Citation Nr: 0005536 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 95-15 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an increased rating for posttraumatic stress disorder, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Todd R. Vollmers, Associate Counsel INTRODUCTION The veteran had active service from August 1966 to April 1969, and from June 1969 to October 1972. This case came before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) decision in March 1994 that changed the veteran's service-connected psychoneurotic disorder from anxiety reaction to posttraumatic stress disorder, and continued the 10 percent evaluation for the disorder. A subsequent decision by the RO in May 1999 increased the rating for the veteran's posttraumatic stress disorder to 30 percent. This case was previously Remanded in March 1997 and January 1998. FINDING OF FACT The veteran is unable to obtain or retain employment due to symptoms of his service-connected posttraumatic stress disorder. CONCLUSION OF LAW The schedular requirements for a disability rating of 100 percent for service connected posttraumatic stress disorder have been satisfied. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, and Part 4, Code 9411 (criteria in effect prior to November 7, 1996). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The veteran's service medical records show that he was treated for tension headaches causing insomnia between August 1969 and January 1970. Records also show that the veteran was hospitalized in August 1972 at a VA facility while still on active duty for problems related to excessive drinking. The report of the veteran's separation examination in September 1972 noted that the veteran had been hospitalized for aggressive behavior and placed on medication. A VA examination in November 1972 noted that the veteran reported being neurotic. A VA examination in September 1973 listed diagnoses of chronic, moderate anxiety reaction and episodic excessive drinking. A rating decision in November 1973 granted service connection for anxiety reaction. VA records show that the veteran was hospitalized for alcohol withdrawal and chronic alcoholism from September 1974 to November 1974. VA records indicate that the veteran received in-patient treatment for alcoholism and depression between May and July 1976. The diagnosis given was of depressive neurosis, by history, and the veteran was found to be employable. A VA examination report dated in July 1976 noted a diagnosis of psychoneurosis and chronic moderate anxiety reaction. The examiner stated that no limitations in the veteran's social and industrial adaptability were found. Records of VA hospitalization in December 1976 noted a diagnosis of personality disorder, explosive type. A VA examination in January 1979 noted a diagnosis of mild neurosis and anxiety neurosis, and a personality disorder described as a passive aggressive personality, aggressive type. The examiner stated that the veteran was not showing any social or industrial inadaptability at the time. A VA examination report dated in October 1980 shows a diagnosis of anxiety reaction, assessed as moderately severe. A January 1985 letter from the mental health satellite unit at Auburn Correctional Facility stated that the veteran had been diagnosed with chronic posttraumatic stress disorder, and had been treated in that facility since September 1984. The veteran filed a claim for posttraumatic stress disorder in July 1993. A report of VA hospitalization shows that the veteran received in-patient treatment for chronic posttraumatic stress disorder in July 1993. The veteran was not having hallucinations or delusions, and denied suicidal or homicidal ideation. The veteran had no impairment of judgment, and there were no concrete thoughts. The veteran showed some insight into his problems. With regard to employability, the examiner stated that the veteran could resume pre-hospital activities. A global assessment of functioning (GAF) score of 38 was noted, with a score of 81 being reported as the highest GAF in the past year. VA records show that the veteran was hospitalized from August to September 1993 for chronic posttraumatic stress disorder. The veteran was noted to be cooperative and had insight, and his outlook was not impaired. The examiner stated that it was unlikely that the veteran could be employed due to his posttraumatic stress disorder symptoms and history of seizures. A GAF score of 41 in the past, and 38 at the time of discharge was noted. A VA examination in September 1993 found the veteran to be well groomed, well dressed, cooperative, and pleasant. The veteran was described as angry at times, but pleasant and cooperative most of the time. The veteran was coherent and goal directed, without any hallucinations or delusions. The veteran was preoccupied with not being able to find a job despite having two Master's degrees. He was oriented to time, person, and place, and had normal cognitive function. Insight and judgment were described as good. The assessment given was of posttraumatic stress disorder, and the examiner stated his opinion that the veteran needed outpatient counseling with medication. In a letter received in November 1993, the veteran's mother stated that he had problems readjusting to civilian life after returning from his third tour of duty in Vietnam. The letter stated that for years after his return from Vietnam the veteran was isolated and had nightmares and flashbacks, using alcohol to deal with the problems stemming from his combat service. In a letter received in November 1993, the veteran described several incidents where he engaged in combat with the enemy while in Vietnam. The veteran stated that he had recollections of these events during the same time of year in which they occurred. According to the veteran, memories of the events caused problems concentrating, as well as feelings of hyperalertness, panic, fear, guilt, restlessness, depression, irritability, and anger. Nightmares, flashbacks, disturbed sleep, and trouble relating to people were other symptoms cited by the veteran as connected to his service in Vietnam. The veteran stated that he was unable to function in social settings or to work to full capacity due to his posttraumatic stress disorder. A rating decision in March 1994 changed the veteran's service-connected psychoneurotic disorder from anxiety reaction to posttraumatic stress disorder, and continued the 10 percent evaluation for the disorder. VA records show that the veteran was hospitalized for alcohol dependence and posttraumatic stress disorder treatment from April through May 1994. A mental status examination found the veteran to be alert, verbal, and cooperative. The veteran was oriented to all three spheres, and his speech was spontaneous, relevant, and coherent, and affect was appropriate. The veteran's mood at the time of the interview was described as angry, uptight, stressed out, and depressed, and he denied psychotic symptoms. No preoccupations or obsessions were detected, and the veteran was noted to have had suicidal ideation at the beginning of the hospitalization. Concentration was not impaired, and immediate, recent, and remote memory were not impaired. Abstractability was noted to be intact, with judgment assessed as fair and insight as questionable. It was stated that the veteran could return to pre-hospital employment status, and the GAF was given as 50, with a score of 60 noted as the highest GAF in the preceding year. A form dated in January 1996 stated that the veteran had been working for one month as a construction/laborer. A letter dated in January 1996 and signed by Rori Murrell, C.S.W., A.C.S.W., stated that the veteran had been participating in a therapy program since December 1995. The letter stated that weekly sessions would be held on Saturdays due to the veteran's employment. A letter dated in July 1996 and signed by someone on behalf of Rori Murrell stated that the veteran had been participating in weekly counseling sessions. The letter also noted that the veteran had a strong work ethic and "aggressively pursued and obtained consistent employment throughout our affiliation." An undated appellate brief, submitted on behalf of the veteran in an unrelated matter, stated that immediately prior to May 1997 the veteran was working full time in a manufacturing job, and part time as a weekend residence advisor with a religious organization. It was also noted that the veteran was taking college courses and attending mental health counseling. An undated, unsigned letter from James S. Robinson, R.N., received in December 1997, noted that the veteran was alert and oriented in all three spheres, and cooperative to the interview. Affect was slightly flat, and the veteran denied any homicidal or suicidal rumination. The author stated that the veteran's adjustment post service showed vocational, social, and legal maladaptation as well as problems in establishing meaningful relationships. Multiple admissions for problems associated with anxiety, tension, seizures, and alcohol abuse were also noted. Recurring nightmares, intrusive thinking, and long term sleep disturbance were cited as problems, as well as social isolation and feelings of anger and guilt. The assessment given was of posttraumatic stress disorder with depressed mood, personality disorder, mixed, and episodic alcohol use in remission. Treatment notes dated between June 1997 and June 1998 show that the veteran was treated for posttraumatic stress disorder. The symptoms cited by the veteran in conjunction with this treatment included anxiety, nightmares, hypervigilance, guilt, depression, flattened affect, intrusive memories, and sleep disturbance. The veteran's startle reflex was also noted to be more prominent in one session in June 1998. A letter from the veteran's wife dated in November 1998 described several symptoms she related to the veteran's posttraumatic stress disorder, stating that she had been held hostage in the basement of their house, forced to "walk point" down the street, and to call for medical attention when the veteran crawled under the furniture to avoid being attacked by the enemy. The veteran's wife also stated that that veteran had had alcohol relapses which caused employment problems. A VA examination in February 1999 noted that the veteran was preoccupied with the military and Vietnam, leaving him little time to relax. The veteran was observed to be neatly and cleanly dressed, and his hygiene appeared good. The veteran was cooperative and non-evasive in manner, and was noted to be very agitated and distracted throughout the interview. There was no evidence of obsessions, compulsions, phobias, or delusions. The veteran admitted periodically hearing the voice of a dead friend from Vietnam, and became emotional speaking of this. This was described as an occurrence that happened a couple of times a year. The veteran had disturbed sleep, and was noted to have nightmares three to five nights a week involving weapons, darkness, and going out on patrols. The veteran had intrusive thoughts daily, with panic attacks and flashbacks. He also avoided war movies, crowds, and weapons. He preferred being alone and had little trust in anyone. The veteran's affect was agitated, and his mood depressed. He was oriented in all spheres. His memory and concentration were very poor, and thinking was concrete. The veteran's insight and judgment were described as poor. The assessment noted by the examiner in the February 1999 examination was of severe social and industrial impairment due to posttraumatic stress disorder, with secondary conditions present. The examiner stated that the veteran's symptoms of anxiety, distrust, anger, confusion, inability to focus, and depression seriously impaired his social and occupational functioning. The following diagnoses were given: 1) posttraumatic stress disorder, chronic, severe; 2) panic disorder without agoraphobia, secondary to posttraumatic stress disorder; 3) dysthymic disorder, secondary to posttraumatic stress disorder; and 4) alcohol dependence, in a controlled environment. The GAF score given was 45. Analysis In general, an allegation of increased disability is sufficient to establish a well-grounded claim when the veteran is seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board finds that the veteran's claim concerned in this appeal is well grounded. In addition, there is no indication that there are additional, unsecured records that would be helpful in this case. Therefore, the Board has no further duty to assist the veteran in developing his claim. 38 U.S.C.A. § 5107. Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the rating schedule. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). In evaluating the severity of a particular disability, it is essential to consider its history. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In cases where regulations concerning entitlement to a higher rating are changed during the course of a pending claim, the veteran is entitled to a decision on his claim under the criteria which are most favorable to him. Karnas v. Derwinski, 1 Vet. App. 308 (1991). The Board notes that the veteran's claim relating to his anxiety reaction, later characterized as posttraumatic stress disorder, was filed prior to November 7, 1996, when the rating criteria for mental disorders were revised. Therefore, under Karnas v. Derwinski, the veteran is entitled to consideration under the criteria in effect both before, and after November 7, 1996, and a decision which reflects application of the criteria most favorable to him. Rating criteria in effect prior to November 7, 1996 Under the general rating formula for psychoneurotic disorders in effect prior to November 7, 1996, the following criteria are applicable: a 100 percent evaluation requires either that (1) the attitudes of all contacts except the most intimate be so adversely affected as to result in virtual isolation in the community, or (2) that there be 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, or (3) that the veteran be demonstrably unable to obtain or retain employment. A 70 percent evaluation is appropriate when the ability to establish and maintain effective or favorable relationships with people is severely impaired, and there are psychoneurotic symptoms of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 50 percent disability evaluation is for assignment where the ability to establish or maintain effective or favorable relationships with people is considerably impaired and, by reason of psychoneurotic symptoms, the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. Where there is definite impairment in the ability to establish or maintain effective and wholesome relationships with people and the psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment, a 30 percent disability evaluation will be assigned. 38 C.F.R. Part 4, Code 9411 (rating criteria in effect prior to November 7, 1996). Rating criteria in effect after November 7, 1996 When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. 38 C.F.R. § 4.126 (1999). Under the general rating formula for mental disorders in effect beginning November 7, 1996, the following criteria are applicable. 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 minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, a 100 percent rating is appropriate. When there is 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, a 70 percent evaluation is warranted. 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; difficulty in establishing and maintaining effective work and social relationships, warrants a 50 percent rating. With occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events), a 30 percent evaluation is indicated. 38 C.F.R. Part 4, Code 9411 (rating criteria in effect beginning November 7, 1996). Analysis under the criteria in effect prior to and beginning November 7, 1996 Assessing the veteran's service-connected posttraumatic stress disorder under the old and new criteria for rating mental disorders, the Board finds that the provisions in effect prior to November 7, 1996 reflect application of the criteria most favorable to him. The old criteria state that a rating of 100 percent is in order if the veteran is demonstrably unable to obtain or retain employment. Since the criteria in effect beginning November 7, 1996 do not contain this provision, the Board will apply the criteria in effect prior to November 7, 1996 as being most beneficial to the veteran. The evidence of record shows that the veteran has had long- standing problems in obtaining and retaining employment due to his posttraumatic stress disorder. VA records indicate that the veteran was hospitalized for symptoms related to posttraumatic stress disorder in July 1993, and again from August to September 1993. A notation in the records associated with the August to September 1993 hospitalization stated that it was unlikely that the veteran could be employed due to posttraumatic stress disorder symptoms and a history of seizures, and a GAF score of 38 was noted. The most recent evidence concerning the severity of the veteran's posttraumatic stress disorder, contained in the report of a February 1999 VA examination, also demonstrates that the veteran is unable to obtain or retain employment. The February 1999 VA examination report noted that the veteran had symptoms such as preoccupation with Vietnam, disturbed sleep, frequent nightmares, panic attacks, and flashbacks. The examiner further stated that the veteran was very agitated and distracted, had intrusive thoughts on a daily basis, and periodically heard the voice of a dead friend from Vietnam. The veteran avoided war movies, crowds, weapons, and preferred being alone. His affect was agitated and mood depressed. His insight and judgment were described as poor, and memory and concentration as very poor. The examiner stated that the veteran had severe social and industrial impairment due to his posttraumatic stress disorder, and a GAF score of 45 was given. Under the applicable diagnostic criteria, a GAF score of 45 is associated with serious impairment in social, occupational, or school functioning, including the inability to keep a job. See American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, 1994. Affording to the veteran the benefit of the doubt, the evidence shows that he is unable to obtain or retain employment, and a 100 percent rating for posttraumatic stress disorder is therefore warranted under the criteria in effect prior to November 7, 1996. The Board notes that some of the evidence of record indicates that the veteran was able to work for a period of time. Records of private treatment dated in January and July 1996, as well as an appellate brief written on behalf of the veteran, all indicate that he has periodically engaged in full time employment. However, considering that these documents are vague as to the dates and circumstances of the jobs held by the veteran, they do not demonstrate that the veteran was able to obtain and retain substantially gainful employment for any substantial period of time such as would preclude a 100 percent rating under the old criteria. To the contrary, the medical evidence of record shows that the veteran has undergone treatment for symptoms of posttraumatic stress disorder over the past several years, and that these symptoms demonstrate his ongoing inability to obtain or retain employment. The examiners over the last several years have been fairly consistent in their opinions concerning the veteran's inability to engage in substantially gainful employment as a result of the psychiatric disability. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Board finds that the evidence in favor of a 100 percent disability evaluation is at least in equipoise. Therefore, an increased rating for posttraumatic stress disorder is granted. ORDER Entitlement to a rating of 100 percent for posttraumatic stress disorder is granted, subject to regulations governing awards of monetary benefits. C. W. Symanski Member, Board of Veterans' Appeals