Citation Nr: 0002652 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 93-09 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased disability rating for the veteran's service-connected post-traumatic stress disorder (PTSD), currently rated 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD P.B. Werdal, Counsel INTRODUCTION The veteran served on active duty from November 1967 to November 1969. This matter was previously before the Board of Veterans' Appeals (Board) in March 1995, when it was remanded for additional development. At a hearing before the undersigned the veteran withdrew from appellate consideration his claim of entitlement to service connection for left calcaneal spurs. FINDINGS OF FACT 1. The Board is satisfied that all relevant evidence has been obtained and associated with the claims folder. 2. Throughout this appeal the veteran's ability to establish and maintain effective or favorable relationships with people has been severely impaired by his PTSD under the old criteria in the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 3. Throughout this appeal the veteran exhibited occupational and social impairment, with deficiencies in most areas, such as work, family relations, or mood so as to support the assignment of a 70 percent rating under the new Rating Schedule. CONCLUSION OF LAW A disability rating of 70 percent, but no more than 70 percent, is warranted for the veteran's service-connected PTSD. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411 (1999); 4.132, Diagnostic Code 9411 (1990). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background The veteran served on active duty from November 1967 to November 1969. In January 1991 he filed a claim seeking entitlement to service connection for PTSD. During a VA compensation and pension examination conducted in April 1991, the veteran reported that he has flashbacks of the experiences he had during his one year tour in Vietnam, and that they intensified with the onset of the Gulf War. He explained that he has not been able to get along with people since service, and that his desires, drives, energy, hopes and ambitions all left. His marriage broke up a year after his time in Vietnam, and he lost interest in being close. He reported he was not able to be normal as he perceived a husband should be, and couldn't feel family oriented. He has a strained relationship with his 21 year old son. Following service he worked as a machinist, then as a roofer until he injured his back. He said he thinks too much and too repetitiously. He is currently self employed as a welder, but tearfully indicated he was about to lose that business because he is just not able to do the work he used to be able to do. The veteran stated that he believed he should have been killed in Vietnam. He reported that most of the time since service he has been alone, anxious and depressed, and has had several short-term relationships. With the onset of the Gulf War he realized how much the Vietnam War took out of him. Upon examination, the physician noted the veteran was alert, well groomed, clean, and was cooperative. His facial expression was sad, and he cried several times during the interview. He seemed to be quite genuine. Speech was clear and coherent, and he did not seem to exaggerate events. He denied hearing voices or seeing visions, was not delusional, abstracted adequately, and his memory was good. He was not suicidal, but at times wondered whether he should have been killed rather than survive. His mood tended to be depressed and euphoric. The diagnostic impression was PTSD, moderate, with depression, also moderate. The service connection claim was granted in an August 1991 rating decision, and the disability was rated 10 percent disabling. The veteran expressed disagreement with that rating, and was provided a Statement of the Case. He requested a hearing, which was held before a hearing officer in March 1992. He testified that his PTSD symptoms have gotten worse since the Gulf War, that he has no drive, and that he finds himself withdrawing from customers in his welding shop. He thinks about Vietnam at night, more frequently than he used to. He reported that he had received no non-VA treatment for his PTSD. He added that he still works at his welding shop, but has help from his son. In a handwritten statement that he submitted at that hearing he added that he recalls his Vietnam experiences almost nightly. Another VA PTSD compensation and pension examination was conducted in March 1992. The veteran described being totally absorbed in thoughts of Vietnam since his return, to the extent that he has difficulty concentrating at work. He fears he will lose his business, but does not think he could handle working for someone else. He was distressed that his abuse of alcohol worsened with the Gulf War. At night, before he falls asleep, he thinks about Vietnam, although he does not currently have nightmares. He reported he is in an "attack mode" each night when he leaves his shop and walks to his truck. Upon examination and after conducting psychological testing, the psychologist noted the veteran was prompt; dressed and groomed neatly and casually; was cooperative, alert, and oriented; and appeared relaxed initially and established a good rapport with the examiner, but became tearful at times and on three occasions was so overwhelmed he was unable to continue for a few moments. The examiner concluded the appropriate diagnoses were PTSD, major depression and alcohol dependence. In a May 1992 rating decision the disability rating was increased to 30 percent, effective from the date of claim. The veteran was furnished a Supplemental Statement of the Case (SSOC) in June 1992, and in a decision dated in March 1995 the Board remanded the matter for additional development, to include obtaining treatment and employment information, as well as to afford the veteran the opportunity for a VA compensation and pension examination by a psychiatrist. During a VA compensation and pension examination conducted in January 1996 the veteran reported he had tried to stop drinking, but resumed when his sister died the previous November. He currently drinks twelve cans of beer a day. He reported he is intolerant of stress, has difficulty getting along with others, has a tendency to withdraw, is always preoccupied with thoughts of Vietnam, is hopeless, has no future plans, and has had suicidal thoughts but no intent, plan or attempted suicide. He avoids television, movies, and newspaper items about war. Upon examination following psychological testing, the psychologist diagnosed depressive disorder, not otherwise specified; PTSD, chronic and delayed; and alcohol dependent. He also assessed the veteran's Global Assessment of Functioning (GAF) as approximately 48, with his highest GAF in the last year as 50. His claim for an increased initial rating was denied, and in July 1996 he was furnished a SSOC. In response he reported he was receiving treatment at the VA Medical Center in Long Beach, California, and requested a hearing before a traveling Member of the Board. Records from that facility reflect that in September 1995 he was referred to that facility for PTSD treatment, and reported having had no current treatment anywhere, but did not respond to VA's phone or postal contacts for follow-up treatment. In May 1996 he was seen on an outpatient basis with complaints of depression, and tendencies to lose control when upset and to overreact to stress. He reported having had no treatment for anxiety in the past. Upon examination his affect was flat, mood was dysthymic, he was oriented, and his speech was somewhat agitated. He did not consider his twelve can per day beer consumption to be a problem. He was referred to a PTSD group. Pursuant to the Board's remand, an examination was conducted in September 1997 by a psychiatrist. The examiner reported that the veteran was alert, cooperative, oriented, made good eye contact, was casually and cleanly dressed, attempted to give accurate information, and showed no evidence of psychomotor agitation or retardation. Speech was coherent, clear and full; his affect was full and appropriate. His eyes teared up from time to time, and he appeared generally depressed in his demeanor. Thought processes were coherent and original with no evidence of tangentiality or circumstantiality; thought contents were relevant. He admitted to occasional suicidal ideation, but not to auditory or visual hallucinations. He reported homicidal feelings very deep down, and admitted to a belief that he has precognitive powers. Memory was good, as were insight and judgment. The examiner's diagnoses were PTSD by history and by current symptoms; major depression; alcohol dependence by history and current behavior. The examiner added that the symptoms attributable to the PTSD were recurrent dreams of the events; isolative behavior, constricted affect in relating to people or explosive affect; sleep disturbance; some guilt about surviving; memory impairment; avoidance of activities that remind him of past events; and that these symptoms were reactivated by the Gulf War. The examiner concluded major depression was also present, and attributed suicidal ideation, decrease in energy level, mood swings, increased irritability, the fact that during examination he frequently looked on the verge of tears, frequent sleep disturbances, and constant worrying to that disorder. Regarding the veteran's alcohol dependence, the examiner noted that the veteran continues to drink up to twelve beers per day and that the veteran states the alcohol helps his present symptoms. The examiner concluded that the degree of occupational and social impairment is moderate. An additional VA psychiatric compensation and pension examination was conducted in November 1998. The veteran reported he was receiving treatment, including medication, for his PTSD from the VA medical facility. The examiner reported that the veteran's employment and social functioning are not severely impaired, as the veteran was still working as a self-employed welder. The examiner noted no evidence of impairment in thought process and communication; no evidence of delusions or hallucinations; no inappropriate behavior; and no suicidal or homicidal ideation, intent or plan at present. The veteran's grooming and hygiene were still within the normal range, and he appeared oriented. Short- term memory was not severely impaired, and long-term memory was fair. No obsessive or ritualistic behavior that interfered with routine activities was reported, although the veteran was preoccupied with Vietnam experiences. The examiner noted that the veteran said he is less preoccupied with Vietnam experiences now thanks to his medication. Rate and flow of speech were within normal limits. The veteran reported no panic attacks; mood was mildly to moderately anxious and mild to moderately depressed, but not severe. No impairment of impulse control, and no severe impairment in sleeping problems were noted. The diagnosis was PTSD, mild to moderate, and his GAF was assessed at 65. VA treatment records were obtained. Those records reflect individualized therapy for his PTSD administered from September 1997 to and September 1998. During those sessions he complained of increasing insomnia and ruminative thoughts, daily thoughts of Vietnam, dysphoric mood, angry affect, problems with the interpersonal relationship with his son, exaggerated startle response, occasional vivid dreams accompanied by sweating, anxiety and exaggerated startle response, depressed mood, irritable mood, euthymic mood. He was prescribed several different medications for his psychiatric symptoms. In SSOCs supplied to the veteran in March and April 1999 the RO reflected consideration of the claim for an increase under the new version of the regulations, and under the old version, and concluded a higher rating was not warranted under either version. In a letter dated in May 1999 from Dr. T, the veteran's treating VA psychiatrist, he opined that the veteran suffers from a severe form of chronic PTSD with an underlying depressive disorder. He noted symptoms of impairment in concentration, internal distractions, periods of confusion, sleep disorder and persistent reexperiencing of traumatic events witnessed during active duty. He added that as a result of chronic mental illness, the veteran has impairment in the ability to perform occupationally and socially. The RO prepared a SSOC that reflected consideration of that evidence, but concluded an increased rating was not warranted. At a hearing before the undersigned in November 1999, the veteran testified that he had withdrawn his claim of entitlement to service connection for heel spurs, and his representative submitted written notification of that withdrawal. He testified that he is tired of Vietnam being the most memorable year of his life. He reported he still operates his welding business with his son, although he has problems with concentration and often forgets about job appointments he has made. He reported he is usually at the shop more than 40 hours a week, but has concentration problems that interfere with his ability to work. He reported he had not been treated for his PTSD in six months, and was still taking medication but not the full dosage, as he needed refills. He explained that when he takes the correct amount of medication he can sleep, but otherwise has problems sleeping. He testified that he seldom goes anywhere or does anything, and has not been able to get out on the sand dunes on his four-wheel motorcycle for enjoyment like he used to do. He said he lives at the poverty level. He testified that everything reminds him of Vietnam, and that Vietnam is always foremost in his mind. The medication he takes helps with his sleep problems, but not with his concentration. He explained that he and several others rent a home owned by his brother, and that if it were not for the living arrangement he has with his brother he would probably be homeless. Applicable Laws and Regulations Disability evaluations are determined by the application of the Rating Schedule. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two evaluations shall be assigned, 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. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust the schedule in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due to the service- connected disability. The governing norm in those exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The relevant schedular criteria for evaluation of psychiatric disabilities have changed since the appellant filed his claim for an increased rating. The law requires that VA consider the claim for an increase under both the old and the new version of the regulations, and then apply the version that is most advantageous to the veteran. Karnas v. Derwinski, 1 Vet. App. 308 (1991). On November 7, 1996, the Rating Schedule was amended with respect to certain psychiatric disorders, including PTSD. 61 Fed. Reg. 52,695 (October 8, 1996). When the veteran filed this claim in January 1991, the Rating Schedule called for the following rating levels with respect to psychoneurotic disorders: General Rating Formula for Psychoneurotic Disorders: The attitudes of all contacts except the most intimate are 100% 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. Ability to establish and maintain effective or favorable 70% relationships with people is severely impaired. The psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. Ability to establish or maintain effective or favorable 50% relationships with people is considerably impaired. By reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. Definite impairment in the ability to establish or 30% maintain effective and wholesome relationships with people. The psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. Less than criteria for the 30 percent, with emotional 10% tension or other evidence of anxiety productive of mild social and industrial impairment. There are neurotic symptoms which may somewhat adversely 0% affect relationships with others but which do not cause impairment of working ability. 38 C.F.R. § 4.132, Psychoneurotic Disorders (1990). The purpose of the 1996 change in the Rating Schedule was to update the portion of the rating schedule addressing mental disorders, ensure that it used current medical terminology and unambiguous criteria, and reflected medical advances. 61 Fed. Reg. 52,695 (October 8, 1996). On and after November 7, 1996, the pertinent provision read as follows: General Rating Formula for Psychoneurotic Disorders: Total occupational and social impairment, due to such 100% 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. Occupational and social impairment, with deficiencies 70% 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. Occupational and social impairment with reduced reliability 50% 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 effective work and social relationships. Occupational and social impairment with occasional 30% 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). Occupational and social impairment due to mild or transient 10% symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A mental condition has been formally diagnosed, but symptoms 0% are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9405 (1999). Analysis of a claim for a higher initial rating requires consideration of the possibility of staged ratings, wherein VA assesses whether the level of impairment has changed during the pendency of a claim, and then determines the appropriate rating at those various stages. Fenderson v. West, 12 Vet. App. 119 (1999). Analysis The veteran asserts that a 50 percent rating disability rating is warranted. The record reflects that the veteran consistently reports intrusive thoughts of Vietnam, although he has not asserted he suffers auditory or visual hallucinations. The evidence set out hereinabove includes no evidence that supports a finding that the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community, as the veteran shares living arrangements with several other individuals, and is able to continue with his business relationships, although as he has described those business relationships appear to be impaired. Neither the veteran nor his examiners describe 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. The record reflects the veteran has been able to maintain self employment, although he testified that his income from his welding business is at the poverty level. The record does suggest, however, that the veteran's ability to establish and maintain effective or favorable relationships with people is severely impaired by his PTSD. His treating physician, Dr. T, opined in May 1999 that the veteran's symptoms are of such severity and persistence that there is impairment in his ability to obtain or retain employment. Based on the evidence of record and under the old Rating Schedule criteria, the Board finds that the veteran's reported concentration problems, intrusive thoughts of Vietnam and sleep disturbances over the years this claim has been in development reflect social and industrial impairment more accurately characterized as severe than as definite or considerable. Accordingly, a schedular rating of 70 percent is warranted under the old version of the criteria; a rating of 100 percent is not warranted, however, for the reasons set out above. 38 C.F.R. §§ 4.7, 4.132, Diagnostic Code 9411 (1990). The Board has also considered whether a rating of more than 30 percent is warranted under the new version of the Rating Schedule. The evidence does not suggest the veteran experiences total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication, as the veteran does not complain of those symptoms; persistent delusions or hallucinations, as the veteran repeatedly denies such hallucinations; grossly inappropriate behavior has never been described by the veteran or by his examiners. Although the veteran has reported suicidal and homicidal ideation in the past, he has never had a plan to carry out such ideation, so there is no evidence of a persistent danger of hurting himself or others; there is no evidence of an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); the veteran does not report, nor do the examiners, that he is disoriented to time or place, nor is there evidence present of memory loss for names of close relatives, his own occupation or his own name. There is, however, evidence of record of occupational and social impairment, with deficiencies in most areas, such as work, family relations, or mood, due to such symptoms as: suicidal ideation; near-continuous depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); difficulty in adapting to stressful circumstances (including work or a worklike setting); and a demonstrated inability to establish and maintain effective relationships. Based on the foregoing, the Board finds that under the new version of the criteria in effect since 1996, a disability rating of 70 percent, but not of 100 percent, is warranted for the veteran's service-connected PTSD. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (1999). The Board has considered whether the record suggests that the level of impairment attributed to the veteran's PTSD has varied during the pendency of this appeal, such that a staged rating would be appropriate. The RO stated that the veteran has only recently complained of impaired concentration. However, in his description of the symptoms attributed to his PTSD throughout this appeal he has consistently reported that his employment has been adversely effected by his intrusive thoughts and the other manifestations of this illness that were exacerbated by the Gulf War, and in the March 1992 VA compensation and pension examination he reported being totally absorbed in thoughts of Vietnam experiences to the extent it interfered with his concentration at work. Based on the foregoing, the Board finds that the level of disability appears to have been consistent since the veteran filed his claim in 1991. Accordingly, a staged rating is not necessary under the facts of this case. Fenderson. In reaching this disposition, I have given considerable weight to the veteran's very persuasive testimony before me on November 3, 1999. The Board has also considered whether additional action is required in response to 38 C.F.R. § 3.321(b)(1), which permits the Under Secretary for Benefits, or the Director of the Compensation and Pension Service, to approve an extra- schedular evaluation in some circumstances. The Board notes that to date the RO has not addressed the matter of the possible application of this regulation. After a careful consideration of the evidence of record, the Board finds it does not reveal the veteran requires frequent periods of hospitalization as the result of his PTSD. There is likewise no evidence to support a finding that the veteran's PTSD has resulted in such a significant deterioration of health and vocational function beyond that contemplated by the currently assigned 70 percent schedular rating. Accordingly, the Board finds that additional action is not warranted under 38 C.F.R. § 3.321(b)(1). ORDER A disability rating of 70 percent is warranted for the veteran's service-connected PTSD, and to that extent the appeal is granted, subject to the laws and regulations governing the payment of monetary benefits. John E. Ormond, Jr. Member, Board of Veterans' Appeals