Citation Nr: 0005041 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 93-05 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial evaluation greater than 50 percent for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty from June 1967 to June 1970. This appeal arises from an October 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which granted service connection for post-traumatic stress disorder and assigned a 10 percent rating, effective June 17, 1993. In August 1997 the Board of Veterans' Appeals (Board) remanded the claim for an increased rating for post-traumatic stress disorder to the RO. The RO granted an increased rating to 50 percent for post-traumatic stress disorder in a September 1998 rating action. FINDING OF FACT The veteran's service connected post-traumatic stress disorder causes him to be unable to obtain or retain gainful employment. CONCLUSION OF LAW The criteria for a 100 percent rating for post-traumatic stress disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996); 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION 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 is satisfied that all relevant facts have been properly developed. No further assistance is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.326 (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. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from 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; 38 C.F.R. Part 4. During the pendency of this appeal VA published new regulations for rating disability due to mental disorders. Prior to November 7, 1996, VA regulations provided a 50 percent evaluation when the ability to establish effective or favorable relationships with people was considerably impaired and flexibility, efficiency, and reliability levels were so reduced by reasons of psychoneurotic symptoms as to result in considerable industrial impairment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). A 70 percent evaluation required that the ability to establish and maintain effective or favorable relationships with people was severely impaired. The psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). A 100 percent evaluation required totally incapacitating 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. A 100 percent evaluation was warranted if a veteran was demonstrably unable to obtain or retain employment due to post-traumatic stress disorder. 38 C.F.R. § 4.132, Part 4, Diagnostic Code 9411 (1996). Effective November 7, 1996, the VA Schedule of Ratings for Mental Disorders was amended and redesignated. The new criteria provided a 50 percent rating where 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 is demonstrated. 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). A 70 percent rating requires 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). A 100 percent evaluation requires 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 names. 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). Factual Background and Analysis. After reviewing the evidence the Board is convinced that the veteran is unable to work due to his service-connected post-traumatic stress disorder. On his Veteran's Application for Increased Compensation Based on Unemployability, dated in October 1998, the veteran noted that he had not worked since September 1991. He indicated that his disability affected full time employment in 1992. The veteran was evaluated by a private psychologist in May 1996. The psychologist noted that the veteran's hair and clothing appeared unkempt. He had some signs of self- neglect. There was a musty body odor. His mood was depressed and his affect constricted. Diagnosis on Axis I included post-traumatic stress disorder, dysthymia, late onset, and bereavement. A Global Assessment of Functioning (GAF) score of 40 was assigned. A VA examination in June 1996 also included a diagnosis of post-traumatic stress disorder. A GAF of 60 percent was assigned. September through December 1996 VA outpatient treatment records reveal that the veteran denied having symptoms. He disputed others who told him he had problems. It was noted that the veteran did not take pride in his appearance. The veteran's spouse reported that the veteran had become obsessed with possible tragedies occurring to his family. In May 1998 a VA psychiatric evaluation was performed. The veteran reported that it was difficult for him to go anywhere. He preferred to be alone. He had become violent and threatening. He threatened to shoot his son-in-law for "no good reason." He had problems sleeping. He did a nightly security check around his property. He was suspicious and vigilant. He had recurrent nightmares. He had problems with flashbacks. Certain smells caused him to have intrusive thoughts. During the evaluation the veteran was tense, nervous and was easily agitated and irritable. He seemed to have a hard time processing his thoughts. He admitted to feeling paranoid. His affect was labile. His cognitive functions were diminished. His short term memory, concentration and attention span were limited. He was easily distracted. A GAF score of 45 was assigned. In her remarks the VA examiner stated that in her opinion the veteran was not able to obtain or retain any gainful employment due to service-connected PTSD. Based on the assessment of the private psychologist in May 1996 and the VA examiner in May 1998 the Board has concluded that the evidence demonstrates that the veteran's post- traumatic stress disorder has caused him to be unable to work. The criteria for evaluating disability due to post- traumatic stress disorder, prior to November 7, 1996 and effective November 1996, both contemplate a 100 percent rating when post-traumatic stress disorder causes inability to work. The symptoms demonstrated by the veteran warrant the assignment of a 100 percent rating for post-traumatic stress disorder. The veteran was granted service connected for post-traumatic stress disorder in an October 1996 rating decision. The veteran appealed the assignment of a 10 percent rating to the Board. A claim placed in appellate status by disagreement with the initial rating award and not yet ultimately resolved, as is the case with the claim herein at issue, is an original claim as opposed to a new claim for increase. Fenderson. In such cases, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. In this case, as in Fenderson, the veteran has perfected an appeal as to the assignment of the initial rating for his post-traumatic stress disorder. The Board has considered whether or not the rating of the veteran's post-traumatic stress disorder should be divided into separate periods based on differences in the levels of disability demonstrated over time. After reviewing the evidence the Board has concluded that the veteran's post- traumatic stress disorder has been essentially unchanged over that period. Outpatient records document the veteran's need for treatment for his psychiatric condition. The symptoms reflected in his most recent examination are very similar to those noted in earlier records and occur with the same frequency and severity as those noted earlier. For that reason, the Board finds that a 100 percent rating is warranted for the entire rating period. The benefit of the doubt has been resolved in the veteran's favor. 38 U.S.C.A. § 5107. ORDER A 100 percent rating for post-traumatic stress disorder is granted, subject to regulations governing the award of monetary benefits. WAYNE M. BRAEUER Member, Board of Veterans' Appeals