Citation Nr: 0003728 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 96-45 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a compensable evaluation for post-traumatic stress disorder, prior to March 10, 1986. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The veteran served on active duty from June 1966 to April 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The veteran's claim was remanded by the Board for further development in September 1998. The development has been accomplished to the extent possible and the veteran's claim is ready for appellate consideration by the Board. 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 medical evidence does not show that the veteran experienced emotional tension or anxiety resulting in at least mild social and industrial impairment due to post- traumatic stress disorder prior to March 10, 1986. CONCLUSION OF LAW The criteria for a compensable rating for post traumatic stress disorder prior to March 10, 1986 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the veteran has presented a claim which is plausible. The Board is satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's service-connected post traumatic stress disorder dated prior to the effective date of the grant of service connection for PTSD, of April 27, 1971. The Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue dated prior to April 27, 1971, except as outlined below. This appeal stems from a rating decision in August 1995 which assigned an earlier effective date for a grant of service connection, and a noncompensable rating, for post-traumatic stress disorder effective from April 27, 1991, with a 30 percent evaluation thereafter assigned from March 10, 1986. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this case, the veteran was assigned a 30 percent rating for post- traumatic stress disorder effective from March 10, 1986. The veteran maintains that he met the criteria for a compensable rating for post-traumatic stress disorder prior to March 10, 1986. The veteran asserts that he received VA counseling treatment for post-traumatic stress disorder in the late 1970's. Service medical records show treatment for anxiety on a number of occasions between November 1968 to February 1970. On discharge examination in March 1971 the veteran indicated in a Report of Medical History that he had experienced frequent trouble sleeping, depression or excessive worry, and nervous trouble during service. The examiner noted that there were no residuals of the veteran's reported problems. On initial VA psychiatric examination subsequent to service, in September 1971, the veteran was neat, quiet and fairly cooperative. Stream of speech was somewhat decreased in rate but relevant and coherent. Affect was neither increased nor decreased. Memory for recent and remote events was fair. The veteran was fully oriented and denied ideas of reference, voices or visions. The veteran reported that he might feel depressed at times. He denied any suicidal or homicidal ideas or attempts. He denied crying spells, fears, feelings of insecurity, and guilt feelings. He had been biting his fingernails since childhood. Judgment was good. The veteran had some insight into his condition. The examiner opined he did not find sufficient evidence to warrant the diagnosis of a definite clinical entity at any of the sub-groups under the general heading of "neurosis." The diagnosis was adjustment reaction of adult life, a sub-group under "transient situation with disturbances." Reports of February 1973 and April 1976 Reserves examinations revealed no complaints or findings related to a psychiatric disability. July and November 1984 VA outpatient medical records indicate that he veteran was seeking help for alcohol abuse and drug addiction. The reported diagnoses were ethanol abuse, alcoholism and drug addiction. The veteran received alcohol rehabilitation treatment at the Houston, Texas VA Medical Center in November and December 1984. The veteran denied seizure disorder or hallucinations. The veteran's general appearance and mental status revealed that the veteran was in no acute distress. He was fully oriented and coherent in speech. His recent and remote memory was within normal limits. The veteran's judgment was appropriate. The veteran was noted to have been detoxified prior to coming into the ward while being in the county jail for violation of his probation due to alcohol. The veteran continued in the program for rehabilitation and planned to have some assistance in job placement and housing when he was discharged. The veteran showed no suicidal or homicidal ideation upon leaving the ward and was looking forward to working with the rehabilitation people. An October 1985 VA outpatient treatment record reveals that the veteran wanted to turn himself in for a detoxification program. The veteran was unemployed and homeless. On initial evaluation by the VA department of psychiatry, chemical dependency program, the diagnosis was substance use disorder, and continuous alcohol dependence. The veteran filled out a questionnaire for a VA Vet Center in March 1986. The veteran reported difficulties with personal relationships and employment/vocational adjustment. He also indicated that he had symptoms of post-traumatic stress disorder such as survivor guilt, hyperalertness, sleep disturbance, isolation from others, and emotional/attitudinal hostility. The remainder of the Vet Center records are dated subsequent to July 1987 and are not relevant to the veteran's claim for a compensable rating for post-traumatic stress disorder prior to March 10, 1986. VA records dated from March 10, 1986 reveal complaints related to post-traumatic stress disorder. A VA psychiatrist reviewed the veteran's claims file in October 1997. The VA psychiatrist was requested to determine if the veteran had had a neurosis when examined by VA in September 1971. The VA psychiatrist was also asked to assess, if possible, the severity of the veteran's mental disorder for the period of April 27, 1971 to March 9, 1986. The VA psychiatrist reviewed the veteran's medical history, as outlined above, and concluded that symptoms consistent with post-traumatic stress disorder had been present since March 1986. Based on the psychiatrist's clinical experience in post-traumatic stress disorder literature, the psychiatrist strongly suspected that the veteran was experiencing post-traumatic stress disorder symptoms to some extent prior to March 1986. However, he could not with any degree of certainty push the date of diagnosis further back than that based upon review of the veteran's records alone for several reasons. In this regard, it was noted that the veteran described himself as being somewhat shy, nervous and withdrawn with temper control problems and increased startle even before his time in the service. Second, there was no mention in his discharge examination or follow up examinations, including his September 1971 VA examination, of more clearly diagnostic problems such as flashbacks or nightmares. The examinations while in the Reserves in 1973 and 1976 reported very little psychiatric symptomatology. The examiner opined that the first clear documentation of flashbacks and nightmares was in the records of March 1986. The examiner noted that the veteran's occupational impairment at the initial review in September 1971 was minimal, and that an interpretation of his functional impairment subsequently had been complicated by the veteran's ongoing substance abuse issues, which according to the records, continued until approximately 1990. Therefore, based on VA examination results reported for September 1971 the VA psychiatrist did not believe that the veteran met the criteria for post- traumatic stress disorder at that time. The examiner commented that, that may in part, be due to lack of appropriate understanding of post-traumatic stress disorder at that period, but based on review of the records alone, the VA psychiatrist could not retrospectively correct that. He believed that the first clear diagnostic impression of post- traumatic stress disorder was with examination in March of 1986. The Board notes that the regulations with respect to the mental disorders were amended effective November 7, 1996. Because the revised regulations in this case do not allow for their retroactive application prior to November 7, 1996, the new provisions may not be applied prior to that date. See Rhodan v. West, 12 Vet. App. 55 (1998). In other words, the veteran's claim for a compensable rating for post-traumatic stress disorder prior to March 10, 1986 must be reviewed only in light of the old regulations. A noncompensable evaluation, under the rating criteria in effect prior to March 10, 1986, contemplates neurotic symptoms which may somewhat adversely affect relationships with others but which do not cause impairment of working ability. A 10 percent under the former criteria contemplates emotional tension or other evidence of anxiety productive of mild social and industrial impairment. To obtain the next higher rating of 30 percent under the former criteria, definite impairment in the ability to establish or maintain effective or favorable relationships with people would have to be shown. By reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in definite industrial impairment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). The term "definite" in 38 C.F.R. § 4.132 means distinct, unambiguous and moderately large in degree. VAOPGPREC 9-93 (O.G.C. Prec. 9- 93). In this case, the preponderance of the medical evidence of record does not show that the veteran met the criteria for a compensable rating for post-traumatic stress disorder prior to March 10, 1986. The September 1971 VA examination indicated that the veteran had an adjustment disorder, not an anxiety disorder. Reserve examinations in February 1973 and April 1976 did not show the veteran to have any psychiatric disability. VA records in 1983 and 1984 noted that the veteran received treatment for alcohol/substance abuse and did not note any symptoms attributable to post-traumatic stress disorder. Finally, the Board notes that the October 1997 VA psychiatric examiner, after a thorough review of the veteran's record, did not find that the veteran met the criteria for post-traumatic stress disorder prior to March 10, 1986. The VA psychiatrist noted that none of the records prior to March 10, 1986 indicated symptoms such as nightmares or flashbacks which would be diagnostic of post-traumatic stress disorder. Consequently, the Board finds that the preponderance of the evidence indicates that the veteran's symptoms of post-traumatic stress disorder prior to March 10, 1986, if any, were not shown to result in emotional tension or other evidence of anxiety productive of mild social and industrial impairment. Accordingly, the veteran did not meet the criteria for a compensable rating for post-traumatic stress disorder prior to March 10, 1986. ORDER Entitlement to a compensable rating for post-traumatic stress disorder prior to March 10, 1986 is denied. U. R. POWELL Member, Board of Veterans' Appeals