1990, may form the basis of an award in a DIC claim filed after
October 31, 1990).
VAOPGCPREC 2-97 (holding that payment of compensation for a disability resulting
from alcohol or drug use is prohibited whether the claim is based on direct service
connection or where, under 38 C.F.R. § 3.310(a), the veteran seeks secondary service
connection, including on the basis that a service-connected disease or injury aggravates a
disorder which was caused by use of alcohol or drugs).
VAOPGCPREC 7-99 (holding (a) that the 1990 amendments do not preclude granting
secondary service connection under 38 C.F.R. § 3.310(a) ofa substance-abuse disability
that is proximately due to or the result of a service-connected disease or injury, but no
disability compensation may be paid for such a disability; and (b) although the veteran
may not be compensated for such disability, DIC may be paid to a veteran's survivors
based on the veteran's death from a substance-abuse disability secondarily service
connected under 38 C.F.R. § 3.31O(a) (entitlement established under 38 V.S.c. § 1310) or
based on a veteran's death while in receipt of or entitled to receive compensation for a
substance-abuse disability secondarily service connected under section 3.31 O(a) and
continuously rated for the period required for DIC) (noting that secondary service
connection does not involve a line of duty determination).
Murphy v. Mansfield (unpublished-nonprecedential decision, November 2007) (widow
not entitled to DIC, where veteran, who was intoxicated, speeding, and riding without a
helmet, dies in service while riding his motorcycle-Court upheld BVA determination that
this conduct constituted deliberate or intentional wrongdoing with knowledge of or
wanton and reckless disregard of its probable consequences of his actions, and was
misconduct).
Diagnosed nicotine dependence: Note that 38 V.S.C.A. § 1103, and the
implementing regulation 38 C.F.R. § 3.300, preclude service connection for nicotine
dependence or any disease, injury or death secondary to nicotine dependence, for
claims submitted after June 9, 1998. Claims submitted prior to June 9, 1998 are
governed by the interpretation in VAOPGCPREC 02-93 (holding that nicotine
dependence could be a disease or injury for purposes of compensation);
VAOPGCPREC 2-97 (holding that service connection be established for a tobacco-
related disability or death on the basis that the disability or death was secondary to a
service-connected mental disability that caused the veteran to use tobacco products);
and VAOPGCPREC 19-97 (defining when secondary service connection for
tobacco-related disability was authorized). See also VAOPGCPREC 06-2003
(holding that claims for secondary service connection received by VA after June 9,
1998, for a disorder proximately due to or the result of an injury or disease previously
service-connected on the basis that it is attributable to the veteran's use of tobacco
products during service will not be service-connected under § 3.31 O(a)).
38 C.F.R. § 3.301. Line of duty and misconduct.
(a) Line of duty. Direct service connection may be granted only when a disability
or cause of death was incurred or aggravated in line of duty, and not the result of
the veteran's own willful misconduct or, for claims filed after October 31, 1990,
(b) Willful misconduct. Disability pension is not payable for any condition due to
the veteran's own willful misconduct.
(c) Specific applications; willful misconduct. For the purpose of determining
entitlement to service-connected and nonservice-connected benefits the definitions
in §§ 3.1 (m) and (n) of this part apply except as modified within paragraphs (c)(l)
through (c)(3) of this section. The provisions of paragraphs (c)(2) and (c)(3) of this
section are subject to the provisions of § 3.302 of this part where applicable.
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(2) The simple drinking of alcoholic beverage is not of itself willful
misconduct. The deliberate drinking of a known poisonous substance or
under conditions which would raise a presumption to that effect will be
considered willful misconduct. If, in the drinking of a beverage to enjoy its
intoxicating effects, intoxication results proximately and immediately in
disability or death, the disability or death will be considered the result of
the person's willful misconduct. Organic diseases and disabilities which are
a secondary result of the chronic use of alcohol as a beverage, whether out
of compulsion or otherwise, will not be considered of willful misconduct
origin. (See §§ 21.1043, 21.5041, and 21. 7051 of this title regarding the
disabling effects of chronic alcoholism for the purpose of extending
delimiting periods under education or rehabilitation programs.)
(3) Drug usage. The isolated and infrequent use of drugs by itself will not
be considered willful misconduct; however, the progressive and frequent
use of drugs to the point of addiction will be considered willful misconduct.
Where drugs are used to enjoy or experience their effects and the effects
result proximately and immediately in disability or death, such disability or
death will be considered the result of the person's willful misconduct.
Organic diseases and disabilities which are a secondary result of the chronic
use of drugs and infections coinciding with the injection of drugs will not
be considered of willful misconduct origin. (See paragraph (d) of this
section regarding service connection where disability or death is a result of
abuse of drugs.) Where drugs are used for therapeutic purposes or where
use of drugs or addiction thereto, results from a service-connected
disability, it will not be considered of misconduct origin.
(d) Line of duty; abuse of alcohol or drugs. An injury or disease incurred during
active military, naval, or air service shall not be deemed to have been incurred in
line of duty if such injury or disease was a result of the abuse of alcohol or drugs
by the person on whose service benefits are claimed. For the purpose of this
paragraph, alcohol abuse means the use of alcoholic beverages over time, or such
excessive use at anyone time, sufficient to cause disability to or death of the user;
drug abuse means the use of illegal drugs (including prescription drugs that are
illegally or illicitly obtained), the intentional use of prescription or non-
prescription drugs for a purpose other than the medically intended use, or the use
of substances other than alcohol to enjoy their intoxicating effects.
38 V.S.C.A. § 105 creates a presumption of service connection for injuries that occur
during active duty unless a preponderance of the evidence establishes that the injury was
the result of the person's own willful misconduct. See Thomas v. Nicholson, 423 F.3d
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1279,1284-85 (Fed.Cir. 2005); Shedden v. Principi, 381 F.3d 1163, 1166 (Fed.Cir.
2004); see 38 C.F.R. § 3.1(m).
VAOPGPREC 2-97 (definition of line of duty excludes injury or disease resulting from
the person's own willful misconduct, including abuse of alcohol or drugs).
38 C.F.R. § 3.303. Principles relating to service connection.
(a) General. Service connection connotes many factors but basically it means that
the facts, shown by evidence, establish that a particular injury or disease resulting
in disability was incurred coincident with service in the Armed Forces, or if
preexisting such service, was aggravated therein....
(c) Preservice disabilities noted in service. There are medical principles so
universally recognized as to constitute fact (clear and unmistakable proof), and
when in accordance with these principles existence of a disability prior to service
is established, no additional or confirmatory evidence is necessary. ... In the
field of mental disorders, personality disorders which are characterized by
developmental defects or pathological trends in the personality structure
manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of
long duration or other psychiatric symptomatology shown to have existed prior to
service with the same manifestations during service, which were the basis of the
service diagnosis, will be accepted as showing preservice origin. Congenital or
developmental defects, refractive error of the eye, personality disorders and mental
deficiency as such are not diseases or injuries within the meaning of applicable
legislation.
B. PRESUMPTIONS
38 U.S.C.A. § 1112. Presumptions relating to certain diseases and disabilities
(a) For the purposes of section] 1] 0 of this title, and subject to the provisions of
section 1113 of this title, in the case of any veteran who served for ninety days or
more during a period of war--
(1) a chronic disease becoming manifest to a degree of 10 percent or more
within one year from the date of separation from such service; ...
shall be considered to have been incurred in or aggravated by such service,
notwithstanding there is no record of evidence of such disease during the
period of service.
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(b)(l) For the purposes of section 1110 of this title and subject to the provisions of
section 1113 of this title, in the case of a veteran who is a former prisoner of war--
(A) a disease specified in paragraph (2) which became manifest to a degree
of 10 percent or more after active military, naval, or air service shall be
considered to have been incurred in or aggravated by such service,
notwithstanding that there is no record of such disease during the period of
service; and
(B) if the veteran was detained or interned as a prisoner of war for not less
than thirty days, a disease specified in paragraph (3) which became
manifest to a degree of 10 percent or more after active military, naval, or air
service shall be considered to have been incurred in or aggravated by such
service, notwithstanding that there is no record of such disease during the
period of service.
(2) The diseases specified in this paragraph are the following:
(A) Psychosis.
(B) Any of the anxiety states.
(C) Dysthymic disorder (or depressive neurosis) ....
38 C.F.R. § 3.307 Presumptive service connection for chronic, tropical or prisoner-
of-war related disease, or disease associated with exposure to certain herbicide
agents; wartime and service on or after January 1, 1947.
(a) General. A chronic, [or]. .. prisoner of war related disease ... listed in § 3.309
will be considered to have been incurred in or aggravated by service under the
circumstances outlined in this section even though there is no evidence of such
disease during the period of service. No condition other than one listed in §
3.309(a) will be considered chronic.
(3) Chronic disease. The disease must have become manifest to a degree of
10 percent or more within 1 year ... from the date of separation from
servIce ....
(5) Diseases specific as to former prisoners of war. The diseases listed in §
3.309(c) shall have become manifest to a degree of 10 percent or more at
any time after discharge or release from active service....
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38 C.F.R. § 3.309 Disease subject to presumptive service connection.
(a) Chronic diseases. The following diseases shall be granted service conriection
although not otherwise established as incurred in or aggravated by service if
manifested to a compensable degree within the applicable time limits under §
3.307 following service in a period of war or following peacetime service on or
after January 1,1947, provided the rebuttable presumption provisions of § 3.307
are also satisfied....
Psychoses ....
(c) Diseases specific as to former prisoners of war.
(1) If a veteran is a former prisoner of war, the following diseases shall be
service connected if manifest to a degree of disability of 10 percent or more
at any time after discharge or release from active military, naval, or air
service even though there is no record of such disease during service,
provided the rebuttable presumption provisions of § 3.307 are also satisfied.
Psychosis.
Any of the anxiety states.
Dysthymic disorder (or depressive neurosis) ....
Note: The list of psychiatric disorders which may be presumed service-connected if a
veteran was a POW is the same for all paws, regardless of the length of the internment.
38 C.F.R. § 3.384. Psychosis.
For purposes of this part, the term "psychosis" means any of the following
disorders listed in Diagnostic and Statistical Manual of Mental Disorders, Fourth
Edition, Text Revision, of the American Psychiatric Association (DSM-IV-TR):
(a) Brief Psychotic Disorder;
(b) Delusional Disorder;
(c) Psychotic Disorder Due to General Medical Condition;
(d) Psychotic Disorder Not Otherwise Specified;
(e) Schizoaffective Disorder;
(f) Schizophrenia;
(g) Schizophreniform Disorder;
(h) Shared Psychotic Disorder; and
(i) Substance-Induced Psychotic Disorder.
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(NOTE: In comments accompanying 38 C.F.R. § 3.384, VA noted that it had considered
defining the term "psychosis" to include major depression with psychotic features, but
had decided to explude that illness because it did not conform to terminology used in the
American Psychiatric Association, Diagnostic And Statistical Manual of Mental
Disorders 32 (4th ed.) (1994) (DSM IV). 71 Fed. Reg. 42,758-60 (JuI. 28, 2006). Thus,
for example, a grant of service connection for major depression with psychotic features
does not serve to establish service connection for a psychosis.)
38 V.S.C.A. § 1117. Compensation for disabilities occurring in Persian Gulf War
veterans.
(a)(1) The Secretary may pay compensation under this subchapter to a Persian
Gulf veteran with a qualifying chronic disability that became manifest--
(A) during service on active duty in the Armed Forces in the Southwest
Asia theater of operations during the Persian Gulf War; or
(B) to a degree of 10 percent or more during the presumptive period
prescribed under subsection (b).
(2) For purposes of this subsection, the term "qualifying chronic disability"
means a chronic disability resulting from any of the following (or any
combination of any of the following):
(A) An undiagnosed illness.
(B) A medically unexplained chronic multisymptom illness (such as
chronic fatigue syndrome, fibromyalgia, and irritable bowel
syndrome) that is defined by a cluster of signs or symptoms.
(C) Any diagnosed illness that the Secretary determines in
regulations prescribed under subsection (d) warrants a presumption
of service-connection.
g) For purposes of this section, signs or symptoms that may be a manifestation of
an undiagnosed illness or a chronic multisymptom illness include the following:
(6) Neurological signs and symptoms.
(7) Neuropsychological signs or symptoms.
(NOTE: 38 C.F.R. § 3.317 is very similar to the statute and will not be repeated here.)
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C. AGGRAVATION
38 U.S.C.A. § 1111. Sound condition
For the purposes of section 1110 of this title, every veteran shall be taken to have
been in sound condition when examined, accepted, and enrolled for service, except
as to defects, infirmities, or disorders noted at the time of the examination,
acceptance, and enrollment, or where clear and unmistakable evidence
demonstrates that the injury or disease existed before acceptance and enrollment
and was not aggravated by such service.
38 C.F.R. § 3.304(b). Presumption of Soundness.
The veteran will be considered to have been in sound condition when examined,
accepted and enrolled for service, except as to defects, infirmities, or disorders
noted at entrance into service, or where clear and unmistakable (obvious or
manifest) evidence demonstrates that an injury or disease existed prior thereto and
was not aggravated by such service. Only such conditions as are recorded in
examination reports are to be considered as noted.
(1) History of preservice existence of conditions recorded at the time of
examination does not constitute a notation of such conditions but will be
considered together with all other material evidence in determinations as to
inception. Determinations should not be based on medical judgment alone
as distinguished from accepted medical principles, or on history alone
without regard to clinical factors pertinent to the basic character, origin and
development of such injury or disease. They should be based on thorough
analysis of the evidentiary showing and careful correlation of all material
facts, with due regard to accepted medical principles pertaining to the
history, manifestations, clinical course, and character of the particular
injury or disease or residuals thereof.
(2) History conforming to accepted medical principles should be given due
consideration, in conjunction with basic clinical data, and be accorded
probative value consistent with accepted medical and evidentiary principles
in relation to value consistent with accepted medical evidence relating to
incurrence, symptoms and course of the injury or disease, including official
and other records made prior to, during or subsequent to service, together
with all other lay and medical evidence concerning the inception,
development and manifestations of the particular condition will be taken
into full account.
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(3) Signed statements of veterans relating to the origin, or incurrence of any
disease or injury made in service if against his or her own interest is of no
force and effect if other data do not establish the fact. Other evidence will
be considered as though such statement were not of record.
38 V.S.C.A. § 1153. Aggravation
A preexisting injury or disease will be considered to have been aggravated by
active military, naval, or air service, where there is an increase in disability during
such service, unless there is a specific finding that the increase in disability is due
to the natural progress of the disease.
(NOTE: 38 C.F.R. § 3.306(a) repeats the statute verbatim.)
D. SPECIAL PROVISIONS
38 C.F.R. § 3.302. Service connection for mental unsoundness in suicide.
(a) General.
(1) In order for suicide to constitute willful misconduct, the act of self-
destruction must be intentional.
(2) A person of unsound mind is incapable of forming an intent (mens rea,
or guilty mind, which is an essential element of crime or willful
misconduct).
(3) It is a constant requirement for favorable action that the precipitating
mental unsoundness be service connected.
(b) Evidence of mental condition.
(1) Whether a person, at the time of suicide, was so unsound mentally that
he or she did not realize the consequence of such an act, or was unable to
resist such impulse is a question to be determined in each individual case,
based on all available lay and medical evidence pertaining to his or her
mental condition at the time of suicide.
(2) The act of suicide or a bona fide attempt is considered to be evidence of
mental unsoundness. Therefore, where no reasonable adequate motive for
suicide is shown by the evidence, the act will be considered to have resulted
from mental unsoundness.
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(3) A reasonable adequate motive for suicide may be established by
affirmative evidence showing circumstances which could lead a rational
person to self-destruction.
(c) Evaluation of evidence.
(1) Affirmative evidence is necessary to justify reversal of service department
findings of mental unsoundness where Department of Veterans Affairs criteria
do not otherwise warrant contrary findings.
(2) In all instances any reasonable doubt should be resolved favorably to
support a finding of service connection (see § 3.102).
38 C.F.R. § 3.304(1). Direct service connection: PTSD.
Post-traumatic stress disorder. Service connection for post-traumatic stress
disorder requires medical evidence diagnosing the condition in accordance with §
4.125(a) of this chapter; a link, established by medical evidence, between current
symptoms and an in-service stressor; and credible supporting evidence that the
claimed in-service stressor occurred. Although service connection may be
established based on other in-service stressors, the following provisions apply for
specified in-service stressors as set forth below:
(1) If the evidence establishes that the veteran engaged in combat with the
enemy and the claimed stressor is related to that combat, in the absence of
clear and convincing evidence to the contrary, and provided that the
claimed stressor is consistent with the circumstances, conditions, or
hardships of the veteran's service, the veteran's lay testimony alone may
establish the occurrence of the claimed in-service stressor.
(2) If the evidence establishes that the veteran was a prisoner-of-war under
the provisions of § 3.1(y) of this part and the claimed stressor is related to
that prisoner-of-war experience, in the absence of clear and convincing
evidence to the contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions, or hardships of the veteran's
service, the veteran's lay testimony alone may establish the occurrence of
the claimed in-service stressor.
(3) If a post-traumatic stress disorder claim is based on in-service personal
assault, evidence from sources other than the veteran's service records may
corroborate the veteran's account of the stressor incident. Examples of such
evidence include, but are not limited to: records from law enforcement
authorities, rape crisis centers, mental health counseling centers, hospitals,
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or physicians; pregnancy tests or tests for sexually transmitted diseases; and
statements from family members, roommates, fellow service members, or
clergy. Evidence of behavior changes following the claimed assault is one
type of relevant evidence that may be found in these sources. Examples of
behavior changes that may constitute credible evidence of the stressor
include, but are not limited to: a request for a transfer to another military
duty assignment; deterioration in work performance; substance abuse;
episodes of depression, panic attacks, or anxiety without an identifiable
cause; or unexplained economic or social behavior changes. VA will not
deny a post-traumatic stress disorder claim that is based on in-service
personal assault without first advising the claimant that evidence from
sources other than the veteran's service records or evidence of behavior
changes may constitute credible supporting evidence of the stressor and
allowing him or her the opportunity to furnish this type of evidence or
advise VA of potential sources of such evidence. VA may submit any
evidence that it receives to an appropriate medical or mental health
professional for an opinion as to whether it indicates that a personal assault
occurred.
Related: 38 V.S.C.A. § 1154 Combat Presumption (If a veteran engaged in combat and
the claimed stressor is combat related, the veteran's lay testimony is generally sufficient
to establish the occurrence of the claimed in-service stressor, see Collette v. Brown, 82
F.3d 389, 392 (Fed. Cir. 1996).
Pentecost v. Principi, 16 Vet. App. 124 (2002) (stating that a veteran need not
corroborate a noncombat stressor of enemy rocket attacks on a base where his unit was
stationed with evidence of his physical proximity to, or firsthand experience with, the
attacks, but rather that his presence with the unit at the time the attacks occurred
corroborates his statement that he experienced such attacks personally); Cohen v. Brown,
10 Vet. App. 128 (1997) (stressors where there is no finding that the veteran has
personally engaged in combat with the enemy).
Hernandez-Toyens v. West, 11 Vet. App. 379 (1998) (stating that, in listing military
experience as an Axis IV psychosocial stressor the examiner made a determination
that the event was an etiologically significant psychosocial stressor contributing to the
current condition, and this notation in Axis IV constituted positive evidence to
support the veteran's claim).
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II. INCREASED RATINGS
A. STATUTE
38 V.S.C.A. § 1155
The Secretary shall adopt and apply a schedule of ratings of reductions in earning
capacity from specific injuries or combination of injuries. The ratings shall be
based, as far as practicable, upon the average impairments of earning capacity
resulting from such injuries in civil occupations. The schedule shall be
constructed so as to provide ten grades of disability and no more, upon which
payments of compensation shall be based, namely, 10 percent, 20 percent, 30
percent, 40 percent, 50 percent, 60 percent, 70 percent, 80 percent, 90 percent, and
total, 100 percent. The Secretary shall from time to time readjust this schedule of
ratings in accordance with experience. However, in no event shall such a
readjustment in the rating schedule cause a veteran's disability rating in effect on
the effective date of the readjustment to be reduced unless an improvement in the
veteran's disability is shown to have occurred.
B. CURRENT REGULATIONS
38 C.F.R. § 4.13 Effect of change of diagnosis.
The repercussion upon a current rating of service connection when change is made
of a previously assigned diagnosis or etiology must be kept in mind. The aim
should be the reconciliation and continuance of the diagnosis or etiology upon
which service connection for the disability had been granted. The relevant
principle enunciated in § 4.125, entitled "Diagnosis of mental disorders," should
have careful attention in this connection. When any change in evaluation is to be
made, the rating agency should assure itself that there has been an actual change in
the conditions, for better or worse, and not merely a difference in thoroughness of
the examination or in use of descriptive terms. This will not, of course, preclude
the correction of erroneous ratings, nor will it preclude assignment of a rating in
conformity with § 4.7.
38 C.F.R. § 4.125 Diagnosis of mental disorders.
(a) If the diagnosis of a mental disorder does not conform to DSM-IV or is not
supported by the findings on the examination report, the rating agency shall return
the report to the examiner to substantiate the diagnosis.
(b) If the diagnosis of a mental disorder is changed, the rating agency shall
determine whether the new diagnosis represents progression of the prior diagnosis,
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correction of an error in the prior diagnosis, or development of a new and separate
condition. If it is not clear from the available records what the change of diagnosis
represents, the rating agency shall return the report to the examiner for a
determination.
38 C.F.R. § 4.126 Evaluation of disability from mental disorders.
(a) When evaluating a mental disorder, the rating agency shall consider the
frequency, severity, and duration of psychiatric symptoms, the length of
remissions, and the veteran's capacity for adjustment during periods of remission.
The rating agency shall assign an evaluation based on all the evidence of record
that bears on occupational and social impairment rather than solely on the
examiner's assessment of the level of disability at the moment of the examination.
(b) When evaluating the level of disability from a mental disorder, the rating
agency will consider the extent of social impairment, but shall not assign an
evaluation solely on the basis of social impairment.
(c) Delirium, dementia, and amnestic and other cognitive disorders shall be
evaluated under the general rating formula for mental disorders; neurologic
deficits or other impairments stemming from the same etiology (e.g., a head
injury) shall be evaluated separately and combined with the evaluation for
delirium, dementia, or amnestic or other cognitive disorder (see Sec. 4.25).
(d) When a single disability has been diagnosed both as a physical condition and
as a mental disorder, the rating agency shall evaluate it using a diagnostic code
which represents the dominant (more disabling) aspect of the condition (see Sec.
4.14).
38 C.F.R. §. 4.127 Mental retardation and personality disorders.
Mental retardation and personality disorders are not diseases or injuries for
compensation purposes, and, except as provided in Sec. 3.310(a) of this chapter,
disability resulting from them may not be service-connected. However, disability
resulting from a mental disorder that is superimposed upon mental retardation or a
personality disorder may be service-connected.
38 C.F.R. § 4.128 Convalescence ratings following extended hospitalization.
If a mental disorder has been assigned a total evaluation due to a continuous
period of hospitalization lasting six months or more, the rating agency shall
continue the total evaluation indefinitely and schedule a mandatory examination
six months after the veteran is discharged or released to nonbed care. A change in
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evaluation based on that or any subsequent examination shall be subject to the
provisions of Sec. 3.1 05(e) of this chapter.
38 C.F.R. § 4.129 Mental disorders due to traumatic stress.
When a mental disorder that develops in service as a result of a highly stressful
event is severe enough to bring about the veteran's release from active military
service, the rating agency shall assign an evaluation of not less than 50 percent and
schedule an examination within the six month period following the veteran's
discharge to determine whether a change in evaluation is warranted.
38 C.F.R. § 4.130 Schedule of ratings--mental disorders.
The nomenclature employed in this portion of the rating schedule is based upon
the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the
American Psychiatric Association (DSM-IV). Rating agencies must be thoroughly
familiar with this manual to properly implement the directives in Sec. 4.125
through Sec. 4.129 and to apply the general rating formula for mental disorders in
Sec. 4.130. The schedule for rating for mental disorders is set forth as follows:
Rating
Schizophrenia and Other Psychotic Disorders
9201 Schizophrenia, disorganized type
9202 Schizophrenia, catatonic type
9203 Schizophrenia, paranoid type
9204 Schizophrenia, undifferentiated type
9205 Schizophrenia, residual type; other and unspecified types
9208 Delusional disorder
9210 Psychotic disorder, not otherwise specified (atypical psychosis)
9211 Schizoaffective disorder
Delirium, Dementia, and Amnestic and Other Cognitive Disorders
9300 Delirium
9301 Dementia due to infection (HIV infection, syphilis, or other systemic or
intracranial infections)
9304 Dementia due to head trauma
9305 Vascular dementia
9310 Dementia of unknown etiology
9312 Dementia of the Alzheimer's type
17
9326 Dementia due to other neurologic or general medical conditions (endocrine
disorders, metabolic disorders, Pick's disease, brain tumors, etc.) or that are
substance- induced (drugs, alcohol, poisons)
9327 Organic mental disorder, other (including personality change due to a general
medical condition)
Anxiety Disorders
9400 Generalized anxiety disorder
9403 Specific (simple) phobia; social phobia
9404 Obsessive compulsive disorder
9410 Other and unspecified neurosis
9411 Post-traumatic stress disorder
9412 Panic disorder and/or agoraphobia
9413 Anxiety disorder, not otherwise specified
Dissociative Disorders
9416 Dissociative amnesia; dissociative fugue; dissociative identity disorder
(multiple personality disorder)
9417 Depersonalization disorder
Somatoform Disorders
9421 Somatization disorder
9422 Pain disorder
9423 Undifferentiated somatoform disorder
9424 Conversion disorder
9425 Hypochondriasis
Mood Disorders
9431 Cyclothymic disorder
9432 Bipolar disorder
9433 Dysthymic disorder
9434 Major depressive disorder
9435 Mood disorder, not otherwise specified
Chronic Adjustment Disorder
9440 Chronic adjustment disorder
18
General Rating Formula for Mental Disorders:
Total occupational and social impairment, due to such
symptoms as: gross impairment in thought processes or
communication;persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities of daily
living (including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, own occupation, or own name 100
Occupational and social impairment, with deficiencies in
most areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal ideation;
obsessional rituals which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-continuous
panic or depression affecting the ability to function independently,
appropriately and effectively; impaired impulse control (such as
unprovoked irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including work
or a worklike setting); inability to establish and maintain effective
relationships 70
Occupational and social impairment with reduced reliability
and productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term
memory (e.g., retention of only highly learned material,
forgetting to complete tasks); impaired judgment; impaired
abstract thinking; disturbances of motivation and mood;
difficulty in establishing and maintaining effective work and
social relationships 50
Occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to perform
occupational tasks (although generally functioning satisfactorily,
with routine behavior, self-care, and conversation normal), due to
such symptoms as: depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep impairment,
mild memory loss (such as forgetting names, directions, recent
events) ~ 30
19
Occupational and social impairment due to mild or transient
symptoms which decrease work efficiency and ability to
perform occupational tasks only during periods of significant
stress, or; symptoms controlled by continuous medication 10
A mental condition has been formally diagnosed, but symptoms
are not severe enough either to interfere with occupational and
social functioning or to require continuous medication 0
Eating Disorders
9520 Anorexia nervosa
9521 Bulimia nervosa
Rating Formula for Eating Disorders:
Self-induced weight loss to less than 80 percent of expected
minimum weight, with incapacitating episodes of at least six
weeks total duration per year, and requiring hospitalization
more than twice a year for parenteral nutrition or tube
feeding 100
Self-induced weight loss to less than 85 percent of expected
minimum weight with incapacitating episodes of six or more
weeks total duration per year. 60
Self-induced weight loss to less than 85 percent of expected
minimum weight with incapacitating episodes of more than two
but less than six weeks total duration per year 30
Binge eating followed by self-induced vomiting or other measures
to prevent weight gain, or resistance to weight gain even when
below expected minimum weight, with diagnosis of an eating
disorder and incapacitating episodes of up to two weeks total
duration per year 10
Binge eating followed by self-induced vomiting or other measures
to prevent weight gain, or resistance to weight gain even when
below expected minimum weight, with diagnosis of an eating
disorder but without incapacitating episodes 0
Note: An incapacitating episode is a period during which bed rest and treatment by a
physician are required.
Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the
effects of the service-connected condition versus a nonservice-connected condition (such
as a personality disorder), 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in
20
the claimant's favor, thus attributing such signs and symptoms to the service-connected
disability) .
Best v. Brown, 10 Vet. App. 322 (1997) (denial of service connection for personality
disorder and adjustment reaction did not constitute a final denial of service connection for
generalized anxiety disorder, as these are distinct conditions).
Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a
disability for any increased evaluation claim, the Board must consider the application of
staged ratings) and Fenderson v. West, 12 Vet. App. 119 (1999) (staged ratings in initial
ratings following a grant of service connection) apply to ratings of psychiatric disability.
21
C. OLD REGULATIONS (PRE-1996 CHANGES)
38 C.F.R. § 4.125. General considerations.
The field of mental disorders represents the greatest possible variety of etiology,
chronicity and disabling effects, and requires differential consideration in these
respects. These sections under mental disorders are concerned with the rating of
psychiatric conditions, specifically psychotic and psychoneurotic disorders and
psychological factors affecting physical conditions as well as organic mental
disorders. Advances in modem psychiatry during and since World War II have
been rapid and profound and have extended to the entire medical profession a
better understanding of and deeper insight into the etiological factors,
psychodynamics, and psychopathological changes which occur in mental disease
and emotional disturbances. The psychiatric nomenclature employed is based upon
the Diagnostic and Statistical Manual of Mental Disorders, Third Edition (DSM-
III), American Psychiatric Association. This nomenclature has been adopted by
the Veterans Health Services and Research Administration of the Department of
Veterans Affairs. It limits itself to the classification of disturbances of mental
functioning. To comply with the fundamental requirements for rating psychiatric
conditions, it is imperative that rating personnel familiarize themselves thoroughly
with this manual (American Psychiatric Association Manual, 1980 Edition) which
will be hereinafter referred to as the APA manual.
38 C.F.R. § 4.126. Substantiation of diagnosis.
It must be established first that a true mental disorder exists. The disorder will be
diagnosed in accordance with the APA manual. A diagnosis not in accord with this
manual is not acceptable for rating purposes and will be returned through channels
to the examiner. Normal reactions of discouragement, anxiety, depression, and
self-concern in the presence of physical disability, dissatisfaction with work
environment, difficulties in securing employment, etc., must not be accepted by
the rating board as indicative of psychoneurosis. Moreover, mere failure of social
or industrial adjustment or the presence of numerous complaints should not, in the
absence of definite symptomatology typical of a psychoneurotic or psychological
factor affecting physical condition, become the acceptable basis of a diagnosis in
this field. It is the responsibility of rating boards to accept or reject diagnoses
shown on reports of examination. If a diagnosis is not supported by the findings
shown on the examination report, it is incumbent upon the board to return the
report for clarification.
22
38 C.F.R. § 4.127. Mental deficiency and personality disorders.
Mental deficiency and personality disorders will not be considered as disabilities
under the terms of the schedule. Attention is directed to the outline of personality
disorders in the APA manual. Formal psychometric tests are essential in the
diagnosis of mental deficiency. Brief emotional outbursts or periods of confusion
are not unusual in mental deficiency or personality disorders and are not
acceptable as the basis for a diagnosis of psychotic disorder. However, properly
diagnosed superimposed psychotic disorders developing after enlistment, i.e.,
mental deficiency with psychotic disorder, or personality disorder with psychotic
disorder, are to be considered as disabilities analogous to, and ratable as,
schizophrenia, unless otherwise diagnosed.
38 C.F.R. § 4.128. Change of diagnosis.
Rating boards encountering a change of diagnosis will exercise caution in the
determination as to whether a change in diagnosis represents no more than a
progression of an earlier diagnosis, an error in a prior diagnosis, or possibly a
disease entity independent of the service-connected psychiatric disorder.
38 C.F.R. § 4.129. Social inadaptability.
Social integration is one of the best evidences of mental health and reflects the
ability to establish (together with the desire to establish) healthy and effective
interpersonal relationships. Poor contact with other human beings may be an index
of emotional illness. However, in evaluating impairment resulting from the ratable
psychiatric disorders, social inadaptability is to be evaluated only as it affects
industrial adaptability. The principle of social and industrial inadaptability as the
basic criterion for rating disability from the mental disorders contemplates those
abnormalities of conduct, judgment, and emotional reactions which affect
economic adjustment, i.e., which produce impairment of earning capacity.
38 C.F.R. § 4.130. Evaluation of psychiatric disability.
The severity of disability is based upon actual symptomatology, as it affects social
and industrial adaptability. Two of the most important determinants of disability
are time lost from gainful work and decrease in work efficiency. The rating board
must not underevaluate the emotionally sick veteran with a good work record, nor
must it overevaluate his or her condition on the basis of a poor work record not
supported by the psychiatric disability picture. It is for this reason that great
emphasis is placed upon the full report of the examiner, descriptive of actual
symptomatology. The record of the history and complaints is only preliminary to
the examination. The objective findings and the examiner's analysis of the
23
symptomatology are the essentials. The examiner's classification of the disease as
"mild," "moderate," or "severe" is not determinative of the degree of disability, but
the report and the analysis of the symptomatology and the full consideration of the
whole history by the rating agency will be. In evaluating disability from psychotic
disorders it is necessary to consider, in addition to present symptomatology or its
absence, the frequency, severity, and duration of previous psychotic periods, and
the veteran's capacity for adjustment during periods of remission. Repeated
psychotic periods, without long remissions, may be expected to have a sustained
effect upon employability until elapsed time in good remission and with good
capacity for adjustment establishes the contrary. Ratings are to be assigned which
represent the impairment of social and industrial adaptability based on all of the
evidence of record. (See § 4.16 regarding the issue of individual unemployability
based on mental disorder.) Evidence of material improvement in psychotic
disorders disclosed by field examination or social survey should be utilized in
determinations of competency, but the fact will be borne in mind that a person
who has regained competency may still be unemployable, depending upon the
level of his or her disability as shown by recent examinations and other evidence
of record.
38 C.F.R. § 4.131. Mental disorders due to psychic trauma.
Certain mental disorders having their onset as an incident of battle or enemy
action, or following bombing, shipwreck, imprisonment, exhaustion, or prolonged
operational fatigue may at the outset be designated as gross stress disorder,
"combat fatigue," "exhaustion," or anyone of a number of special terms. These
conditions may clear up entirely, permitting return to full or limited duty, or they
may persist as one of the recognized mental disorders, particularly generalized
anxiety disorder, or recur as stress disorder. If the mental disorder
is sufficiently severe to warrant discharge from service, a minimum rating of 50
percent will be assigned with an examination to be scheduled within 6 months
from discharge.
38 C.F.R. § 4.132. Schedule of ratings--mental disorders.
PSYCHOTIC DISORDERS
Rating
9201 Schizophrenia, disorganized type.
9202 Schizophrenia, catatonic type.
9203 Schizophrenia, paranoid type.
9204 Schizophrenia, undifferentiated type.
24
9205 Schizophrenia, residual type; schizoaffective disorder; other and unspecified types.
9206 Bipolar disorder, manic, depressed, or mixed.
9207 Major depression with psychotic features.·
9208 Paranoid disorders (specify type).
9209 Major depression with melancholia.
9210 Atypical psychosis.
General Rating Formula for Psychotic Disorders:
Active psychotic manifestations of such extent, severity, depth, persistence
or bizarreness as to produce total social and industrial inadaptability 100
With lesser symptomatology such as to produce severe impairment of social
and industrial adaptability 70
Considerable impairment of social and industrial adaptability 50
Definite impairment of social and industrial adaptability 30
Mild impairment of social and industrial adaptability 10
Psychosis in full remission 0
Convalescent rating in psychotic disorders:
Upon regular discharge or release to non-bed care from a hospital where a beneficiary has
been under care and treatment for a continuous period in the hospital of not less than 6
months, an open rating of 100 percent will be continued for 6 months. A VA examination
is mandatory at the expiration of the 6-month period, after which the condition will be
rated in accordance with the degree of disability shown. Where the beneficiary has been
under hospital care and treatment for less than 6 months and is not ratable at 100 percent
under the rating formula, consideration should be given to § 4.29.
ORGANIC MENTAL DISORDERS
Rating
9300 Delirium associated with infection, trauma, circulatory disturbance, etc.
NOTE: Acute organic mental disorders with or without accompanying psychotic
disorder are temporary and reversible. If psychiatric impairment attributable to such
diagnosis continues beyond 6 months, the report of examination is to be returned to
the examiner for reconsideration of the diagnosis.
9301 Dementia associated with central nervous system syphilis.
9302 Dementia associated with intracranial infections other than syphilis.
9303 Dementia associated with alcoholism.
9304 Dementia associated with brain trauma.
9305 Multi-infarct dementia with cerebral arteriosclerosis.
25
9306 Multi-infarct dementia due to causes other than cerebral arteriosclerosis.
9307 Dementia associated with convulsive disorder (idiopathic epilepsy).
9308 Dementia associated with disturbances of metabolism.
9309 Dementia associated with brain tumor.
9310 Dementia due to unknown cause.
9311 Dementia due to undiagnosed cause.
9312 Dementia, primary, degenerative.
9315 Dementia associated with epidemic encephalitis.
9322 Dementia associated with endocrine disorder.
9324 Dementia associated with systemic infection.
9325 Dementia associated with drug or poison intoxication (other than alcohol).
Before attempting to rate organic mental disorders, rating specialists should become
thoroughly acquainted with the relevant concepts presented by the current Diagnostic and
Statistical Manual of the American Psychiatric Association and the following:
(1) Under the codes above, the basic syndrome of organic mental disorder may be
the only mental disturbance present or it may appear with related "psychotic"
manifestations. An organic mental disorder with or without such qualifying phrase
will be rated according to the general rating formula for organic mental disorders,
assigning a rating which reflects the entire psychiatric picture.
(2) An organic mental disorder, as defined in the American Psychiatric
Association manual, is characterized solely by psychiatric manifestations.
However, neurological or other manifestations of etiology common to the mental
disorder may be present, and if present, are to be rated separately as distinct
entities under the neurological or other appropriate system and combined with the
rating for the mental disorder.
General Rating Formula for Organic Mental Disorders:
Impairment of intellectual functions, orientation, memory and judgment,
and lability and shallowness of affect of such extent, severity, depth, and
persistence as to produce total social and industrial inadaptability 100
Less than 100 percent, in symptom combinations productive of:
Severe impairment of social and industrial adaptability 70
Considerable impairment of social and industrial adaptability 50
Definite impairment of social and industrial adaptability 30
Mild impairment of social and industrial adaptability 10
No impairment of social and industrial adaptability 0
26
PSYCHONEUROTIC DISORDERS
Rating
9400 Generalized anxiety disorder
9401 Psychogenic amnesia; psychogenic fugue; multiple personality
9402 Conversion disorder; psychogenic pain disorder.
9403 Phobic disorder
9404 Obsessive compulsive disorder
9405 Dysthymic disorder; Adjustment disorder with depressed mood; Major depression
without melancholia
9408 Depersonalization disorder
9409 Hypochondriasis
9410 Other and unspecified neurosis
9411 Post-traumatic stress disorder
Read well notes (1) to (4) following general rating formula before applying the general
rating formula.
General Rating Formula for Psychoneurotic Disorders:
The attitudes of all contacts except the most intimate are so adversely
affected as to result in virtual isolation in the community. Totally
incapacitating psychoneurotic, 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.
Demonstrably unable to obtain or retain employment 100
Ability to establish and maintain effective or favorable relationships
with people is severely impaired. The psychoneurotic symptoms are
of such severity and persistence that there is severe impairment in the
ability to obtain or retain employment 70
Ability to establish or maintain effective or favorable relationships
with people is considerably impaired. By reason of psychoneurotic
symptoms the reliability, flexibility and efficiency levels are so
reduced as to result in considerable industrial impairment 50
Definite impairment in the ability to establish or maintain effective
and wholesome relationships with people. The psychoneurotic
symptoms result in such reduction in initiative, flexibility, efficiency
and reliability levels as to produce definite industrial impairment 30
27
Less than criteria for the 30 percent, with emotional tension or
other evidence of anxiety productive of mild social and industrial
impairment 10
There are neurotic symptoms which may somewhat adversely affect
relationships with others but which do not cause impairment of working
ability 0
NOTE (1). Social impairment per se will not be used as the sole basis for any specific
percentage evaluation, but is of value only in substantiating the degree of disability based
on all of the findings.
NOTE (2). The requirements for a compensable rating are not met when the psychiatric
findings are not more characteristic than minor alterations of mood beyond normal limits;
fatigue or anxiety incident to actual situations; minor compulsive acts or phobias;
occasional stuttering or stammering; minor habit spasms or tics; minor subjective sensory
disturbances such as anosmia, deafness, loss of sense of taste, anesthesia, paresthesia, etc.
When such findings actually interfere with employability to a mild degree, a 10 percent
rating under the general rating formula may be assigned.
NOTE (3). It is to be emphasized that vague complaints are not to be erected into a
concept of conversion disorder. A diagnosis of conversion disorder must be established
on the basis of specific distinctive findings characteristic of such disturbance and not
merely by exclusion of organic disease. If a diagnosis of conversion disorder is found by
the rating board to be inadequately supported by
findings, the report of examination will be returned through channels to the examiner for
reconsideration.
NOTE (4). When two diagnoses, one organic and the other psychological or
psychoneurotic, are presented covering the organic and psychiatric aspects of a single
disability entity, only one percentage evaluation will be assigned under the appropriate
diagnostic code determined by the rating board to represent the major degree of
disability. When the diagnosis of the same basic disability is changed from an organic
one to one in the psychological or psychoneurotic categories, the
condition will be rated under the new diagnosis.
PSYCHOLOGICAL FACTORS AFFECTING PHYSICAL CONDITION
Rating
9500 Psychological factors affecting skin condition.
9501 Psychological factors affecting cardiovascular condition.
9502 Psychological factors affecting gastrointestinal condition.
28
9505 Psychological factors affecting musculoskeletal condition.
9506 Psychological factors affecting respiratory condition.
9507 Psychological factors affecting hemic and lymphatic condition.
9508 Psychological factors affecting genitourinary condition.
9509 Psychological factors affecting endocrine condition.
9510 Psychological factors affecting condition of organ of special sense (specify
sense organ).
9511 Psychological factors affecting other type of physical condition.
Evaluate psychological factors affecting physical condition by the general rating formula
for psychoneurotic disorders.
NOTE (1). It is to be emphasized that vague complaints are not to be erected into a
concept of psychological disorder. A diagnosis of a psychological disorder affecting
physical condition must be established on specific distinctive findings characteristic of
such disturbance and not merely by exclusion of organic disease. If a diagnosis of a
psychological disorder is found by the rating board to be inadequately supported by
findings, the report of examination will be returned.
NOTE (2). When two diagnoses, one organic and the other psychological or
psychoneurotic, are presented covering the organic and psychiatric aspects of a single
disability entity, only one percentage evaluation will be assigned under the appropriate
diagnostic code determined by the rating board to represent the major degree of
disability. When the diagnosis of the same basic disability is changed from an organic
one to one in the psychological or psychoneurotic categories, the
condition will be rated under the new diagnosis.
Interpretations of the "old" Rating Schedule:
VAOPGCPREC 07-89 (effective in February 1988, the Rating Schedule was amended
to describe the impairment as 'total' for a 100% rating, 'severe' for a 70% rating,
'considerable' for a 50% rating, 'definite' for a 30% rating, and 'mild' for a 10% rating for
all three categories of psychiatric disorders, psychotic disorders, organic disorders, and
psychoneurotic disorders; prior to the amendments, some differences existed within the
several categories of disorders, e.g., for a neurosis or psychophysiologic disorder, 'severe'
impairment had warranted a 50% rating, whereas for a psychosis or organic brain
disorder, 'severe' impairment warranted a 70% rating; this opinion held that there was no
requirement that existing ratings in neuropsychiatric cases remain unaffected by the
adjustments in terminology).
VAOPGCPREC 75-91 ("unemployability" and "inability to secure and follow
a substantially gainful occupation" are interchangeable concepts within the context of
38 C.P.R. §§ 3.340, 3.341, 4.16, 4.18, and 4.19)
29
Note that 38 C.F.R. § 4.16(c) was deleted from the "new" regulations. See BVA
Chairman's Memo 01-91-12 for interpretation of 38 c.P.R. § 4.16(c), where it is
applicable.
Johnson v. Brown, 7 Vet. App. 95, 97 (1994) (holding that the criteria in 38 C.P.R.
§ 4.132, Diagnostic Code 9411 [attitudes of all contacts except the most intimate were so
adversely affected as to result in virtual isolation in the community, or when there were
totally incapacitating psychoneurotic, 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, or when the veteran was demonstrably unable to
obtain or retain employment] are independent alternative qualifying criteria for a total
(100 percent) evaluation.
VAOPGCPREC 9-93 (holding that the term "definite" as used in 38 C.P.R. § 4.132
should be construed to mean distinct, unambiguous and moderately large in degree,
more than moderate but less than rather large); see Hood v. Brown, 4 Vet. App. 301
(1993).
30

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