Citation Nr: 0004529 Decision Date: 02/22/00 Archive Date: 02/28/00 DOCKET NO. 96-32 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating for post-traumatic stress disorder (PTSD) in excess of 50 percent, prior to August 25, 1997. 2. Entitlement to an increased rating for PTSD, currently rated as 70 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael P. Vander Meer, Counsel INTRODUCTION The veteran served on active duty from April 1967 to January 1971, and from March 1971 to August 1976. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A hearing was held before the undersigned Member of the Board at the RO in November 1997. In April 1998, the Board denied each issue stated on the title page. Thereafter, the veteran filed an appeal with the United States Court of Appeals for Veterans Claims (Court). In response to a Joint Motion for Remand ("Joint Motion") dated in October 1998, the Court vacated the April 1998 Board decision, relative to each aspect thereof, and remanded the appeal for further development, to specifically include affording the veteran an opportunity to submit additional evidence and argument, and readjudication. [citation redacted]. In April 1999, the Board remanded the claim to the RO for development consistent with the above-addressed Joint Motion. Following completion of the requested development, the RO, in a Supplemental Statement of the Case mailed to the veteran in August 1999, continued to deny each issue listed on the title page. Thereafter, the appeal was returned to the Board. Although the two issues listed on the title page will be addressed in the decision below, the Board observes that a claim for a total disability rating based on unemployability (TDIU) was asserted in the above-cited Joint Motion. Inasmuch as such claim remains unadjudicated, it will be addressed in a remand appearing at the end of the decision. FINDINGS OF FACT 1. The manifestations of the veteran's service-connected PTSD, prior to August 25, 1997, included a continuous experiencing of Vietnam-related nightmares, without ascertained memory impairment or deficiency in family relations; overall impairment attributable to PTSD, prior to August 25, 1997, was not more than considerable. 2. Current manifestations of the veteran's service-connected PTSD include a continuous experiencing of Vietnam-related nightmares, with illogical speech and panic attacks which are weekly in frequency; overall impairment attributable to PTSD is not more than severe. CONCLUSIONS OF LAW 1. The criteria for a rating for PTSD in excess of 50 percent, prior to August 25, 1997, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.7 and Part 4, Diagnostic Code 9411, as promulgated in 38 C.F.R. § 4.132 (in effect through November 6, 1996) and 38 C.F.R. § 4.130 (1999). 2. The 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. § 4.7 and Part 4, Diagnostic Code 9411, as promulgated in 38 C.F.R. § 4.132 (in effect through November 6, 1996) and 38 C.F.R. § 4.130 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that each issue listed on the title page is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that each such claim is plausible. The Board is also satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1997). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1999). Service connection is in effect for PTSD, for which the RO has assigned a 70 percent rating (with a 50 percent rating having been in effect through August 24, 1997) under Diagnostic Code 9411 of the Rating Schedule. In accordance with 38 C.F.R. §§ 4.1 and 4.2 (1999), and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the veteran's service-connected PTSD. The Board has found nothing in the historical record which would lead it to conclude that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of the remote clinical histories and findings pertaining to such disability. I. Rating for PTSD in Excess of 50 Percent, Prior to August 25, 1997 Pursuant to Diagnostic Code 9411, prior to November 7, 1996, the evaluation of the veteran's service-connected PTSD turns on the severity of his overall social and industrial impairment. A 50 percent rating is warranted where such impairment is of "considerable" severity; if such impairment is "severe", a 70 percent rating is warranted. In addition, effective November 7, 1996, VA has revised the criteria for diagnosing and evaluating psychiatric disabilities. See 61 Fed. Reg. 52, 695 (1996) and the provisions of 38 C.F.R. § 4.130. Pursuant to Diagnostic Code 9411 under the revised criteria, a 50 percent rating is warranted for 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for 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. The veteran asserts that he continues to experience Vietnam- related nightmares on a persistent basis and, in addition, that he has difficulty sleeping. He also avers that his life is characterized by significant social isolation and that, although he attends college, in fact no employer may be willing to hire him due to his PTSD. In this regard, when the veteran was examined by VA in November 1994, which examination did not include a mental status evaluation, the examiner commented that the veteran's PTSD symptoms had been recently exacerbated by his having been forced to return to the household where his children resided, owing to a necessity to care for them due to his ex-wife's incapacitation by illness. The veteran was also noted to suffer with "dyslexia thymia", which impaired his ability to express speech in a satisfactory manner. Thereafter, when seen for VA outpatient therapy in August 1995, at which time the veteran was still caring for his children, he was noted to be continuing to experience nightmares and flashbacks related to Vietnam; he was assigned a score of 50 as being representative of his Global Assessment of Functioning (GAF). When formally psychologically evaluated by VA in October 1995, the psychologist recommended that the veteran's VA vocational training be directed toward working with materials, as opposed to trades requiring predominantly verbal skills. When examined by VA in August 1996, the veteran was noted to then be a participant in VA's Chapter 31 program for training as an electrical engineer. On mental status examination, the veteran exhibited an ability to "completely" recall a short story, with only one change five minutes later; judgment was described as being "impulsive". In considering the veteran's claim for a rating for PTSD in excess of 50 percent, prior to August 25, 1997, the Board is of the opinion, in light of the reasoning advanced hereinbelow, that the 50 percent rating which remained in effect until August 25, 1997, was fully appropriate. In reaching such conclusion, the Board is constrained to point out that the veteran's PTSD was not shown to be productive of particularly significant social impairment, inasmuch as the presumably extensive social interaction occasioned by his involvement in the above-cited VA vocational training program had not apparently precluded his participation therein. Further, the veteran's PTSD would not appear to have been productive of industrial inadaptability which was any greater than that commensurate with a 50 percent rating (i.e., 'considerable'). In this regard, the Board cannot overlook the consideration that the veteran's assigned GAF, on the occasion of his presentation for VA outpatient therapy in August 1995, was 50. Inasmuch as a GAF of 55-60 is indicative (pursuant to the then applicable DSM-III-R criteria) of only "moderate" industrial impairment, see Carpenter v. Brown, 8 Vet. App. 240, 243 (1995), the Board is of the view that a GAF of 50 would clearly not have equated with more than 'considerable' industrial impairment, the latter being characteristic of pertinent disability then warranting a 50 percent rating. In view of the foregoing observations, then, the Board concludes that a rating for PTSD in excess of 50 percent, prior to August 25, 1997, at least in accordance with the provisions of Diagnostic Code 9411 in effect through November 6, 1996, was not in order. The Board is, in addition, of the opinion that entitlement to a rating for PTSD in excess of 50 percent, prior to August 25, 1997, was not warranted pursuant to the revised above- addressed criteria (for Diagnostic Code 9411) that became effective November 7, 1996. In reaching this conclusion, the Board would point out that, when examined by VA in November 1994, the veteran's speech was apparently impaired, a factor (at least to any extent it may have been illogical or obscure) pertinently characteristic of disability warranting a 70 percent rating under the above-cited revised criteria. However, strongly militating against any notion of entitlement to such higher rating, the Board would stress that the VA examiner in November 1994 specifically attributed the veteran's speech impairment to 'dyslexia thymia' (as opposed to any notion that it was traceable to his service- connected PTSD). In addition, while deficiency in areas including family relations may, if shown, be characteristic of pertinent disability warranting a 70 percent rating under the above-cited revised criteria, the veteran was (relative to the time period at issue in this aspect of the appeal) apparently free of the same, inasmuch as he had (at least since November 1994) been functioning, apparently successfully, as the principal care-giver for his children, several of whom, moreover, are apparently themselves disabled. Finally, while impairment of short-term memory, even if shown, would still have only been characteristic of disability representative of a 50 percent rating under the above-cited revised criteria, the veteran demonstrated no such discernable impairment (exhibiting 'complete[]' recall of a brief story, with only a single change five minutes later) in the course of VA examination accomplished in August 1996. Given the foregoing observations, then, the Board is readily persuaded that, under the above-cited revised criteria that became effective on November 7, 1996, a rating in excess of the 50 percent for PTSD, prior to August 25, 1997, was not in order. II. Increased Rating for PTSD, Currently Rated as 70 Percent Disabling Pursuant to Diagnostic Code 9411, prior to November 7, 1996, a rating of 100 percent is warranted for PTSD which is productive of total social and industrial impairment. In addition, pursuant to the revised criteria for rating PTSD under Diagnostic Code 9411 which became effective on November 7, 1996, a 100 percent rating is warranted for 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 personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. When examined by VA on August 25, 1997, at which time the veteran was continuing to reside with four of his children, it was noted that he had not been employed for the last ten years, having been discharged from his last position involving telephone services because he lacked a Master's degree. On mental status examination, he was oriented in all spheres, though his level of information was "somewhat limited"; he was free of specific hallucinations, and he was noted to maintain "personal hygiene and other basic activities of daily living". The veteran alluded to experiencing panic attacks about once per week in frequency. The diagnosis was PTSD, "moderate", and a GAF score of "[a]bout 33" was assigned. The examiner further noted that the veteran's speech was illogical and irrelevant at times, and added that the veteran was "unable to work". A report pertaining to VA outpatient treatment rendered the veteran in October 1997 reflects that he was then "taking a full load" of academic classes. Also of record is a November 4, 1997, statement from a VA social worker who indicated that in her opinion the veteran was rendered "unsuitable for employment" due to service-incurred "psychological and physical trauma." A clinical report pertaining to the veteran's presentation for VA outpatient treatment two days later, on November 6, 1997, reflects that he had resumed taking medication due to his having become "so irritable with his children"; the VA therapist opined that, owing to the veteran's "interpersonal difficulties, he could not, at present function appropriately in a work environment." A separate report, also dated November 6, 1997, denotes the college coursework the veteran had completed toward an architectural technology degree. A report pertaining to VA outpatient therapy rendered the veteran in September 1998 reflects that the veteran was then under increased stress owing to having to "interface with" school personnel relative to the services being provided his children. The report also reflects that the veteran had recently sustained lime burns to his feet due to standing in wet cement that he was "working in for a friend." Most recently, when the veteran was examined by VA in July 1999, he indicated that his sleep was problematic and that he would frequently seclude himself in the woods. On mental status examination, the veteran was able to recall three items and he on one occasion "appeared to be hypervigilant". The pertinent examination diagnosis was PTSD, and a GAF score "in the high 30s to low 40s" was assigned. The examiner commented that the veteran's presentation featured "a high degree of intentional component" as well as what appeared to be voluntary exaggeration. The VA examiner further indicated that although a "high degree" of the veteran's symptomatology related to his PTSD, some of his symptomatology, to include the use of profanity, was traceable to "his personality issues". In addressing the question of whether the veteran is entitled to a rating in excess of his presently assigned 70 percent evaluation for PTSD, the Board is persuaded, owing to the reasoning advanced below and at least pursuant to the above- stated provisions of Diagnostic Code 9411 which were in effect through November 6, 1996, that he is not. In this regard, as pertinent to consideration of whether a 100 percent rating in accordance with such criteria is warranted, the Board would point out that any notion of "total" service-connected PTSD-related industrial impairment, as is necessary for the assignment of a 100 percent rating pursuant to the current promulgation of such Code, is wholly untenable. In this regard, the Board observes that the opinion advanced by the VA examiner in August 1997 that the veteran was precluded from working was rendered in consideration of a nonservice-related personality disorder (i.e., "[s]schizoaffective personality") in addition to PTSD. Moreover, the VA examiner was explicit that the veteran's PTSD itself was of only 'moderate' severity (a degree of pertinent incapacitation that may in fact not even equate with a 50 percent rating in accordance with the provisions of the above-cited Code). Further, the above-quoted comment made by the VA outpatient therapist in November 1997, which was to the effect that the veteran's PTSD was productive of only temporal ("at present") industrial incapacitation, would seem to be independently plausible when assessed in conjunction with the reality that the veteran was then continuing to pursue vocational training, giving rise to a strong inference (at least in the veteran's mind) that he feels he is yet capable, at least from a clinical perspective, of being employed. In addition, the above-cited opinion rendered by the VA social worker in November 1997, while to the effect that the veteran was then unemployable, is pertinently untenable insofar as it predicates such incapacitation on service-incurred physical trauma, when in fact service connection is not in effect for any condition of such origin. The Board would also emphasize that the veteran's assigned GAF score, which was only 33 on the August 1997 VA examination, had increased sharply to an upper bound in the 'low 40s' on the occasion of his July 1999 VA examination. The Board further observes that the VA examiner in July 1999 specifically cited the veteran's 'personality issues' as being responsible for some of his symptomatology. Such consideration, significantly, serves to substantially negate any notion of awarding the veteran a higher (i.e., 100 percent) rating predicated on the concept of reasonable doubt. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In view of the foregoing reasoning, then, the Board is readily persuaded that impairment traceable to the veteran's PTSD is productive of, at most, not more than severe overall disablement. Therefore, at least under the provisions of Diagnostic Code 9411 which were in effect through November 6, 1996, the veteran's presently assigned 70 percent rating is found to be wholly appropriate and, by inference, a 100 evaluation under such criteria is not in order. The Board is, in addition, of the opinion that entitlement to a rating in excess of 70 percent for the veteran's service- connected PTSD is not warranted pursuant to the revised above-addressed criteria (for Diagnostic Code 9411) that became effective November 7, 1996. In reaching this conclusion, the Board would point out that even though the veteran's speech was noted to be illogical as well as irrelevant on the August 1997 VA examination, the same is merely characteristic of disability warranting a 70 percent rating (the veteran's current evaluation) under the above- cited revised criteria. In addition, while the veteran indicated when examined by VA in August 1997 that he experienced panic attacks of weekly frequency, the Board is constrained to point out that panic attacks which are "near- continuous" in frequency (i.e., apparently somewhat more frequent in recurrence than those experienced by the veteran) are merely commensurate with a 70 percent rating under the revised criteria. Further, while an occasional inability to perform activities incident to daily living, to specifically include maintaining one's personal hygiene, would, if shown, be truly indicative of pertinent disablement warranting a 100 percent rating under the revised criteria set forth with particularity above, the Board cannot overlook the consideration that, when examined by VA in August 1997, the veteran was explicitly noted by the examiner to maintain 'personal hygiene and other basic activities of daily living'. Finally, while the Board is cognizant that the veteran indicated on the occasion of his July 1999 VA examination that his sleep was problematic, even the presence of impaired sleep of chronic derivation (which is in any event not shown) would still be independently representative of pertinent disability warranting only a 30 percent rating. See 61 Fed. Reg. 52, 695 (1996). Given the foregoing considerations, then, and in the apparent absence of any pertinent manifestation independently characteristic of disability warranting a 100 percent rating under the above- cited revised criteria that became effective on November 7, 1996, the Board is readily persuaded that, in accordance with such criteria, a rating in excess of the veteran's presently assigned 70 percent evaluation for PTSD is not warranted. 38 C.F.R. § 4.130. Finally, in each aspect of the decision set forth above (comprising the Board's separate dispositions bearing on either issue listed on the title page), the Board has also given consideration to the provisions of 38 C.F.R. § 4.7, which provide that, where there is a question as to which of two evaluations should be assigned, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. However, the record does not show, with respect to either temporal aspect of the decision set forth above, that the actual manifestations of the veteran's service-connected PTSD more closely approximate(d) those required for the higher rating applicable to either separate aspect of the appeal. 38 C.F.R. § 4.7. ORDER A rating for PTSD in excess of 50 percent, prior to August 25, 1997, is denied. An increased rating for PTSD, rated as 70 percent disabling from August 25, 1997, is denied. REMAND As was noted above, a claim for a TDIU, which to date remains unadjudicated by the RO, was asserted in the above-cited October 1998 Joint Motion. Further development to facilitate the adjudication of such claim is, therefore, specified below. Accordingly, the case is REMANDED for the following: 1. After undertaking any indicated preliminary development, the RO should adjudicate the above-cited recently raised claim for a TDIU. 2. If the veteran's claim for a TDIU is denied and in the event he conveys disagreement pertaining to such denial or any other denied claim(s), both he and his representative should be provided with a related Statement of the Case (SOC). The veteran should be provided appropriate notice of the requirements to perfect an appeal with respect to all issues addressed in the SOC. Thereafter, if otherwise appropriate, the case should be returned to the Board for further appellate consideration. In taking this action, the Board implies no conclusions, either legal or factual, as to any ultimate outcome warranted. No action is required of the veteran unless he is otherwise notified. F. JUDGE FLOWERS Member, Board of Veterans' Appeals