BVA9507502 DOCKET NO. 91-51 600 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for post traumatic stress disorder (PTSD) prior to September 1, 1991. 2. Entitlement to an evaluation in excess of 50 percent for PTSD beginning September 1, 1991. 3. Entitlement to an effective date earlier than September 8, 1986, for a grant of service connection for PTSD. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from August 1966 to April 1973. This appeal arises from a January 1987 rating decision of the Chicago, Illinois, Department of Veterans Affairs (VA), Regional Office (RO), which had denied entitlement to service connection for PTSD. In April 1988, a personal hearing was conducted at the RO. Following this, a rating action was issued that continued the denial in December 1988. A personal hearing was held at the Board in October 1989, following which the case was remanded for further development in February 1990. In August 1990, a rating action was issued which granted service connection for PTSD effective September 8, 1986, and which assigned this disability a 10 percent disability evaluation. Rating actions issued in May and September 1991 confirmed and continued the 10 percent disability evaluation. In June 1992, the RO issued a decision which increased his disability evaluation to 50 percent effective September 1, 1991. A year later, in June 1993, a rating action continued this evaluation. That same month, this case was remanded for further development. Following compliance with this remand, a rating action was issued in August 1993, which awarded a 100 percent disability evaluation effective July 1, 1993. In January and March 1994, rating actions were issued which denied all three claims as noted above. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that his service-connected PTSD was more disabling than the evaluations suggested. He states that he should have been assigned more than a 10 percent disability evaluation prior to September 1991. He asserts that his symptoms were more than mildly disabling. Moreover, he states that a greater than 50 percent disability evaluation has been demonstrated between September 1991 and July 1993. Therefore, he asserts that greater disability evaluations should be awarded. He also argues that the effective date for the grant of service connection should be earlier than September 8, 1986. He asserts that he was misdiagnosed after his discharge, stating that he has always suffered from PTSD. Therefore, he asserts that service connection should have been granted sooner than it was. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports a finding of entitlement to an increased evaluation for the veteran's PTSD prior to September 1991, that the preponderance of the evidence is against an increased evaluation beginning September 1, 1991, and is against the claim for an earlier effective date for the grant of service connection for PTSD. FINDINGS OF FACT 1. The veteran's PTSD resulted in considerable impairment prior to September 1991, and was manifested by anxiety, intrusive thoughts, nightmares, feelings of detachment and estrangement, and exaggerated startle response, sleep disturbance and substance abuse. 2. The veteran's PTSD resulted in no more than considerable impairment beginning September 1, 1991, and was manifested by recurrent nightmares and intrusive thoughts, flashbacks, anger, survival guilt, a startle response, and continuous alcohol abuse. 3. The veteran reopened his claim for service connection on September 8, 1986. CONCLUSIONS OF LAW 1. The criteria for a 50 percent disability evaluation for PTSD prior to September 1991 have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 3.321, Part 4, including §§ 4.1, 4.2, 4.7, 4.129, 4.130, Code 9411 (1994). 2. The criteria for a rating in excess of 50 percent beginning September 1, 1991 have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 3.321, Part 4, including §§ 4.1, 4.2, 4.7, 4.129, 4.130, Code 9411 (1994). 3. Under governing law, the effective date of the award of service connection for PTSD is no earlier than September 8, 1986. 38 U.S.C.A. § 5107(a), 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a),3.160(e), 3.400, 3.400(B)(2), 20.302, 20.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented claims which are plausible. We are also satisfied that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which should be obtained. Therefore, no further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). I. Increased rating claims Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). 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 (1994). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. In psychiatric cases, social integration is one of the best evidences of mental health. However, in evaluating impairment resulting from the ratable psychiatric disorders, social inadaptability is to be evaluated only as it affects industrial adaptability. This contemplates the effect that the abnormalities have upon the veteran's earning capacity. 38 C.F.R. § 4.129 (1994). Two of the most important determinants of disability are time lost from gainful work and decrease in work efficiency. Emphasis is to be placed upon the examiner's description of actual symptomatology. Ratings are to be assigned which represent the impairment of social and industrial adaptability based on all the evidence of record. 38 C.F.R. § 4.130 (1994). In Hood v. Brown, 4 Vet.App. 301 (1993), the Court of Veterans Appeals stated that the term "definite" in 38 C.F.R. § 4.132 (1994) was "qualitative" in character, whereas the other terms were "quantitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate "reasons and bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a precedent opinion dated November 9, 1993, the General Counsel of VA concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." O.G.C. Prec. 9-93 )Nov. 9, 1993). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c) (West 1991). With these considerations in mind, the Board will address the merits of the claim at issue. According to the applicable criteria, a 10 percent is warranted for PTSD when there is emotional tension or other evidence of anxiety productive of mild social and industrial impairment. A 30 percent evaluation requires definite impairment in the ability to establish or maintain effective and wholesome relationships with people and psychoneurotic symptoms resulting in such reductions in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. A 50 percent evaluation requires considerable impairment in the ability to establish or maintain effective and wholesome relationships with people and psychoneurotic symptoms resulting in such reductions in initiative, flexibility, efficiency, and reliability levels as to produce considerable industrial impairment. A 70 percent evaluation requires severe impairment in the ability to establish or maintain effective and wholesome relationships with people and psychoneurotic symptoms resulting in such reductions in initiative, flexibility, efficiency, and reliability levels as to produce severe industrial impairment. A 100 percent evaluation requires that attitudes of all contacts except the most intimate be so adversely affected as to result in virtual isolation in the community and there be totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes (such as fantasy, confusion, panic, and explosions of aggressive energy) associated with almost all daily activities resulting in a profound retreat from mature behavior. The individual must be demonstrably unable to obtain or retain employment. 38 C.F.R. Part 4, Code 9411 (1994). A. Entitlement to an evaluation in excess of 10 percent prior to September 1991. In September 1986, the veteran submitted a statement from a Vet Center social worker. This noted that the veteran had sought counseling between January and September 1984 for marital problems. He expressed unresolved feelings about his military experience. He apparently worked in Japan as a medic, where he saw many severely wounded men, which affected him deeply. During his tour in Japan, he was also critically wounded in an anti- American riot. He displayed several symptoms typical of PTSD, to include a very high anxiety level, recurrent and intrusive thoughts of past events, feelings of detachment and estrangement, exaggerated startle response and a sleep disturbance. It was noted that he drank in order to cope with these symptoms. At a personal hearing conducted in April 1988, the veteran recounted how his PTSD had affected his personal life, including the dissolution of his first marriage. He noted that his wife had left him because she had been afraid of him. He also indicated that he had had no steady employment in several years. The veteran was hospitalized between June and August 1988. He was initially admitted for the treatment of alcohol and drug abuse. During his stay, he was transferred to the Stress Unit, where he complained of intrusive thoughts, a sleep disturbance, nightmares, flashbacks, rage reactions and feelings of alienation. He was suddenly discharged after it was discovered he had used alcohol during a weekend pass. The diagnoses were PTSD, alcohol dependence, marijuana abuse. In June 1990, the veteran was admitted to a VA hospital for a period of observation and evaluation. It was again noted that he had given assistance to badly burned servicemen for over two years. During this time, he became withdrawn, suspicious and hostile. His severe wounding was also referred to. He was noted to experience flashbacks and nightmares, as well as withdrawal from others, depression and irritability. He self-medicated with alcohol. The conclusion of the evaluating psychiatrists was that he suffered from PTSD with related depression, hostility and substance dependence. In March 1991, a VA physician submitted correspondence indicating that the veteran was functioning at a level well below that reflected in the 10 percent disability evaluation. It was noted that he re-experienced the traumas that he had witnessed and endured on a daily basis while in service. He suffered from intrusive thoughts and recurring nightmares. He often awoke screaming. He experienced distress when he was exposed to helicopters, needles or hospitals. He was noted to self-medicate with drugs and alcohol in order to avoid stimuli. He displayed numbing, detachment from others and a restricted affect. There was increased arousal, hypervigilance and an exaggerated startle response. After his return from service, he attempted to work as a paramedic, but had to quit after it caused too many intrusive and disturbing memories. He was also unable to attend school, suffering from hypervigilance and a fear of others. It was the conclusion of the physician that the veteran suffered from severe social and industrial impairment. The Veteran Resource Center noted in March 1991 that the veteran suffered from flashbacks, particularly about one badly burned serviceman who subsequently died. He felt survival guilt, and noted that his sleep, when it finally came, was punctuated with nightmares. He stated that he often induced sleep with alcohol. He was usually depressed and tended to isolate himself. He also said that he would walk the streets as long as there were no crowds. His impairment was felt to be severe enough that gainful employment would be prevented. Fitting into a social setting was also difficult, thus preventing treatment in a group setting. Between April and May 1991, the veteran was hospitalized for extensive substance abuse treatment. A social work assessment performed on April 23, 1991 noted that the veteran was self- employed and was in a stable relationship with his wife. By the fifth of May, it was noted that he had improved markedly, and was even laughing with other patients. Between May and August 1991, the veteran was re-hospitalized by VA. It was noted that he was having problems with alcohol abuse. Depression, anxiety and significant withdrawal were present. He described a recurrence of feelings of helplessness, fear and inadequacy. He was detoxed and was referred to the PTSD program, where he was treated for his intrusive thoughts and anger. The diagnoses were psychoactive substance abuse, alcohol dependence, and PTSD. After a careful review of the evidence of record, it is the conclusion of the undersigned that a 50 percent evaluation for the veteran's PTSD prior to September 1991 is warranted. The evidence revealed that the veteran suffered from daily intrusive, disturbing thoughts of his service experiences. He also had nightmares from which he often awoke screaming. He displayed detachment and estrangement from others, depression, anxiety and anger. It was noted that he had difficulty maintaining employment. He was noted to self-medicate with alcohol and drugs, which contributed to his considerable degree of impairment. Clearly, the veteran's PTSD caused more than merely mild impairment during this period. However, it is the finding of the undersigned that the disability picture in this case does not show that his symptoms were severe in nature, thus arguing against a finding of a 70 percent disability evaluation. Moreover, an extraschedular evaluation under 38 C.F.R. § 3.321 is not justified. While the veteran has sought outpatient treatment for his PTSD, it had not resulted in frequent periods of hospitalization prior to September 1991. In fact, he was only hospitalized on three occasions between 1986 and August 1991. His PTSD has caused considerable interference with employment; however, this interference is adequately compensated for by the 50 percent disability evaluation now assigned. In conclusion, the evidence of record supports a finding of entitlement to a 50 percent disability evaluation for the veteran's service-connected PTSD prior to September 1991. B. Entitlement to an evaluation in excess of 50 percent for PTSD beginning September 1, 1991. The pertinent evidence revealed that the veteran was examined by VA in May 1992. This examination noted that he was unable to work secondary to pain in the leg the result of venous insufficiency. The psychiatric examination revealed that he was alert, oriented times three, and pleasant. The diagnoses were PTSD and alcohol abuse. An undated PTSD evaluation showed that the veteran displayed nervousness and anxiety. He was tearful and constantly irritable with unpredictable episodes of anger outbursts. He described intrusive recollections and nightmares. He avoided stimuli and crowds. He related a fear of losing control. He was hospitalized in January 1993 for alcohol detoxification. His PTSD was not treated, although it was noted that he sought treatment on an individual basis with his therapist. After a careful review of the evidence of record, it is the finding of the undersigned that an evaluation in excess of 50 percent beginning September 1991 is not warranted. The evidence revealed that the veteran did continue to suffer from symptoms of PTSD. However, the VA examination of May 1992 made no reference to extensive symptomatology. In fact, he was noted to be pleasant, oriented and alert. A January 1993 VA hospital report, while noting that he needed treatment for alcohol abuse, made no reference to any PTSD symptoms. Clearly, this evidence does not suggest that his symptoms were severe in nature. Rather, the disability picture reflects that his PTSD was considerable in degree. Therefore, the preponderance of the evidence is against a finding of entitlement to an evaluation in excess of 50 percent beginning September 1, 1991. Moreover, an extraschedular evaluation under 38 C.F.R. § 3.321 (1994) is not justified. The evidence does not show that this disability had resulted in frequent periods of hospitalization. While interference with employment was indicated, this interference was adequately compensated for by the 50 percent disability evaluation assigned. II. Entitlement to an earlier effective date The regulations state that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. A substantive appeal shall be filed within 60 days from the date of mailing of the statement of the case, or within the remainder of the one year period from the date of mailing of the notification of the initial review and determination being appealed, whichever period ends later. Otherwise, the determination becomes final and is not subject to revision on the same factual basis in the absence of clear and unmistakable error. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302, 20.303 (1994). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 1991). "New and material evidence" means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in conjunction with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1994). Generally, the effective date of an evaluation and award of compensation based on a reopened claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (1994). The effective date of an award based on direct service connection will be the day following discharge from active duty if the claim arose within one year after separation; otherwise, it will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(B)(2) (1994). A reopened claim is defined as any application for a benefit received after disallowance of an earlier claim. 38 C.F.R. § 3.160(e) (1994). In the instant case, the veteran was denied service connection for a nervous disorder in May 1981. This rating action considered a March to May 1980 VA hospital report and a September 1980 VA examination report. The hospital report indicated that the veteran was found to be suffering from manic-depressive illness. He had reported being unable to sleep for three days at admission, and of having to drink to end the "high." He also stated that he heard voices. He had flights of ideas and hyperactive speech. He improved after being placed on Lithium. The September 1980 VA examination found that the veteran displayed both schizophrenic and affective symptoms. His flattened affect and reported auditory hallucinations were noted. The diagnosis was noted to be schizophrenia, schizo-affective type. The May 1981 rating action stated that the diagnosed schizophrenia was too remote from service to be related. The veteran submitted a notice of disagreement with this decision, although it is noted that this was received after the one year period provided to timely appeal a rating action. A psycho-social report from May 1982 noted that the veteran suffered from withdrawal, depression, suicidal thoughts and bursts of anger. It was felt that the veteran needed a complete PTSD evaluation. Following this, he was examined by VA in September 1982. This examination specifically excluded PTSD as a diagnosis. Rather, it was certified that the correct diagnosis was schizoaffective disorder. Based on this evidence, the RO issued a rating action in January 1983 which denied entitlement to service connection for PTSD, since it had not been diagnosed. The veteran, while filing a timely notice of disagreement, failed to perfect the appeal in a timely manner. On September 8, 1986, the veteran reopened his claim for service connection for PTSD. A review of the evidence indicates that the rating actions of May 1981 and January 1983 were consistent with the evidence that was available at the time that they were made. This evidence did not establish that the veteran suffered from PTSD. Therefore, these decisions cannot be revised due to clear and unmistakable error. Because they cannot be so revised, the effective date of the veteran's grant of service connection for PTSD must be the date that his reopened claim was received, that is, September 8, 1986. Clearly, the preponderance of the evidence is against the award of an earlier effective date. ORDER A 50 percent disability evaluation for PTSD prior to September 1991 is granted. An evaluation in excess of 50 percent for PTSD beginning September 1, 1991 is denied. Entitlement to an earlier effective date is denied. C. P. RUSSELL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.