Citation Nr: 0002937 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 88-54 384 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUE Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Parakkal, Associate Counsel INTRODUCTION The veteran served on active duty for training from June 1961 to December 1961 and on active duty from December 1961 to October 1971 and from January 1972 to January 1975. By a May 1991 RO decision, the veteran's claim for an increased (compensable) rating for a psychiatric disability was denied; and he appealed this decision to the Board of Veterans' Appeals (Board). In June 1992, the Board remanded the veteran's claim to the RO for further development. By a June 1993 decision, the RO granted the veteran an increased rating, to 30 percent, and recharacterized his service- connected psychiatric disability as PTSD. In June 1994, the Board denied the veteran's claim for an increase in a 30 percent rating; and he appealed this decision to the United States Court of Veterans Appeals (which has been recently renamed the United States Court of Appeals for Veterans Claims (Court)). By a May 1995 Court order, that portion of the Board's June 1994 decision which denied the veteran an increased rating for PTSD was vacated, and the case was remanded to the Board. In September 1995 and November 1997, the Board remanded the veteran's claim to the RO for further evidentiary development. The case was returned to the Board in September 1999. FINDING OF FACT The veteran's service-connected PTSD is productive of no more than definite social and industrial impairment and no more than occupational and social impairment with occasional decrease in work efficiency. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (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 I. Factual Background The veteran served on active duty for training from June 1961 to December 1961 and on active duty from December 1961 to October 1971 and from January 1972 to January 1975. The veteran's service personnel records reflect he had combat service in the Republic of Vietnam. During active duty, in February, March, and April 1971, the veteran was hospitalized for treatment of schizophrenic episodes. By a May 1976 RO decision, service connection for paranoid schizophrenia was granted and a noncompensable evaluation was assigned. By a November 1976 RO decision, the veteran's rating was increased from 0 to 30 percent. By a June 1981 RO decision, the veteran's rating was reduced from 30 to 10 percent; and by an October 1986 decision, the veteran's rating was further reduced from 10 to 0 percent. In a September 1990 statement, the Louisiana Department of Public Safety and Corrections indicated that the veteran had resigned from his position as a correctional officer in September 1990 and was looking for a new job as an accounting technician. In an April 1991 application for Social Security Administration (SSA) benefits, the veteran indicated that a variety of physical disabilities (including residuals of a gunshot wound to the face and back problems) prevented him from working. He did not describe any psychiatric problems. He noted he had last worked in an adult correctional facility from 1986 to 1990. He said his social contacts, included visits with friends, relatives, and neighbors. He also said he could drive a car and ride the bus. In a June 1991 statement, Randall J. Smith, M.D., indicated that the veteran had been coming to his office since December 1987. Dr. Smith opined that the veteran could be declared disabled by the military and Social Security Department based on his gunshot wound residuals, high blood pressure, bilateral carpal tunnel syndrome, and schizophrenia. The veteran underwent a VA psychiatric compensation examination in October 1992. During the examination, it was noted he had served in Vietnam and had been exposed to multiple stressors in combat. After his release from active service, the veteran said, he had worked as a security guard and as a corrections captain. He reported having worked at Angola State Prison from 1986 to 1990, and then retired due to multiple physical problems. It was noted that he did not have any female friends but had a number of male friends. It was noted that he had been married twice. His first marriage was from 1962 to 1966; and his second marriage was from 1968 to 1971. He said he had two children from the first marriage and one child from the second marriage. As for current complaints, he said he had sleep difficulty and took prescription medication as treatment for such. He did not describe himself as particularly anxious or depressed, and he denied having any PTSD symptoms. It was noted that there was no evidence of alcohol or drug use over the past 15 to 20 years. On objective examination, he denied having any delusions, auditory or visual hallucinations, or suicidal or homicidal ideation. His mood appeared to be euthymic; and his affect was mood congruent without any over-lability. The Axis I diagnosis was an organic anxiety disorder, secondary to a gunshot wound above the left eye; and the Axis II diagnosis was an organic personality disorder, secondary to a gunshot wound above the left eye. During an April 1993 VA psychiatric examination, the veteran related a number of symptoms which were consistent with PTSD including flashbacks, nightmares, decreased sleep, isolative behavior, a sense of a foreshortened future, and recurrent memories of traumatic events. He said he tended to be rather isolated, and stayed at home with his father. The examiner noted that the veteran was moderately anxious. The veteran preferred not to talk about his combat experience and it was noted that he had some gaps in his memory regarding such. He had no current symptoms of mania or a psychosis. On objective examination, the veteran was alert and oriented times three. His attention and concentration appeared to be intact. His mood was euthymic; and his affect and mood were congruent. He denied having homicidal and suicidal ideation, or auditory or visual hallucinations. His memory was intact for immediate, recent, and remote events and his ability to complete calculations was intact. He appeared to be a little anxious at times when describing events related to Vietnam and preferred to avoid discussion of these events. It was noted that there was no evidence of loose associations or a flight of ideas. The Axis I diagnosis was mild to moderate PTSD. The examiner opined that the veteran did not have schizophrenia, and pointed out that he was not on any psychiatric medication at the present time. SSA documents, received at the RO in June 1993, reflect that the veteran's claim for SSA disability benefits was denied in September 1992. Thereafter, the veteran appealed to the SSA Appeals Council. In an Order of the Appeals Council, it was noted that while the previous SSA decision had found that the veteran had severe mental impairment, there was no rationale for such a finding. Further, the Appeals Council pointed out that considered evidence (a psychiatric review technique form) did not, in fact, reflect that the veteran's mental impairment was severe but rather indicated that there was insufficient information to make a determination as to whether he had deficiencies of concentration and episodes of deterioration or decompensation in work or work-like settings, among other things. The Appeals Council remanded the veteran's claim for disability benefits back to a SSA Administrative Law Judge for review. By a June 1993 decision, the RO granted the veteran an increased rating, to 30 percent, for his service-connected psychiatric disorder and recharacterized such as PTSD. During a September 1994 VA general medical compensation examination, the veteran had normal neurological findings. It was noted that his memory was decreased for his age and that his concentration was normal. It was also noted that he was capable of managing his benefit payments. The veteran underwent a VA psychiatric compensation examination in June 1996. He reported he had last worked in 1990, at the Angola State Penitentiary; he related he quit that job because, among other things, his previous combat experience was causing him problems. He related that he occasionally thought about the war, particularly when the media focused on such. He denied having any delusional ideation or hallucinations. He denied experiencing any nightmares or flashbacks, and denied being easily startled or hypervigilant. On mental status examination, he was casually dressed. He was alert, oriented, cooperative, and anxious. His speech was normal in volume but slightly pressured. He was not depressed, suicidal, or homicidal. He was not delusional or hallucinatory. His fund of knowledge was adequate. His memory and judgment were intact. His insight was fair. He was able to handle his own affairs. The Axis I diagnosis was PTSD by history. His global assessment of functioning (GAF) score was 70. In October 1996, the veteran was hospitalized at a VA facility. Prior to his admission, he said, he started feeling bad after looking at some old photos of his brother (who had committed suicide). He also said he had experienced an anxiety attack (prior to his admission to the hospital) and was fearful that he might commit suicide. He denied having a startle reaction or nightmares and said he had some flashbacks. On mental status examination, he was oriented times three, and was cooperative. His speech was normal in rate and volume. He had a congruent affect, and smiled at times. He had no auditory or visual hallucinations, paranoia, or homicidal or suicidal ideation. He was goal directed. During the course of the hospitalization, he was given medication for depression and anxiety. At the time of hospital discharge, the veteran reported feeling fine, said he was sleeping well, and denied having any suicidal ideation. The Axis I diagnoses were depression (not otherwise specified with anxiety) and PTSD by history. VA outpatient treatment records, dated in November 1996, show that the veteran was living in his mother's house. He reported having problems with insomnia. It was noted that he had a depressed mood and was not overtly psychotic. He denied having any suicidal or homicidal ideation and was independent in his activities of daily living. A January 1997 VA outpatient treatment record shows that the veteran reported he was too busy to be depressed. He related he had some initial insomnia but also said his energy level was improving and the future was hopeful. He denied having suicidal or homicidal ideation, or auditory or visual hallucinations. The clinical impressions were depression (not otherwise specified) and PTSD. In an April 1997 statement, a claims representative of the SSA, indicated that the veteran was neither receiving social security benefits nor social security supplemental income. It was also noted that SSA did not have any of the veteran's medical records. Again, in a March 1998 note, SSA indicated that they did not have any records relating to the veteran. In July 1998, the veteran underwent a psychological evaluation at a private facility, as part of his application for a job within the East Baton Rouge City Parish. During the evaluation, he reported, he had completed 5 years of college and had earned a degree in law enforcement and corrections. He said his periods of employment ranged in duration from 3 to 14 years. He said he had been married twice, was currently divorced, and had five children who ranged in age from 30 to 37 years old. Following an academic assessment, it was concluded that the veteran was able to read at an above high school level, and spell and do arithmetic at a high school level; and the examiner remarked that the veteran's academic levels should be sufficient for most tasks required of a corrections officer. On objective personality assessment, it was noted the veteran involved himself in a significant amount of impression management and had a large number of idiosyncratic responses. Additionally, he portrayed himself as exceptionally free of the common shortcomings to which most individuals will admit. It was also concluded that because of his overly defensive test- taking posture he was not recommended for hire by Juvenile Services. Additionally, because of his high level of defensiveness, the psychological interpretation of the profile was deemed invalid. In numerous letters, received at the RO in February and March 1999, SSA noted that the veteran's claim for SSA disability benefits had been previously denied. SSA also noted that the veteran's file no longer existed (as it had been destroyed) and there was no means of reconstructing such. II. Legal Analysis The veteran's claim for an increased rating for PTSD is well- grounded within the meaning of 38 U.S.C.A. § 5107(a), meaning that it is not inherently implausible. Evidentiary development requested by the Board in 1995 and 1997 has been completed to the fullest extent possible. In this regard, it is pointed out that exhaustive attempts to obtain any outstanding SSA records were unsuccessful. According to SSA, all of the veteran's records have been destroyed and cannot be reconstructed. As such, VA has fulfilled its obligation to assist the veteran and his claim must now be adjudicated. See Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke v. Derwinski, 1 Vet. App. 90 (1990). When rating the veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the present level of disability is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. During the course of the veteran's appeal, the regulations pertaining to the evaluation of psychiatric disorders were revised. Under the old criteria pertaining to PTSD, in effect prior to November 7, 1996, a 30 percent rating is to be assigned when 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. (The term "definite" in the regulation means "distinct, unambiguous, and moderately large in degree, more than moderate but less than rather large." VAOPGCPREC 9-93.) A 50 percent rating is assigned when the ability to 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. A 70 percent rating is assigned when symptoms result in severe social and industrial impairment. A 100 percent rating is assigned when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; there is 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 the veteran is demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). On November 7, 1996, the rating criteria for psychiatric disorders were revised and are now found in 38 C.F.R. § 4.130. Under the new criteria, a 30 percent rating is assigned for 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 50 percent rating is to be assigned for 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. A 70 percent rating is assigned when the psychiatric condition produces 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 rating of 100 percent is only merited in those situations in which the veteran's mental disability rises to a state of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communications; 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. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1999). As the veteran's claim for an increased rating for PTSD was pending when the regulations pertaining to psychiatric disabilities were revised, he is entitled to the version of the law most favorable to him. Karnas v. Derwinski, 1 Vet. App. 308 (1990). Here, either the amended or current rating criteria may apply, whichever are most favorable to the veteran. As an initial matter, it is noted that there is evidence on file which shows that the veteran has a personality disorder. A personality disorder is not a disease or injury for VA compensation purposes, and related impairment may not be considered in support of the veteran's claim for an increased rating for PTSD. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; Beno v. Principi, 3 Vet. App. 439 (1992). Applying the old criteria, with particular regard to social adaptability, it is noted that while the veteran describes himself as somewhat of a loner, evidence on file conversely shows that he has a variety of social contacts including his parents, several male friends, and neighbors. With regard to industrial adaptability, it is noted that the veteran has a college education with a degree in law enforcement and corrections. His last job was as a correctional officer with the Louisiana Department of Public Safety and Corrections, from 1986 to 1990. A statement from the veteran's employer shows that he was not fired from his job as a correctional officer but he voluntarily quit (in 1990) as he wanted to pursue work as an accounting technician. He has apparently been unemployed ever since. At a VA psychiatric compensation examination in April 1993, the veteran's PTSD was described as mild to moderate. More recently, in June 1996, objective findings from a VA psychiatric examination were for the most part normal, aside from slightly pressured speech and some anxiousness. His GAF score was 70. In July 1998, the veteran underwent a psychological evaluation. Unfortunately, the findings of the psychological profile were deemed invalid due to the veteran's defensive test-taking posture. While it is acknowledged that SSA, in a 1992 decision, apparently described the veteran's mental impairment as severe, this characterization, alone, without corroborative medical evidence is of little probative value. Notably, in June 1993, the SSA Appeals Counsel questioned the validity of the previous SSA finding regarding the severity of the veteran's mental impairment and pointed to specific medical evidence which was to the contrary. Indeed, recent medical evidence (discussed above) does not reflect severe mental impairment but is suggestive of mild to moderate impairment. Additionally, it is acknowledged that the veteran's private physician (Dr. Randall Smith), insinuated in a 1991 statement that the veteran was totally disabled. Dr. Smith, however, did not solely attribute the veteran's state of impairment to his service-connected psychiatric disorder. Rather, he indicated that the veteran had multitude of physical problems, including gunshot wound residuals, high blood pressure, and bilateral carpal tunnel syndrome, as well as a psychiatric disorder, all of which contributed to his disabled state. It must be pointed out that impairment from disabilities other that PTSD may not be considered in support of the veteran's claim for an increased rating. 38 C.F.R. § 4.14. In sum, the evidence does not demonstrate that, due to his PTSD, alone, his ability to establish and maintain effective or favorable relationships with people is considerably impaired and that psychoneurotic symptoms are of such severity and persistence that there is considerable impairment in the ability to obtain or retain employment, as would warrant a 50 percent rating. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). The weight of the evidence shows that the veteran's psychiatric disorder more nearly approximates the old criteria for a 30 percent rating (a definite degree of social and industrial impairment). 38 C.F.R. §§ 4.7, 4.132, Diagnostic Code 9411 (1996). With respect to the new criteria, the medical evidence on file, including clinical findings from 1992, 1993, and 1996 VA compensation examinations, has generally reflected that the veteran is well oriented with intact judgment and insight. There is no evidence of delusions, auditory or visual hallucinations, or homicidal or suicidal ideation. His mood has, on occasion, appeared euthymic; he has had sleep difficulties; and he has appeared anxious. Nevertheless, the Board finds that his overall symptoms do not support a 50 percent rating under the new criteria. There is no evidence on file showing reduced reliability and productivity due to symptoms, including circumstantial, circumlocutory, or stereotyped speech, panic attacks which occur more than once a week, difficulty in understanding complex command, or impaired judgment and abstract thinking. It is pointed out that the veteran has not received any significant treatment for PTSD in recent years. Based on all the evidence, an increased rating to 50 percent is not warranted under the new criteria. 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). The weight of the evidence establishes that the veteran's PTSD is no more than 30 percent disabling under either the old or new regulations concerning ratings for psychiatric disorders. Finally, there is no evidence of an exceptional or unusual disability picture with related factors, such as marked interference with employment or frequent periods of hospitalization, as to warrant referral of the case to appropriate VA officials for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Shipwash v. Brown, 8 Vet. App. 218 (1995). There is no evidence that the veteran's service-connected psychiatric disorder has recently required frequent periods of hospitalization. Further, while his service-connected psychiatric disorder may well cause some impairment in his daily activities, there is nothing to distinguish his situation from the cases of numerous other veterans who are subject to the schedular rating criteria for psychiatric disorders. In any event, the Board, in the first instance, may not assign an extraschedular rating. Floyd v. Brown, 9 Vet. App. 88 (1996). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for an increased rating for PTSD must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An increased rating for PTSD is denied. G. H. SHUFELT Member, Board of Veterans' Appeals