Citation Nr: 0000788 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 97-34 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a rating in excess of 30 percent for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD John Z. Jones, Associate Counsel INTRODUCTION The veteran served on active duty from August 1966 to July 1968. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a May 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision the RO granted entitlement to service connection for PTSD and assigned a 30 percent disability rating for the disorder. The veteran has perfected an appeal of the rating assigned for PTSD. In the Informal Hearing Presentation, dated in November 1999, the veteran's representative raised the issue of entitlement to service connection for alcohol abuse as secondary to PTSD. As this issue has not been adjudicated by the RO, it is referred there for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an informed decision of the veteran's appeal has been obtained. 2. The symptoms of PTSD are intrusive memories, nightmares once or twice a month, avoidance of friends and activities that stimulate Vietnam memories, difficulty sleeping, and hypervigilance, and are productive of no more than definite social and industrial impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.132, Diagnostic Code 9411 (1996); 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION When a veteran is awarded entitlement to service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability, the claim continues to be well-grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Upon review of the entire record, the Board concludes that all relevant facts have been developed and that VA's duty to assist the veteran has been met. 38 U.S.C.A. § 5107(a); see also Epps v. Brown, 9 Vet. App. 341 (1996), aff'd, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 118 S.Ct. 2348 (1998). Factual Background The service medical records are negative for any complaints or clinical findings pertaining to PTSD. VA outpatient treatment records show that a diagnosis of PTSD was entered on July 15, 1996. At that time, the veteran reported a history of significant PTSD symptoms for the first six to seven years after return from Vietnam. At the time of the diagnosis he reported getting six to eight hours of sleep per night, with nightmares related to Vietnam every two to three months. The VA treatment records indicate that the veteran continued to receive treatment for PTSD and alcohol abuse through April 1998. The treatment records do not, however, provide significant information pertaining to the veteran's PTSD symptoms or his social and industrial functioning. On VA psychiatric examination in March 1997, the veteran complained of feeling anxious, having trouble sleeping, and hearing voices, but stated that these symptoms had decreased significantly since he began taking medication. He was currently unemployed but had worked for 27 years in a Safeway warehouse. He had been divorced for approximately 22 years. The examiner noted a history of VA treatment for alcohol abuse beginning in April 1996. The veteran stated that he lived with his older daughter, saw other members of his family on a daily basis, and visited with friends in his neighborhood. He attended weekly group therapy for alcohol treatment and was taking medication. Mental status examination showed the veteran to be friendly and cooperative. He was alert and oriented in all spheres and his speech was fluent and productive. His thought processes were intact. He denied having any visual hallucinations, but described having auditory hallucinations of hearing voices on a weekly basis. He did not report any clearly delusional material. He stated that he ruminated more about Vietnam since he stopped working. The examiner found that his attention was impaired and that his short term memory was severely impaired. Other tasks requiring memorization were not accurately performed and abstract reasoning was impaired. Calculations and social judgment were within normal limits. His mood was described as moderately anxious and his affect was congruent with his mood. He denied suicidal or homicidal ideation, although he said he had in the past wondered what benefit there was in being alive. The examiner described the symptoms of PTSD as intrusive memories of handling bodies, avoidance of friends and activities that stimulate memories of his war-time experiences, difficulty sleeping, and hypervigilance. The examiner provided diagnoses of alcohol dependence, in sustained partial remission; psychosis, not otherwise specified; PTSD, chronic; and a cognitive disorder not otherwise specified. The examiner assigned a global assessment of functioning (GAF) score of 51 and characterized the severity of the reported PTSD symptoms as moderate. The examiner stated that the veteran's impaired attention could result from anxiety, but that the severe deficit in short- term memory and abstract reasoning were probably due to a cognitive disorder resulting from long-term alcohol abuse. The examiner stated that alcohol dependence was the cause of his employment termination, and that alcohol dependence was the cause of 50 percent of his social and industrial problems. The examiner also found that the PTSD symptoms were responsible for approximately 25 percent of his social and industrial deficit, and that his cognitive impairments and auditory hallucinations were the cause of the remaining 25 percent of his social and industrial impairment. Records from the Social Security Administration show that the veteran was determined to be disabled due to anxiety related disorders, paranoid schizophrenia, and other functional psychotic disorders effective April 15, 1996. A private psychiatric examination conducted in August 1997 in conjunction with the veteran's claim for Social Security disability benefits resulted in diagnoses of a history of PTSD and psychosis not otherwise specified, and a GAF score of 60 was assigned. The examiner stated that the veteran's ability to understand, carry out, and remember simple instructions and perform simple, repetitive work was intact, but that, based on his history, he would have difficulty relating to supervisors, coworkers, and the public. The examiner also stated that the veteran's ability to deal with changes in a routine work setting and to deal with the every day stresses of an eight-hour work day were mildly impaired. In a January 1998 hearing the veteran testified that after service he worked at a meat cutting plant from 1968 to 1995 and that he got into fights with other employees and cursed his supervisors. He also testified that he had been married for two years after he returned from Vietnam, and that he had no long term relationships following his marriage. He stated that he liked to be by himself. He further testified that he sees his primary physician every four to six weeks and that he was told that the severity of his PTSD goes up and down. He stated that the smell of burning clothing reminded him of the bodies he handled when he was in Vietnam. He also stated that he had two daughters, with whom he had an ongoing relationship and whom he saw often. On VA psychiatric examination in May 1998, the veteran reported working in a meat cutting plant for 27 years until September 1995, when the plant closed. He stated that after getting help for alcohol dependence he considered going back to work but was advised by his psychiatrist to go on disability. Thereafter, he sought and received Social Security disability benefits. He reported that he lived with his daughter and that he had always been reluctant to live alone because he hated being socially isolated. He stated that he enjoyed going to movies and sporting events and watching television, and that he had friends that he visited on a regular basis. He also stated that he occasionally dated women over the years since his divorce, but he denied any serious relationships. Mental status examination revealed that his mood seemed relaxed and cooperative. His affect was appropriate. His speech was at a normal rate, although he struggled with occasional word-finding problems and confused a couple of words. He did not appear to have a formal thought disorder and reported no obvious delusional material. He stated that he continued to experience auditory hallucinations two to three times a month, but that this had much improved since starting on medication. He reported that the voices were not disturbing, but that he was troubled by experiencing them. He said that he had probably heard voices for about eight to nine years. He denied visual hallucinations, but reported occasional experiences with illusions. He denied current or past history of suicidal or homicidal ideations. He stated that his major source of stress was money because his income had decreased since he stopped working. He reported that his sleep and appetite were good since starting on medication, and that he had nightmares once or twice a month. Sometimes he woke up punching a wall. He reported that these nightmares were always about having arguments with people who were saying things that bothered him. When asked specifically if he ever thought about Vietnam, he stated that he did when he saw films about war. He said he had tried to watch war movies on television, but could not. He also stated that he avoided Army buddies in his hometown who liked to talk about Vietnam. He reported having difficulty in crowded places, but that he could tolerate watching baseball games and going to theaters. He stated that he did not handle stress well. The examiner noted that the veteran scored within normal limits on the Orientation, Language, Calculation, and Judgment psychological sub-tests. He showed some mild impairment in attention and memory and moderate to severe impairment in construction and similarities. The examiner found that he had a stable relationship with his children and some friends. The examiner provided diagnoses of alcohol dependence, in sustained full remission; psychosis not otherwise specified versus alcohol-induced psychotic disorder with hallucinations; PTSD, chronic; and a cognitive disorder not otherwise specified. The examiner assigned a GAF score of 55. The examiner indicated that the veteran's history of alcohol dependence had had the greatest negative impact on his social and occupational functioning to date. The examiner stated that it was possible that his problems with memory, concentration, abstract-thinking, visual-spatial skills, and hallucinations were due to a psychotic disorder, but that it was quite likely that the impairments were secondary to brain changes which occurred after a 30 year history of heavy alcohol use. The examiner described the veteran's PTSD symptoms as relatively mild and stated that his current medications were having a positive effect on his mood and psychotic symptoms. The examiner also stated that the veteran's PTSD symptoms had remained mild to moderate most of his life. On the subject of vocational adjustment, the examiner stated that alcohol abuse was the veteran's primary problem with work performance, and that PTSD did not appear to be a major impediment to the veteran's continuing to work. The examiner also stated that his cognitive problems could cause difficulties if he was required to learn new, complex skills. Analysis Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155, 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The veteran's PTSD is currently rated as 30 percent disabling under Diagnostic Code 9411. Effective November 7, 1996, during the pendency of this appeal, VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4, was amended with regard to rating mental disabilities. Schedule for Rating Disabilities; Mental Disorders, 61 Fed. Reg. 52695 (1996) (codified at 38 C.F.R. §§ 4.125-4.130). Because the veteran's claim was filed before the regulatory change occurred, he is entitled to application of the version more favorable to him. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). In the October 1997 statement of the case the RO provided the veteran the original and revised regulations pertaining to mental disorders and considered both versions of the regulations in determining that he was not entitled to a rating in excess of 30 percent. The veteran was provided the opportunity to present evidence and arguments in response. The Board finds that it may proceed with a decision on the merits of the veteran's claim, with consideration of the original and revised regulations, without prejudice to the veteran. See Bernard v Brown, 4 Vet. App. 384 (1993). Following the November 1996 amendments to the Rating Schedule, a 30 percent evaluation is warranted when there is occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, 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 evaluation is warranted when there is 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or inability to establish and maintain effective relationships. A 100 percent rating requires total impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). Prior to the November 1996 amendment, the Rating Schedule provided a 30 percent evaluation for PTSD when the ability to establish or maintain effective and wholesome relationships with people was definitely impaired, and when the psychoneurotic symptoms resulted in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. A 50 percent evaluation was warranted where the ability to establish or maintain effective or favorable relationships with people was considerably impaired and by reason of the psychoneurotic symptoms, the reliability, flexibility and efficiency levels were so reduced as to result in considerable industrial impairment. A 70 percent evaluation was warranted when the ability to establish or maintain effective or favorable relationships with people was severely impaired and the psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. A 100 percent evaluation was assigned when the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community; and when 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 a profound retreat from mature behavior; and there was a demonstrable inability to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). In Hood v. Brown, 4 Vet. App. 301 (1993), the United States Court of Appeals for Veterans Claims (Court) (formerly known as the United States Court of Veterans Appeal) stated that the term "definite" in 38 C.F.R. § 4.132 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 or bases" for its decision 38 U.S.C.A. § 7104(d)(1). 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." VAOPGCPREC. 9-93 (O.G.C. Prec. 9-93). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c). When evaluating a mental disorder, consideration should be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating shall be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. The evaluation of the level of disability is to be based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As noted above, service connection was established for PTSD in May 1997; a 30 percent rating was assigned, effective July 15, 1996, the first date the evidence shows a diagnosis of PTSD. 38 C.F.R. § 3.400. As the veteran takes issue with the initial rating assigned when service connection was granted, the Board must evaluate the disability based on all the evidence of record; it may assign separate ratings for separate periods of time based on facts found; a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). As an initial matter the Board notes the contentions raised by the veteran's representative that chronic alcoholism, which has had a major impact on the veteran's social and industrial functioning, be considered in evaluating the severity of PTSD. In determining the proper evaluation for a service-connected disability, manifestations not resulting from the service connected disability cannot be used in establishing the evaluation. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (excluding the degree of impairment attributed to a non service-connected psychiatric disorder provides a plausible basis for denying an increased rating, if there is medical evidence documenting the effect of the non service-connected disorder); 38 C.F.R. § 4.14. As previously stated, the representative's claim for service connection for chronic alcoholism, as secondary to PTSD, has been referred to the RO for appropriate action. The Board further notes that as a matter of law VA disability compensation cannot be paid for alcohol and drug abuse, including alcohol abuse that is secondary to a service- connected disability. 38 U.S.C.A. §§ 1110, 1137; Barela v. West, 11 Vet. App. 280 (1998); VAOPGCPREC 07-99. The Board finds, therefore, that the psychiatric symptoms attributable to chronic alcoholism, or any other non service-connected disability, cannot be considered in determining the appropriate disability rating for PTSD. After evaluating the evidence, the Board concludes that the criteria for a disability rating in excess of 30 percent for PTSD are not met by considering the original and the revised rating criteria. The symptoms of PTSD include intrusive memories of handling bodies, nightmares once or twice a month, avoidance of friends and activities that stimulate Vietnam memories, difficulty sleeping, and hypervigilance. According to the rating criteria in effect prior to November 1996, a disability rating in excess of 30 percent required evidence showing that the ability to establish or maintain effective or favorable relationships with people was considerably impaired and that the veteran's reliability, flexibility and efficiency levels were so reduced as to result in considerable industrial impairment. 38 C.F.R. § 4.132, Diagnostic Code 9411. While the evidence shows that the veteran continues to experience PTSD symptomatology, the evidence does not show that his PTSD symptoms, rather than his other psychiatric disabilities, result in considerable social and industrial impairment. The VA examiner in March 1997 quantified the veteran's total social and industrial functioning due to his psychiatric symptoms with a GAF score of 51, which is defined as moderate difficulty in social, occupational, or school functioning. Carpenter, 8 Vet. App. at 242. Although the examiner also described the veteran's PTSD symptoms as moderate, he also stated that only 25 percent of his moderate social and industrial impairment was due to PTSD; the remaining impairment was due to non service-connected disabilities. In May 1998 the examiner evaluated all of the veteran's psychiatric symptoms, based on the service- connected PTSD and non service-connected disorders, as a GAF score of 55, which is also indicative of moderate impairment. The examiner described the symptoms attributable to PTSD as relatively mild. He also stated that the veteran's PTSD symptoms did not cause a major impediment to his employment. The Social Security examiner described his psychiatric symptoms as mild and assigned a GAF score of 60, which is also indicative of moderate impairment. The evidence shows that the veteran participates in social functions, including dating and visiting with friends, and that he enjoys going to the movies and to sporting events. He lives with one of his adult daughters and maintains an ongoing relationship with both daughters. Although he is no longer employed, the evidence indicates that his employment was terminated due to his chronic alcoholism, not the symptoms of PTSD. A "definite" impairment in social and industrial functioning is defined as an impairment that is "more than moderate but less than rather large." VAOPGCPREC. 9-93 (O.G.C. Prec. 9- 93). Because the veteran's PTSD symptoms have been described as no more than moderate, the Board finds that the symptoms of PTSD do not result in a social and industrial impairment that is more than definite, and that the criteria for a disability rating in excess of 30 percent are not met based on the original rating criteria. According to the rating criteria that became effective in November 1996, a rating in excess of 30 percent is warranted if there is 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. The evidence does not show that the veteran has a flattened affect or disturbances of motivation or mood, that he has demonstrated circumstantial, circumlocutory, or stereotyped speech, or that he has any panic attacks. Although he may have difficulty in understanding complex commands and his abstract thinking and memory are impaired, the examiner attributed these deficits to a possible psychotic disorder or, more likely, the long term affects of alcoholism. In addition, the examiner stated that alcohol abuse, not PTSD, had had the biggest impact on the veteran's social and industrial functioning, including maintaining effective work and social relationships, and that his PTSD symptoms had remained mild to moderate most of his life. Based on this evidence, the Board finds that the criteria for a disability rating in excess of 30 percent based on the revised rating criteria are not met. The Board notes that the veteran has been found to be totally disabled for the purpose of awarding Social Security disability benefits. The documents received from the Social Security Administration indicate, however, that that finding was based on a combination of the psychiatric symptoms attributable to an anxiety disorder, presumably PTSD, and a non service-connected psychotic disorder. The evidence does not indicate that the veteran is totally disabled based solely on his service-connected disability, or that the disability warrants a rating in excess of 30 percent. In reaching this conclusion, the Board has given due consideration to the provisions of 38 C.F.R. § 4.7 and the doctrine of reasonable doubt. The evidence of record does not show, however, that the manifestations of the veteran's service-connected psychiatric disability more closely approximate those required for a higher rating at any point in time since his claim was initiated. Fenderson, 12 Vet. App. at 119. For the reasons shown above, the Board has determined that the preponderance of the evidence is against the claim of entitlement to a disability rating in excess of 30 percent for PTSD. ORDER The appeal to establish entitlement to a disability rating in excess of 30 percent for PTSD is denied. N. W. Fabian Acting Member, Board of Veterans' Appeals