BVA9503156 DOCKET NO. 91-19 707 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for post-traumatic stress disorder prior to June 16, 1992. 2. Entitlement to a rating in excess of 50 percent for post- traumatic stress disorder on and subsequent to June 16, 1992. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Associate Counsel INTRODUCTION The veteran served from October 1966 to September 1968. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse rating action by the Albuquerque, New Mexico, Regional Office (hereinafter RO). Subsequent to development accomplished after the March 1994 Board remand, the RO increased the disability rating for the veteran's post-traumatic stress disorder to 50 percent disabling, effective from June 16, 1992. In essence, this action by the RO was also a denial of a claim for a higher rating than 10 percent for the period before June 16, 1992, and this fact is reflected by the manner in which the issues are listed on the title page. See AB v. Brown, 6 Vet.App. 35 (1993). CONTENTIONS OF APPELLANT ON APPEAL It is essentially contended that increased ratings for both periods of time listed on the title page are warranted for the veteran's post-traumatic stress disorder. The veteran's representative has contended that the level of disability reflected by the Global Assessment of Functioning Scale score shown on the most recent Department of Veterans Affairs (VA) psychiatric examination warrants entitlement to a 70 percent rating for the veteran's post-traumatic stress 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 preponderance of the evidence is against both the assignment of a disability rating for post-traumatic stress disorder in excess of 10 percent before June 16, 1992, and a disability rating in excess of 50 percent for a period of time on and subsequent to June 16, 1992. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. No more than mild social and industrial impairment caused by post-traumatic stress disorder for the period before June 16, 1992, is shown. 3. Severe impairment in the ability of the veteran to establish and maintain social relationships or obtain or retain employment caused by post-traumatic stress disorder for a period of time on and subsequent to June 16, 1992, is not shown. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for post-traumatic stress disorder for a period of time before June 16, 1992, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.129, 4.130, 4.132 Diagnostic Code (DC) 9411 (1994). 2. The criteria for a disability rating in excess of 50 percent for post-traumatic stress disorder for a period of time on and subsequent to June 16, 1992, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.129, 4.130, 4.132, DC 9411 (1994) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran has presented sufficient evidence to conclude that his claims are "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has been fulfilled as there is enough evidence of record to make an equitable decision in the veteran's appeal. In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: The veteran prevails in either event. However, if the weight of the evidence is against the veteran's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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 required for that rating. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). I. Entitlement to a disability rating greater than 10 percent before June 16, 1992. Post-traumatic stress disorder resulting in emotional tension or other evidence of anxiety productive of mild social and industrial impairment warrants a 10 percent disability rating. Psychoneurotic symptoms caused by post-traumatic stress disorder resulting in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment and definite impairment in the ability to establish or maintain effective and wholesome relationships warrants a 30 percent disability rating. 38 C.F.R. § 4.132, DC 9411. In Hood v. Brown, 4 Vet.App. 301 (1993), The United States Court of Veterans Appeals stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other terms were "quantitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate "reasons or bases" for its decision. 38 U.S.C.A. § 7104(d)(1). In a precedent opinion dated November 9, 1993, the VA General Counsel concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." VA O.G.C. Prec. Op. No. 9- 93 (Nov. 9, 1993). The board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c). With these considerations in mind, the Board will address the merits of the veteran's claim. The following is a summary of the relevant clinical evidence of record submitted after the veteran's claim for service connection for post-traumatic stress disorder was received at the RO, March 22, 1990, and the date the RO determined entitlement to a 50 percent rating for post-traumatic stress disorder was warranted, July 16, 1992. An April 1990 VA psychiatric outpatient treatment record showed the veteran to be emotional, tearful and fearful of going "insane." He said he had been having these problems since his separation from service in Vietnam that included exposure to traumatic combat experiences. The veteran said he had never received specific treatment for post-traumatic stress disorder before but that anti-depressive medication provided relief. The VA psychiatrist prescribed additional medication and recommended that the veteran be scheduled for treatment in a post-traumatic stress disorder program. A report from a VA social worker dated in April 1990 showed the veteran describing distressing memories of his experiences in Vietnam. A May 1990 outpatient treatment report indicated the veteran had been doing better since he took the additional medication prescribed in April. However, he stopped taking the medication and felt worse and when he began to take the medication again it did not provide as much relief as it had previously. The dosage of the prescribed medication was increased and it was felt that continued group and individual therapy was necessary. By June 1990, it was indicated that the veteran was doing better and had been accepted for treatment to begin in January 1991 in a post- traumatic stress disorder program. The dosage of his medication was again increased. A report from a June 1990 VA examination indicated the veteran had been suffering from post-traumatic stress disorder since he returned from Vietnam. He complained about nightmares during his sleep from which he awoke screaming and yelling and said he had memories about his experiences in Vietnam which he tried to forget. Also shown was a depressed mood that was alleviated by taking Doxepin. The mental status examination showed the veteran to be alert and oriented. His mood was depressed and he became tearful four or five times during the interview. Thinking was without delusions and suicidal ideation and cognitive functioning was described as "good." Judgment, insight, and cognitive functioning were also described as "good" and short and long term memory were adequate. The impression was post-traumatic stress disorder and rule out dysthymic disorder. It was the examiner's opinion that the symptoms of post-traumatic stress disorder were mild to moderate. No further relevant evidence is of record until a report dated in January 1991 compiled by a VA social worker referring to an appointment with her requested by the veteran. The veteran wished to continue participating in the support group and indicated he had been experiencing increasing stress associated with monitoring events from the war in the Persian Gulf. It was indicated that he was working fairly steadily, and by April 1991 the veteran was shown to have improved his ability to cope with stress. He was working and desirous of more social contact and his case was closed pending further communication from the veteran. In October 1991, the veteran reported increasing symptoms of anxiety. He indicated that he was working at three different jobs. The veteran stated that he functioned well when he was on his medication but that his anxiety increased when the medication wore off. He stated that he felt "driven" to work as much as possible because he felt guilty when he wasn't working and indicated that he was fearful of establishing intimate relations again. The evidence of record reflects continuing outpatient visits to a VA social worker through July 1992. In December 1991, the veteran indicated he was extremely busy at work and concerned about the fact that his son was coming to live with him. A social work note dated in January 1992 indicated the veteran had resolved most of his depression and had become more involved with others. In February 1992, the veteran indicated that he had "slowed down" some and expressed some increasing anxiety associated with the fact that his son would be coming to live with him that summer. The veteran's case was temporarily closed in April 1992 as he had not called to make an appointment with the social worker. A report from the VA social worker dated June 16, 1992 showed the veteran indicating that his symptoms of post- traumatic stress disorder were getting worse. The demands of his boss at one of his jobs caused the veteran so much stress that he decided he had to quit for fear of a verbal explosion. He described no problems with another job he had at that time because this job did not require much interaction with other people. After analyzing the clinical evidence summarized above, the Board is in agreement with the RO's decision that the veteran was not entitled to a rating in excess of 10 percent before June 16, 1992. Under 38 C.F.R. § 4.130, disability ratings for psychiatric disorders such as post-traumatic stress disorder are to be based on the degree to which symptoms affect social and industrial adaptability (social inadaptability is to be evaluated only as it affects industrial inadaptibility under 38 C.F.R. § 4.129). 38 C.F.R. § 4.130 also provides that two of the most important determinants of disability are time lost from gainful work and diminished work efficiency; however, emotionally sick veterans with good work records are not to be underevaluated. Therefore, because the evidence did not show that symptoms associated with post-traumatic stress disorder interfered with the ability of the veteran to work until June 16, 1992, the Board concludes the 10 percent evaluation assigned before that time was consistent with the provisions of 38 C.F.R. §§ 4.129 and 4.130. While the clinical evidence from April 1990 to June 1992 did reflect symptoms of depression and anxiety, the resultant level of disability was adequately reflected by a 10 percent disability rating. The clinical evidence from this period of time, rather than showing a decrease in initiative, flexibility and reliability so as to produce industrial impairment, actually shows the opposite, as the Board notes the veteran worked steadily during the period of time in question, at one time even indicating that he was working at three different jobs. Thus, a 30 percent rating under 38 C.F.R. § 4.132, DC 9411 is not for application. Also supporting the 10 percent rating before June 16, 1992, is the fact that clinical evidence indicates that the veteran's psychiatric problems had improved through the early months of 1992 to the point that his case was closed by his social worker in April 1992. 38 C.F.R. § 3.321(b)(1) provides that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for his service-connected disabilities, an extraschedular evaluation will be assigned. However, neither frequent hospitalization nor marked interference with employment due to the veteran's service-connected post-traumatic stress disorder before June 16, 1992, is demonstrated. Therefore, an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) for that period of time is not warranted. II. Entitlement to a disability rating greater than 50 percent for a period of time on and subsequent to June 16, 1992. Post-traumatic stress disorder productive of considerable impairment in the ability to establish or maintain effective or favorable relationships with people and causing such a reduction in the levels of reliability, flexibility and efficiency as to produce considerable industrial impairment warrants a 50 percent disability rating. Symptoms of post-traumatic stress disorder of such persistence and severity as to produce severe social and industrial impairment warrant a 70 percent disability rating. 38 C.F.R. § 4.132, DC 9411. The relevant clinical history in addition to that discussed above in the first section includes the following. The service medical records show the veteran suffering from combat fatigue in 1968 associated with his duties as a rifleman in Vietnam. On a report of Medical History competed at the time of separation from service, the veteran stated he had frequent problems related to sleeplessness, nervousness and depression. It was indicated that these problems were not serious at that time. No further relevant evidence is of record until 1986, at which time two private psychologists diagnosed the veteran as having a mixed personality disorder. Subsequent to the June 16, 1992, visit to the social worker previously discussed, evidence of record shows four more visits to the social worker in June and July 1992. These records reflect the veteran experiencing continuing difficulty with disturbing recollections of his service in Vietnam that ultimately prevented him from being able to relax. He also described being overwhelmed by the fact that he had to take care of his elderly mother. By July 1992, it was indicated that he was making "good progress." The only other relevant clinical evidence not discussed in the previous section is contained in the reports from an April 1994 VA examination. It was indicated that the veteran visited a psychiatrist on a monthly basis and was continuing his visits to a social worker. The medication for symptoms of depression had been switched from 300 mg of Doxepin per day to 100 mg of Prozac per day. The veteran reported at that time that he was working for approximately 10 to 20 hours per week at a mortuary company. He also reported that he did numerous odd jobs when he needed extra money. It was indicated that the veteran never attended the scheduled post-traumatic stress disorder program, with the veteran stating that he needed to take care of his ten year old son instead. Subjective complaints from the veteran at the time of the examination included difficulty with concentration, social isolation, anger, fear of losing control, depression, hypervigilance, fatigue, helplessness and hopelessness. He stated he heard his name being called to him at times. Objective findings from the examination included decreased eye contact, crying spells, normal speech tone and rate, and ease of verbalization. The veteran denied having any current auditory or visual hallucinations or homicidal ideation. He had thoughts about suicide but said he would not act on them because he had to take care of his son. His thought process was significant for blocking, as the veteran would stop in mid-sentence and lose his train of thought. He did not appear to be internally stimulated and it was noted that his thinking was concrete and rigid. The diagnoses reached after the examination on Axis I were post- traumatic stress disorder and dysthymia/depression neurosis. The diagnosis on Axis II (developmental/personality disorders) was deferred. The Global Assessment of Functioning scores on Axis V were assessed as 35, which corresponds with major to serious impairment in functioning. The psychiatrist who examined the veteran found the depression and post-traumatic stress disorder to be two separate and discrete disorders, and essentially listed intrusive thoughts about Vietnam causing outbursts of anger and irritability, emotional numbing, hypervigilance, social isolation, and a sense of a foreshortened future as being symptomatic of post-traumatic stress disorder. Poor appetite, insomnia, low energy, fatigue, low self-esteem and poor concentration were associated with the dysthymia/depressive neurosis. After reviewing the report from the most recent VA examination, in conjunction with the relevant clinical history as summarized above, the Board finds the weight of the "negative" evidence to be against assigning a disability rating in excess of 50 percent for the veteran's post-traumatic stress disorder. The evidence reflects that the veteran has been able to work at various jobs in recent years and is currently able to work at least 10 to 20 hours a week for a mortuary. He has also been able to procure other jobs to assist him in providing for his family. Given this work history and the aforementioned importance of the veteran's employment status in rating disability due to psychiatric disorders enumerated in 38 C.F.R. §§ 4.129 and 4.130 and the extent of disability already reflected by the 50 percent evaluation, the Board concludes that a 70 percent rating under 38 C.F.R. § 4.132, DC 9411 is not for application. The Board notes with respect to the Global Assessment of Functioning scores that these scores represent the overall level of psychiatric impairment, and not just that caused by post- traumatic stress disorder. Significantly, the VA psychiatrist who examined the veteran in April 1994 specifically attributed a significant amount of the veteran's symptoms to the "separate and discrete disorder" of dysthymia/depression neurosis. Thus, the degree of disability associated with the non-service connected dysthymia/depression neurosis would have to be subtracted from the overall level of psychiatric impairment reflected by the Global Assessment of Functioning scores to determine an accurate measurement of the level of disability caused solely by post-traumatic stress disorder. Therefore, the Board does not find these scores to be useful in determining the level of disability caused by the veteran's post-traumatic stress disorder. The Board has considered the application of the aforementioned provisions of 38 C.F.R. § 3.321(b)(1). However, as neither frequent hospitalization nor marked interference with employment due to the veteran's service-connected post-traumatic stress disorder is demonstrated, an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER Entitlement to a disability rating in excess of 10 percent for post-traumatic stress disorder prior to June 16, 1992, is denied. Entitlement to a rating in excess of 50 percent for post- traumatic stress disorder on and subsequent to June 16, 1992, is denied. HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 4 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.