Citation Nr: 0001541 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 96-50 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a rating in excess of 70 percent for post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from July 1969 to January 1971. This matter comes to the Board of Veterans' Appeals (Board) from rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. FINDING OF FACT The veteran's service-connected PTSD is manifested by multiple symptoms of avoidance, problems with concentration, an exaggerated startle, anger, a depressed mood, and anxiousness. His impairment is no more than severe, and total occupational and social impairment is not shown. CONCLUSION OF LAW The schedular criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.132 and Part 4, Diagnostic Code (DC) 9411 (1996 and 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The records shows that the veteran submitted a claim for entitlement to service connection for PTSD in March 1994. Service connection for PTSD was granted in an August 1997 rating action, and a 50 percent rating was assigned, effective from March 31, 1994. This grant was based on consideration of various records, to include a VA medical records from October 1996 which reflects that his signs and symptoms were characterized by isolation, avoidance of human relationships, checking the perimeter, anger episodes, and the inability to hold jobs, hypervigilance, startle response, nightmares, and flashbacks. It was noted that his PTSD symptoms dated back to Vietnam but were exacerbated when he witnessed a co-worked cut into two while working on an oil rig. The diagnostic impression was PTSD, chronic and severe, related to both his inservice experiences in Vietnam and job related trauma in 1990. A private clinical psychologist, Anthony C. Plane, Ph.D., reported in June 1997 that the veteran was first seen at the "Vet Center" in April 1994. He was initially seen as a referral from the VA for individual psychotherapy. His symptoms included nightmares, isolation, hypervigilance, rage behaviors, inability to have social relationships and the inability to maintain employment. During the initial interview, the veteran had an anxiety reaction to questions about his service in Vietnam and almost ran from the office. A need for treatment of PTSD and related symptoms of depression was assessed. It was noted that he was a willing participant in varied modalities of treatment from April 1994 through November 1996, but that his progress was minimal. The psychologist noted that the veteran had since found employment working in a very flexible situation. Although he supervised a small crew, he had had an exacerbation of symptoms of isolation, anxiety, nightmares, and checking the parameter. He continued on his medication. Upon VA examination in July 1997, it was noted though he took his medications (Xanax and trazodone) as prescribed, he did not sleep well at night, awaking to check the perimeter. He worked 4 days a week with a small crew but "just manages to make it to the end of the week without quitting." On weekends, he secluded himself. He had nightmares about once a week, in which he saw the faces of people who were dying, related to his experiences in Vietnam. The veteran had a marked startle reaction and isolated himself from his family. Upon mental status examination, he was alert and cooperative. His mood was dysphoric and anxious. His anxiety became more intense when he talked about his experiences in Vietnam. His affect was appropriate to expressed thought content. His speech was normal in rate and amount, and the content was relevant and goal-directed. There was no evidence of hallucinations, nor of delusions detected. He was oriented for time, place, and person. Memory for recent and recent events was grossly intact. A Global Assessment of Functioning (GAF) Scale of 55 was assigned. In a March 1998 statement by a VA counseling psychologist, it was noted that the veteran had been denied benefits from vocational rehabilitation based on his disability. Upon VA examination in April 1999, the veteran stated that he was distressed with the fact that his brother had recently been diagnosed with pancreatic cancer. He continued to be seen at the Vet Center. He said that he was almost homeless, but the examiner noted that after reading the records, it was not clear whether he was homeless or rather that he preferred not to be located in Houston because he frequently went to Central and South America. He was questioned about this and said that when he was in South America, he felt less stress. He reported that he had no family and no social life. He did not sleep and avoided contact with others. The veteran reported that he had nightmares almost constantly, and it was noted that he was numerous medications to include Xanax, trazodone and Serzone. Although the veteran reported that he had not worked since the 1990 oil rig incident, the examiner noted that the record showed that he had worked intermittently since that accident but never for a long period of time. Currently, he lived in his father's home. His father was in a nursing home. He reported that he "bunkers down" and did not see anybody. He said that preferred to be somewhere else. He denied having friends and social contact. When requestioned about his work history, he said that since the 1990 incident, he had only been able to work for small amounts of time because when he had to take responsibility for other people, he became too distracted and found that the stress of an ordinary work situation such as deadlines was overwhelming and he felt compelled to leave. He reported that he had not worked in the past year since March of 1988. He worked for three months in 1988 and for ten months in 1997 in construction. He worked for five months in 1996 and for three months in prior to that. A symptom review reflected that the veteran reported being depressed for several years. He did not sleep much and had no interests. He felt badly about himself and felt that he had excess energy that was wasted. He felt problems with concentration and reported that he attempted to start a repair job at his father's home but was "unable to finish it" and felt compelled to start some other job. He found that he never finished anything. He reported that his appetite was excessive and he ate when there was nothing else to do. No psychomotor abnormalities were noted, and he denied suicidal ideations. He recurrently thought of Vietnam experiences and had multiple symptoms of avoidance. He preferred not to think about Vietnam and avoided war movies. He had multiple symptoms of avoidance, and he reported that his problems with concentration and an exaggerated startle response. He also said that he had problems with his anger. Upon mental status examination, the veteran was described as cooperative with fluent speech at a normal rate and rhythm. His mood was depressed and anxious, and his affect was full and appropriate to his expressed thoughts. No lability of affect was noted. His thought process was coherent. He was without any signs of symptoms of a psychotic process and at the time of the interview, he was without any specific ideas, intentions or plans of harming himself or others. He was awake, alert, and approximately oriented. He did not know the county he was in, and he thought that he was on the sixth floor rather than the fifth floor. He could repeat three words immediately but only one after five minutes. He would not or could not perform serial seven or serial three subtractions, and he could not spell a five-letter word backwards correctly. He had difficulty repeating "no ands, ifs or buts," and he made one mistake in following a 3-step command. He could name the current president but none other. The diagnosis was chronic PTSD, and his GAF score was 45. The examiner added that given the veteran's GAF score of 45 indicating serious impairment in social functioning. He was quite isolated, and he also had problems completing tasks as demonstrated by his low score on the "Folstein mini mental status examination although this may be influenced by the medications the veteran is taking." It was the examiner's opinion that a combination of the veteran's symptoms and the medications that he was taking for them made him unable to maintain employment on the competitive market. Pertinent Laws and Regulations A person who submits a claim for benefits under a law administered by the VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Where a disability has already been service-connected and there is a claim for an increased rating, a mere allegation that the disability has become more severe is sufficient to establish a well-grounded claim. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Accordingly, the Board finds that the veteran's claims for increased ratings are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1999). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.49 (1999); DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). The rating criteria for mental disorders, 38 C.F.R. § 4.125 et seq., were amended in November 1996, during the pendency of this appeal. The Court has stated that where the law or regulation changes during the pendency of a case, the version most favorable to the veteran will generally be applied. See West v. Brown, 7 Vet. App. 70, 76 (1994); Hayes v. Brown, 5 Vet. App. 60, 66-67 (1993); Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The VA's General Counsel provided additional guidance with respect to this matter in March 1997. The General Counsel held that questions regarding whether the amendments to the rating schedule for mental disorders were more beneficial to claimants than the previously existing provisions would be resolved in individual cases. See VAOPGCPREC 11-97 (Mar. 25, 1997). Prior to November 1996, the schedular criteria for 70 and 100 percent ratings for psychoneurotic disorders were as follows: 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 percent] 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 maintain or retain employment. [100 percent] 38 C.F.R. § 4.132, Diagnostic Codes 9400-9411 (1996). As amended, all mental disorders, whether diagnosed as schizophrenia, PTSD or a combination of both disorders, are rated under the same criteria, the "General Rating Formula for Mental Disorders," Diagnostic Code 9440. 38 C.F.R. § 4.130 (as amended by 61 Fed. Reg. 52695-52702). As amended, the regulation reads as follows for the 70 and 100 percent ratings: 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 percent] 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 percent] 38 C.F.R. § 4.130, Diagnostic Code 9440 (as amended by 61 Fed. Reg. 52695-52702). In addition, other related regulations were amended in November 1996. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a) (as amended by 61 Fed. Reg. 52695-52702). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b) (as amended by 61 Fed. Reg. 52695-52702). A GAF of 50 (actually the range of scores from 41 to 50) is for "[s]erious symptoms (e.g. suicidal ideation, server obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job)." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994), cited in Richard v. Brown, 9 Vet. App. 266 (1996). Analysis After a careful review of the evidence of record, it is found that a 100 percent schedular evaluation for the service- connected PTSD is not warranted under either the old or new regulations. The objective evidence does not demonstrate the existence of 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. The recent VA examination noted that there was no thought disorder, no delusions or hallucinations. While the appellant reported that he was socially isolated, he was awake, alert, and approximately oriented and often traveled to another country where he felt less stress. Such behavior does not represent a profound retreat from mature behavior. Nor does the evidence show that he is demonstrably unable to obtain or retain employment due to his PTSD. While the evidence reflects that he has been unable to hold down a job in recent years and has not worked at all since March 1988, and includes an opinion that the veteran was unemployable in today's competitive market, the Board notes that this determination was based not only on the veteran's demonstrated psychiatric symptoms but also was deemed to be due to his medications. In the subsequent rating determination, the RO awarded a 70 percent schedular rating and a total disability rating based upon individual unemployability. In other words, the RO found that the service connected psychiatric disorder by itself did not produce manifestations meeting the criteria for a schedular 100 percent rating, but that the disability, plus the effects of the medication for the disability, effectively made the claimant unemployable. The Board concurs that this is a correct application of the rating criteria to the facts in this case, particularly in light of the medical opinion of March 1998. There is no medical opinion of record that the manifestations of the service-connected disability, standing alone, make the veteran unemployable. The evidence also does not demonstrate total occupational and social impairment due to the following symptoms: gross impairment in thought processes or communication; persistent delusions or hallucination; grossly inappropriate behavior; persistent danger to self or others; intermittent inability to perform activities of daily living, such as maintaining personal hygiene; disorientation as to time or place; or memory loss for names of close relative, occupations or own name. The most recent VA examination had revealed that the veteran was alert and oriented. His thought processes were coherent, and he had no suicidal ideations. Moreover, he was assigned a GAF score of 45, which indicates serious symptoms but not the inability to perform daily activities. Thus, the evidence also does not support a finding of entitlement to a 100 percent schedular evaluation under the new rating criteria. In conclusion, it is found that the preponderance of the evidence is against a finding of an increased evaluation for the service-connected PTSD. ORDER A rating in excess of 70 percent for PTSD is denied. Richard B. Frank Member, Board of Veterans' Appeals