BVA9504624 DOCKET NO. 92-08 682 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased evaluation for post-traumatic stress disorder, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and [redacted] ATTORNEY FOR THE BOARD Lois N. Petzold, Associate Counsel INTRODUCTION The veteran served on active duty from September 1968 to March 1970. This appeal arises from a May 1989 rating decision of the Los Angeles, California, Regional Office (RO), which confirmed a 30 percent evaluation in effect for schizophrenia. The case was Remanded by the Board of Veterans' Appeals (Board) in November 1993 for additional development. Subsequently, by rating action in July 1994, the RO changed the diagnosis of the veteran's schizophrenia to post-traumatic stress disorder (PTSD), and increased the rating to 50 percent. The veteran has expressed continued disagreement with the 50 percent evaluation. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that his service connected PTSD is more disabling than currently evaluated, in that he suffers from rage, sleeplessness, anxiety, and depression. He also maintains that he is physically abusive to his wife. He further asserts that his symptoms of PTSD are so severe that he is unable to secure or follow a substantially gainful occupation. 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 evidence supports the claim for a 100 percent schedular rating for PTSD under the provisions of 38 C.F.R. Part 4, Code 9411 (1994). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran is incapable of securing or following substantially gainful employment due to his service-connected PTSD. CONCLUSION OF LAW A schedular evaluation of 100 percent for service connected PTSD is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.129, 4.130, Code 9411 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). 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. Part 4. Separate diagnostic codes identify the various disabilities. The VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history, and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report, and to enable the VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet.App. at 594. In evaluating impairment resulting from psychiatric disorders, social inadaptability is to be evaluated only as it affects industrial adaptability. The principle of social and industrial inadaptability, 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. § 4.129. 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 symptomatology are the essentials... 38 C.F.R. § 4.130. The veteran's service medical records do not show treatment for or a diagnosis of a psychiatric condition.. Both his entrance and discharge examinations show him as being clinically normal psychiatrically. However, the veteran was hospitalized in September 1970, with a diagnosis of schizophrenic reaction. By rating action of March 1971, the RO granted service connection for a schizophrenic reaction, with a 10 percent evaluation assigned from September 1970. By rating action in January 1973, the RO increased the veteran's disability evaluation, assigning a 50 percent evaluation from December 1972. The veteran's disability rating was reduced to 30 percent by rating action in January 1975, effective from April 1975. At a February 1989 VA examination, the veteran reported feeling that people were following him or plotting against him. He said he had lost numerous jobs because he "blows up", or simply does not go to work. His first marriage ended because of his problem in "blowing up" at his wife. It was noted that his present common law wife reported the same problem. The veteran admitted to a drinking problem in the past, but said he had cut down to the point where he only drank on Fridays after work. He also admitted hearing voices whispering, and he could not understand what they were saying. He explained that this disturbed his thinking. He also indicated that he had trouble concentrating, and his thoughts got confused. Mental status examination revealed the veteran to be alert, oriented, cooperative, and of average intelligence. His memory was fairly intact. He was able to abstract proverbs reasonably well, but immediately became confused when asked to subtract sevens from 100, showing marked difficulty with concentration. The diagnosis was schizophrenia, chronic, paranoid type. Although the veteran was also administered the Minnesota Multiphasic Personality Inventory, the clinical psychologist noted that the results were not presented because "a standard interpretation of this data would result in a description that does not reflect the patient's current status". The veteran and [redacted] both testified at a hearing in July 1991. The veteran's representative submitted a list of 22 jobs held by the veteran over the past 20 years, the longest period of employment being about two years, the shortest being a few days. The veteran testified that he had been treated at the VA and the Vet Center for PTSD. He said he had a lot of problems at home and was abusive to his wife. He said he mashed her cheekbone and broke her kneecap, her rib cage, and her nose. After one such incident with his wife, he said he went out and got into a fight with four men. He explained that he always got into similar trouble when he was in one of his rages. At home he said he regularly put his hands through the door, broke dishes, and slammed walls. He said his first wife left him after 10 years because of this. He said he was worried his second wife would leave him, too, because she told him she was at that point. Ms. [redacted] reported that the veteran had sleepless nights, often not going to bed until four o'clock in the morning. Noises woke him up, and he also experienced sweats and anxiety during the night. When things did not go away, she said he twitched, shook, and went into a rage. She said he could not hold a job, that he lost interest and just quit. The longest she remembered him working was six months. Currently, she said he stayed at home, "looking at the four walls". He flew into a rage at the slightest problem, such as when she came home late. He told off his friends when he got mad. She said that no matter where they were, things made him mad. For instance, when driving, if someone was not moving fast enough, he tailgated. If the line at the market was not moving fast enough, he got anxious. She said he was very suspicious of her, calling her at her job all day long to see if she were there, looking at her when she returned home at night to see if she had been anywhere else. She also explained that he hit her for no reason at all, even when she was asleep. She thought he was like two different people, having an unnatural look in his eyes like he wanted to kill her when he was enraged. The veteran then testified that he last worked in December 1990. He said that he just stayed at home "locked up" every day. He explained that was why he had gained so much weight recently, he just sat at home, thinking of old times. He also said he kept cardboard in all his windows because he liked it pitch black in the house. He went on to say that he had no money, and lost his house and his apartment. Ms. [redacted] paid the rent and all the bills. He said he could not sleep and was up all night. He said he had night sweats, and yelled until his wife woke him up. He also reported hearing noises, to which he responded by going out with a flashlight and a gun, which he even did once during the day. When alone, he said he experienced flashbacks. He said he did not go out at all, except to the market. He further testified that although he hoped he could go back to work, he had not tried to find work. He knew his mind was not right now, and that he could not hold a job for more than six months, possibly a year. He said his boss from his last job occasionally came to his house, asking him to come back because they missed him and liked his work. He said he had worked in a warehouse, as a gardener, and spotting trailers for dock workers. VA outpatient treatment records dated between May and October 1991 show that the veteran was seen for a correct diagnosis of his psychotic symptoms and hallucinations. He had been referred by the Vet Center. In May the provisional diagnoses were PTSD and organic hallucinosis. The veteran said he had been unable to work since December 1990. He also reported experiencing sleep disturbances, nightmares, cold sweats, and violent fights with his wife. He complained that he heard whispering voices, and although he admitted having suicidal thoughts, he denied any at the present time. In June he was seen complaining of insomnia, flashbacks, anxiety, paranoia, violence, aggression, and hypervigilence. It was noted that his first marriage ended because of violence and his current marriage was also on the verge of a breakup because of his violence and aggression. His anger was out of control, and often based on guilt. He indicated that he drank to control his anxiety and temper but had delayed negative reactions. He reported that when violent, he lost his sense of reality. The diagnosis was PTSD, and the possibility of a personality disorder, paranoia. In August it was noted that the veteran had been violent twice since his last visit. He destroyed the house because of thoughts of infidelity. He indicated he goes crazy with thoughts of betrayal and abandonment, which trigger his aggressive behavior. The assessment was PTSD with rage. A June 1991 statement from E. Amanat, M.D. indicated that he had treated the veteran twice that month. The veteran's history of flashbacks and hypervigilance for several years was noted. The psychiatrist found the veteran to be violent, impulsive, anxious, paranoid, and agitated. The diagnoses included PTSD, paranoia, borderline personality disorder, and alcohol abuse. The diagnoses were reported to be confirmed by psychiatric evaluation. It was also noted that because the veteran had battered his wife, he needed to be contained medically. The veteran underwent another VA psychiatric examination in March 1994. He complained of anxiety, night sweats, paranoia, and nightmares. His wife said that he often screamed out during the night, but the veteran had no memory of this. He did report hearing voices at night, when he was awake. The voices said things such as "we're going to get you". He does not usually hear these voices during the day or when other people are around. He tends to keep his back to a wall when sitting, which he attributes to being constantly psychologically alert in Vietnam. He remembered friends dying and people being wounded in Vietnam, but did not want to go into detail. He said that frequently he goes outside his house with a knife and flashlight, as if he is guarding the perimeter of the house. He used to go out with a gun, but subsequently sold all of his guns because he was afraid he might use them. He admitted taking his frustrations out on his wife, and said he broke her kneecap and split her forehead. She had to have plastic surgery on her face because of his beatings. He has also pulled phones out of the wall, knocked holes in doors, and covered windows with cardboard. He indicated that when hitting his wife, he is not aware of what is going on, but later feels remorse. Recently his wife called the police and he spent a few days in jail. Since leaving service, the veteran reported having 27 jobs. He usually walked off the job or had a fight with the foreman. He said the longest job he ever held was a year, and usually they lasted 3 to 6 months. He said he drinks two pints of hard liquor between Thursday and Sunday each week. He walked off his last job, which was in a warehouse. Since then, he has isolated himself, and does not open the door, not wanting to talk to friends or family. He indicated wanting to keep totally unexposed to the outside world. When he lost his last job in 1990 he also lost his home that he had owned for 20 years, as well as his car. He explained that he had mood swings with periods of severe tension and energy, followed by periods of depression. When on an "upswing", he slept 4 to 5 hours a night, but when depressed, he slept 6 to 10 hours. He said he wanted to work but was afraid to look for work and did not know why. On mental status examination, the veteran was alert, oriented, and very cooperative, though initially somewhat guarded and defensive. His speech was clear and coherent. He reflected some depression, especially when he spoke of losing his home, and when he spoke of his children. When tears welled in his eyes at these moments, he was obviously embarrassed. He did not have hallucinations or delusions during the interview. He was able to do six numbers forward, but none backward, and had much difficulty with serial sevens. His proverbs were surprisingly concrete. His memory was intact, but he remembered only two of three objects after five minutes. The diagnostic impression was PTSD, employability unlikely at this time. During a special VA PTSD examination by a psychologist the month before, in addition to reporting much of the same information noted above, the veteran elaborated on his employment history. He explained that he had worked as a salesperson, a driver, a crane operator and a fork-lift operator. He also worked loading and unloading delivery trucks. He said he would get fed up with his work and became easily irritated. He did not like being told what to do. He eventually was fired or quit. He reported that his most recent job was working on a freight liner. He walked off this job, and they asked him to come back. He refused, saying he just gave up. Psychological diagnostic testing showed that the veteran manifested several symptoms that might be related to his Vietnam experience, including avoidance of stimuli and persistent increased arousal. However, it seemed likely that the patient over-endorsed items to present himself as distressed. The examiner felt that his profile was not typical of patients with PTSD. She felt that it may be that he had symptoms of PTSD, but because of his chronic substance use, it was difficult to assess the true nature of his symptoms. The diagnoses included alcohol dependence; personality disorder NOS with borderline and self-defeating features. Psychosocial stressors were severe, with unemployment, and the current GAF was 45. The highest GAF in the past year was also 45. In February 1994 a Social and Industrial Survey was taken from the veteran. He described flashbacks, startle responses, hyperalertness, suspicion, discomfort around Orientals, sudden rage, lose of temper, and the inability to trust anyone. As a result of his symptoms, the veteran felt unable to hold a job for any length of time, and lost his first marriage, home and car. He also had problems interpersonally with those around him. Ms. [redacted], interviewed by telephone, reported events described in her testimony at the veteran's July 1991 hearing. Mental status examination revealed the veteran to be casually dressed, well- groomed, well-nourished, alert, oriented in all spheres and cooperative. Mood was neutral. Affect was full and appropriate for verbal content. Speech had a normal tone and rate. Associations were tight. The veteran either would or could not attempt a test for abstractions or calculations. He admitted to auditory hallucinations. Thought processes were coherent and organized. Thought content revealed suicidal ruminations but no intent at that time. He admitted to ideas of reference, thought broadcasting, paranoid ideation manifested by suspicion, unfounded fear, and mistrust. Insight appeared only moderate and judgment was fair. The veteran's long history of quitting or being fired from 23 different jobs was set out in detail. The examiner felt that multiple factors were responsible for the veteran's maladaptive social and industrial adjustment. Factors considered included alcohol abuse, possible underlying characterological pathology, psychotic symptoms, but PTSD appeared to be the most predominant pathology. In the examiner's opinion, the veteran's social and industrial adjustment had been affected to a moderately-severe degree by an underlying PTSD. VA outpatient treatment records dated in November 1991 and January 1994 did not relate to a psychiatric problem. However, records dated between July and August 1991 indicate that the veteran and Ms. [redacted] were seen a number of times for counseling regarding the veteran's violent behavior towards her. By rating action of July l994, the 30 percent rating for PTSD was increased to 50 percent, effective July l991. Under the governing criteria, a 50 percent evaluation requires considerable impairment in the ability to establish or maintain effective and wholesome relationships with people and psychoneurotic symptoms resulting in such reductions in initiative, flexibility, efficiency, and reliability levels as to produce considerable industrial impairment. A 70 percent evaluation is warranted for post traumatic stress disorder when the ability to establish and maintain effective or favorable relationships with people is severely impaired, and when there are psychoneurotic symptoms of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent evaluation requires as follows: The attitudes of all contacts except the most intimate be 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. 38 C.F.R. Part 4, Code 9411. 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. In Johnson v. Brown, No. 93-89 (U.S. Vet. App. Sept. 28, l994), the Court held that the Secretary's interpretation of the requirements for a l00 percent evaluation under the codes pertaining to psychoneurotic disorders were reasonable and not in conflict with any statutory mandate, policy or purpose. The Secretary interpreted the criteria for the l00 percent rating as each being independent bases for the granting of a l00 percent rating. Thus, if it is determined that the veteran is demonstrably unable to obtain or retain employment, a l00 percent schedular evaluation under the criteria for psychoneurotic disorders is assignable. Although the veteran has been diagnosed with a personality disorder in addition to PTSD, his psychiatric symptoms are too intertwined to separate. After a careful review of the evidence of record, the undersigned finds that the veteran is unable to engage in substantially gainful employment due to his service connected psychiatric disability. The veteran has reported a rocky job history since leaving service, characterized by one short-term job after another, from which he is fired or quits due to his psychiatric disability. During a VA examination in March 1994, the veteran denied any employment for the past four years. VA diagnostic testing in February 1994 showed he had a GAF of 45. According to American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders 23 (4th ed. 1994), a score between 41 and 50 means that the veteran has serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting), or a serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school) (Note on page 22 indicates that intermediate codes should be used when appropriate). In view of the totality of the evidence, including the recent VA examinations, and Social and Industrial Survey, the undersigned finds that the veteran is unable to work due to his service connected PTSD. His functioning ability is poor as noted by the GAF score reported above. His chances of employment were evaluated as not likely. He appears to be chronically paranoid and angry, as well as physically abusive to others. His insight, judgment, and concentration were limited. There is no evidence supporting a finding that employment is feasible. In summary, the causative factor for the veteran's unemployment is his service-connected PTSD. ORDER Entitlement to a schedular rating of 100 percent for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits. __________________ I. S. SHERMAN 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. 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.