Citation Nr: 0004327 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 98-07 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date earlier than October 29, 1996, for the award of a 100 percent evaluation for post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Valerie E. French, Associate Counsel INTRODUCTION The veteran served on active duty from January 1943 to August 1945. He served during World War II and his decorations include the Air Medal with 3 Oak Leaf Clusters and the Distinguished Flying Cross. This appeal arises before the Board of Veterans' Appeals (Board) from an October 1997 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), in which an increased evaluation of 100 percent was granted for PTSD, effective January 17, 1997. In an August 1999, the RO partially granted the veteran's claim by extending the effective date for the 100 percent evaluation for PTSD to October 29, 1996. The veteran has indicated his continued disagreement with the assigned effective date, and he contends that the appropriate effective date for the award of a 100 percent evaluation for PTSD is February 7, 1995. In January 1999, the Board remanded this claim to the RO for the purpose of further evidentiary development. Having reviewed the record, the Board is satisfied that the specified development has been completed to the extent possible, and that the instant claim is ready for adjudication on appeal. FINDINGS OF FACT 1. Service connection was granted for psychoneurosis, anxiety state, in June 1946. 2. The veteran's claim for an increased evaluation for his service-connected psychiatric disorder was received at the RO on September 30, 1996. 3. Outpatient treatment records, for the period of September 30, 1995, to October 28, 1996, show that the veteran underwent therapy in which he explored situational issues, and his difficulties included narcissistic qualities, difficulty with intimacy, irritability, and impaired social judgment. During this time, it was noted that symptoms of depression were decreasing, and mental status examinations were essentially normal with normal psychomotor activity, relevant and coherent speech, intact reality testing, neutral affect, and full orientation, and good memory, judgment, and insight. 4. For the period of September 30, 1995, to October 28, 1996, there evidence does not demonstrate the manifestation of totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality or other symptoms resulting in a profound retreat from mature behavior; nor does the evidence from this period show that veteran was unable to obtain or retain employment as a result of his service- connected psychiatric disorder. 5. The earliest evidence of an increase in the severity of the veteran's psychiatric symptomatology is shown at the time of VA mental hygiene treatment on October 29, 1996. CONCLUSION OF LAW An effective date earlier than October 29, 1996 is not warranted for the award of a 100 percent evaluation for PTSD. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim for an earlier effective date is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998) that is, the claim is plausible. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). The record does not indicate the need to obtain any additional pertinent records, and is accordingly found that all relevant facts have been properly developed, and that the duty to assist the veteran has been satisfied. Background In June 1946, service connection was granted for psychoneurosis, anxiety state, moderate, due to combat stress, depressed fatigue neurosis, nervous stomach, and interrupted sleep, incurred in combat. In August 1946, the diagnosis was changed to psychoneurosis, anxiety state, rated as moderately severe. The record includes private medical records, dated between 1992 and 1995, which show that the veteran was followed by a psychiatrist for complaints of depression and isolation, worsening moods, and loss of interest in activities. The record indicates that the veteran began VA outpatient treatment for his service-connected mental disorder on February 7, 1995. On intake, it was noted that he had been seeing an outside physician for suicidal thoughts and depression. Initial progress notes and medical reports, dated in March 1995, April 1995, and June 1995, show that his mental status examinations were essentially normal. Treatment and therapy notes from 1995 show that the veteran was followed by the mental hygiene clinic, initially on a monthly basis and subsequently bi-weekly, for diagnoses of dysthymia disorder and anxiety. A September 18, 1995 medical record shows that depression had decreased, but he was still feeling depressed at times since being placed on a new sleep medication. In October 1995, it was noted that he was not showing signs of depression and he was sleeping and eating well; and that he used defensive behavior in intellectualizing and avoiding his emotions. In November 1995, the veteran discussed his family dynamics and an assessment of "patient has narcissistic tendencies and defense appears to be protective identification," was given. In December 1995, the veteran reported feeling depressed about his age, and the therapist noted that he was controlling and admitted to having little patience with small talk when socializing. He stated that he had started to volunteer again. The therapist indicated that the veteran had been in the stages of life review and was dealing with immortality at his age of 72. In January 1996, he continued to display narcissistic qualities but was making an effort to be more aware of others. He was also continuing to deal with life span issues, his own mortality, and he was working at staying fit and focusing on the positive. In March 1996, the therapist indicated that the veteran continued to be motivated in enhancing his life. A March 1996 medical record indicates that the veteran had been stable on Lorazepam and Prozac, taken daily, and he had reported good benefits from his medications. He denied side effects and suicidal and homicidal ideations, and memory and judgment were intact. He was non-delusional. An assessment of stable with functioning level, under treatment for dysthymia and anxiety, was given. An April 1996 medical record shows that when evaluated psychiatrically, the veteran's condition was stable although he had recently been unable to sleep through the night. On objective examination, he was cooperative and alert. Psychomotor activity was within normal limits, and speech was coherent and relevant. Reality testing was intact, affect was appropriate, and mood was neutral. He was oriented times 3. Memory, insight, and judgment were good. An assessment of dysthymic disorder with anxiety was provided. In May 1996, the veteran reported that he and his wife were not talking. It was noted that he was in a transition period in that he was still working on communicating with his wife, as he had been working up until six years ago and it was only in the last year that he could communicate with her. A June 1996 therapy note shows that the veteran again referred to his marital problems, and the therapist indicated that he appeared angry and mildly depressed. The therapist speculated that he was having side effects due to his disinterest in sexual desire. It was noted that he displayed narcissistic qualities, difficulty with intimacy, irritability, impaired social judgment, and he was more focused on himself. When seen by a mental health physician in July 1996, the veteran was cooperative, alert, and psychomotor activity was within normal limits. Mood was neutral, reality testing was intact, and he was oriented times 3. Memory, thought processes, and judgment were good. An assessment of dysthymic disorder with anxiety was given. On September 30, 1996, the veteran had called to reschedule his appointment. A claim for an increased evaluation for his service-connected psychiatric disorder was received at the RO on September 30, 1996. and the veteran indicated that he experienced severe and persistent anxiety and depression resulting in pronounced impairment in the ability to retain employment. An October 29, 1996 mental health progress note shows complaints of tearful sessions, symptoms of isolation, and flashbacks and memories of World War II. He appeared to be exhibiting symptoms of depression unresolved emotions of the past and present issues regarding his own death. A November 19, 1996 treatment note indicates that the veteran presented as agitated and disheveled and was expressing symptoms of PTSD. A January 1997 treatment note shows that the veteran was reporting symptoms of depression, difficulty sleeping, loss of interest, nightmares and flashbacks, and continued problems communicating with his wife. In January 1997, the veteran underwent a examination by a VA psychologist, at which time the following diagnoses were provided: Axis I, PTSD, chronic; Axis II, no diagnosis; Axis III, deferred; Axis IV, problems with primary support group, problems with lack of adequate social support system, exposure to war, and disaster; Axis V, a current Global Assessment of Functioning (GAF) of 40 was assigned, which was noted to be indicative of major impairment in several areas. In June 1997, the RO granted an increased evaluation of 50 percent disabling for PTSD, with dysthymic disorder, previously rated as psychoneurosis, anxiety, effective February 7, 1995. The RO's decision was based on the VA outpatient treatment records, dated from February 7, 1995, to August 20, 1996, and the findings at the time of the January 1997 VA examination. In October 1997, the RO granted an increased evaluation of 100 percent disabling for PTSD, effective January 17, 1997 (the date of VA examination). In a November 1997 statement, the veteran argued that the 50 percent rating (awarded in June 1997) was based on the same evidence (including the January 1997 VA examination and the outpatient records dated 1995-1996) which was used as the basis for the award of a 100 percent evaluation. Therefore, it is his belief that appropriate effective date for a total rating is February 7, 1995, the date to which a 50 percent rating was made effective via the RO's June 1997 rating decision. At a October 1998 videoconference hearing before a member of the Board, the veteran's accredited representative argued that the psychiatric symptoms shown at the time of the January 1997 VA examination were the same as those exhibited prior to the examination. These symptoms included episodes of teariness; depression, panic attacks, flashbacks, sleep difficulties, isolation, a poor relationship with his wife; and lack of desire to participate in activities. The veteran testified that he did not groom or answer the phone, and he was making life miserable. In an August 1999 rating decision, an effective date of October 29, 1996 was assigned for the 100 percent evaluation for PTSD. The RO determined that with resolution of all reasonable doubt in favor of the veteran, the onset of increased psychoneurotic symptomatology sufficient to support a total disability evaluation was manifested by the complaints of more intense symptoms as shown on October 29, 1996, and that records prior to that date showed that the veteran's psychiatric status remained stable with medication. The veteran has indicated his continued disagreement with the assigned effective date. Analysis The veteran contends that an effective date earlier than October 29, 1996, is appropriate for the award of a total schedular evaluation for PTSD. He has argued that an February 7, 1995, is warranted for such benefits. The pertinent laws and regulations provide that the effective date of an increased rating shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. The effective date of an increase in disability compensation may also be assigned for up to one year prior to the date of the receipt of the claim if it is factually ascertainable that an increase in disability occurred if the claim is received within one year from such date. See 38 C.F.R. § 3.400(o) (1999). In order to determine whether an effective date prior to October 29, 1996, is warranted, the Board must determine whether the schedular criteria for a 100 percent evaluation were met earlier than that date. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. The Board notes that, during the pendency of this appeal, the regulations pertaining to rating psychiatric disorders were revised effective November 7, 1996. As a total schedular evaluation has been awarded from the date of October 29, 1996, only the regulations in effect prior to the 1996 changes are relevant in the instant appeal. Pursuant to the criteria in effect prior to November 7, 1996, under 38 C.F.R. § 4.132, Diagnostic Code 9200 (1996), evaluations for psychoneurotic disorders were based on the degree of social and industrial impairment. A 100 percent evaluation is warranted where the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community, with 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 resulting in a profound retreat from mature behavior, or demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). Because the veteran's claim for an increased rating was received on September 30, 1996, the evidence from within one year prior to that claim and up to the date of the October 29, 1996, effective date that is most relevant to the claim for an earlier effective date for a 100 percent rating. Having reviewed the evidence of the veteran's mental health treatment and status dated between September 30, 1995, and October 29, 1996, the Board finds that the preponderance of the evidence weighs against a finding that earlier effective date is warranted for the award of a 100 percent evaluation for PTSD. In the Board's view, the treatment records for the specified period are not indicative of totally incapacitating psychoneurotic symptoms illustrative of a profound retreat from mature behavior or virtual isolation in the community. The records for this period show that the veteran was undergoing therapy for issues involving his marital relationship, family dynamics, and his concern with the aging process. In September 1995, it was noted that depression had decreased, and in October 1995, he was not showing signs of depression and he was eating and sleeping well. The 1996 records indicate that he was focusing on staying fit and positive, and it was noted that his difficulties included narcissistic qualities, difficulty with intimacy, irritability, and impaired social judgment. When evaluated psychiatrically in April 1996, his condition was stable and mental status examination was essentially normal with normal psychomotor activity, relevant and coherent speech, intact reality testing, neutral affect, and full orientation. Memory, judgment, and insight were described as good. Similar findings are shown on mental status examination in July 1996. Following the July 1996 medical report, there is no record of psychiatric evaluation or mental hygiene therapy prior to October 29, 1996, the date on which the total schedular evaluation has been made effective. As a result, the record suggests that the veteran's functional abilities remained stable and that he experienced some improvement of his psychiatric symptomatology during the period of September 30, 1995, to October 28, 1996. While the evidence demonstrates that he was dealing with situational issues during that time, there are no objective findings which indicate the manifestation of a gross repudiation of reality, disturbed thought or behavior processes, or fantasy, confusion, panic, or explosions of aggressive energy resulting in a profound retreat from mature behavior. In addition, there is no evidence to suggest that the veteran ceased to function within his community, and in fact, he had indicated that he was had started to volunteer again. Furthermore, during the specified period the veteran was over 70 years old and had retired from employment several years before. There is no medical evidence which demonstrates that he was unable to obtain or retain employment as a result of his service-connected psychiatric disorder or that the psychiatric disorder was so severe as to entirely preclude occupational and social adaptation entirely. As such, the record does not show that the veteran's psychiatric disability was productive of a total, or 100 percent evaluation in the year prior to September 30, 1996 (the date of claim for increase); nor does the evidence indicate evidence of the manifestation of symptomatology consistent with a total rating at a date earlier than October 29, 1996. As the October 29, 1996 treatment record showing an increase in psychoneurotic symptoms is dated later than the date of the claim for an increased evaluation, the Board finds that October 29, 1996 is the appropriate effective date for the award of a total or 100 percent schedular evaluation for PTSD. Having found the preponderance of the evidence to be unfavorable, the Board has concluded that an effective date earlier than October 29, 1996, is not warranted for the grant of a total disability evaluation for PTSD. Accordingly, the veteran's claim is denied. ORDER An effective date earlier than October 29, 1996 is not warranted for the award of a 100 percent evaluation for PTSD. C. P. RUSSELL Member, Board of Veterans' Appeals