Citation Nr: 0007712 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 97-27 133A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an evaluation greater than 50 percent for post-traumatic stress disorder (PTSD). Whether the veteran has submitted a timely appeal of the denial of a total rating for individual unemployability due to service connected disabilities. REPRESENTATION Appellant represented by: Arizona Veterans Service Commission ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The veteran had active service from January 1969 to August 1970. His awards and decorations include the Vietnam Service Medal, and the Combat Infantryman's Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Phoenix, Arizona, regional office (RO) of the Department of Veterans Affairs (VA). The veteran was notified by a December 1999 letter that the Board intended to address the issue of the timeliness of his appeal of the denial of entitlement to a total rating based on individual unemployability. The letter indicated that he and his representative would be provided with 60 days in which to submit any additional evidence or argument for this issue. No additional evidence or argument was received during the 60 day period. Therefore, the Board will proceed with consideration of this issue. FINDINGS OF FACT 1. The evidence demonstrates that the veteran has no more than 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, and difficulty in establishing and maintaining effective work and social relationships. 2. The veteran did not submit a Substantive Appeal for the issue of entitlement to a total rating for individual unemployability due to service connected disabilities within one year of the September 17, 1997, notice of the original decision, or within 60 days after the date of the Statement of the Case. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.130 Code 9411 (1999). 2. The veteran has not submitted a timely appeal for the issue of entitlement to a total rating based on individual unemployability due to service connected disabilities. 38 C.F.R. §§ 20.200, 20.201, 20.302(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Evaluation The veteran contends that the 50 percent evaluation assigned to his service connected PTSD is inadequate to reflect its current level of severity. He argues that his symptomatology makes it difficult to function, and results in more occupational impairment than is reflected by the 50 percent evaluation. Initially, the Board finds that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a); that is, a plausible claim has been presented. Murphy v. Derwinski, 1 Vet. App. 78 (1990). An allegation of increased disability is sufficient to establish a well- grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is also satisfied that all relevant facts have been properly developed to their full extent and that the VA has met its duty to assist. White v. Derwinski, 1 Vet. App. 519 (1991); Godwin v. Derwinski, 1 Vet. App. 419 (1991). The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). The record shows that entitlement to service connection for PTSD was established in an October 1996 rating decision. A 50 percent evaluation was assigned for this disability. In April 1997, the RO received the veteran's claim for an increased rating for PTSD. A July 1997 rating decision assigned a temporary total evaluation due to hospitalization effective from March 5, 1997. However, the 50 percent evaluation was resumed following the veteran's discharge from the hospital, effective July 1, 1997, and currently remains in effect. PTSD is evaluated under the General Rating Formula for Mental Disorders. This formula states that a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. A 70 percent evaluation is warranted for 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 that is 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), and an inability to establish and maintain effective relationships. A 50 percent evaluation is warranted 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, and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). The evidence for consideration includes the report of the veteran's hospitalization from March 1997 to June 1997. At the time of the veteran's admission, he complained of nightmares, disrupted sleep, depression, and anger. He also reported a low frustration tolerance and episodic severe anxiety. Other reported symptoms included a history of mood swings with hypomanic-like episodes. He reported moderate combat exposure in Vietnam, and was bothered by images related to his experiences in the war zone. During the veteran's hospitalization, he participated in a full program for treatment of PTSD, including medical and psychiatric assessments and treatments along with participation in a range of therapeutic and psycho-educational activities. He also participated in a trauma-focus group in which he worked on reducing isolation, stabilizing his mood disorder, and becoming more cognizant of his demeanor and the effect of his demeanor on others. At the end of his hospitalization, the veteran was discharged to home. Both the veteran and observers agreed that he had made progress during his hospitalization, yet he remained tense and moderately depressed. He was concerned that he would be able to maintain the stability of his mood and his sobriety. His industrial adaptability seemed limited by his psychosocial arousal symptoms, and the impact they had on his temper management, migraines, and interpersonal pacing. The discharge diagnoses included PTSD, major depression, panic disorder, and substance abuse in remission. The score on the Global Assessment of Functioning (GAF) scale was 50. VA treatment records dated from June 1997 to November 1997 are contained in the claims folder, and show that the veteran was followed for PTSD after the end of his hospitalization. June 1997 records indicate that the veteran was aware he was improving. He was noted to be isolating himself at one point, but he began volunteering to counter this trend. The veteran was also considering working with vocational rehabilitation to return to college. July 1997 records state that the veteran felt estranged from his parents and siblings, but continued to talk about returning to college through vocational rehabilitation. Records from August 1997 show that a visit with the veteran's family went well, and that he was going back to college. Other August 1997 records note that the veteran had returned to school, and was working 20 hours a week. September 1997 records describe headaches secondary to stress, but the veteran was not as depressed, and was able to relate to people. Records from October 1997 show that the veteran felt very depressed, and had been experiencing problems for a week after attempting to contact his children. School was going well, and the veteran had A's in three classes. Other records from October 1997 and November 1997 note that the veteran was missing some of his appointments, and was not as committed to AA as he had been in the past. He was alert and oriented, with no suicidal or homicidal ideations, and no hallucinations or delusions. The veteran was afforded a VA examination in November 1997. The claims folder was present and reviewed by the examiner. The veteran stated he had experienced an increase in symptoms over the past six months. He reported some nightmares, including reliving an episode in which he shot a Vietnamese girl. He could be nightmare free for two or three months, then have them several times in a week. The veteran avoided stimuli that reminded him of Vietnam, but he denied auditory hallucinations and other delusions. There was a recurrence of depressive symptoms, including tearfulness, isolating himself, sleep trouble, problems with concentration, and low energy. He had suicidal thoughts on rare occasions. Being with his nine year old daughter gave him pleasure. He said he had been clean and sober for 25 months. He attended AA meetings. The veteran attended school, and went to class four days a week. He was also participating in a work study program sponsored by the VA in a vocational rehabilitation program, but his attendance had been spotty. On mental status examination, the veteran was pleasant but anxious. His mood was depressed, particularly when talking about Vietnam, and his affect was slightly restricted. There was no gross cognitive impairment. The veteran was oriented, and his thought processes were logical. He did not report any auditory or visual hallucinations, and there was no indication of paranoia. The diagnoses included PTSD, major depression, recurrent, moderately severe, and polysubstance abuse, presently in remission. The GAF score was presently 52, and was estimated at 65 during the past year. Additional VA treatment records from December 1997 show that the veteran became very depressed around the holidays. January 1998 records also noted that the veteran had problems around the holiday, and that he had been isolating. However, he had attended an AA meeting, and signed up for additional school. The veteran also reported that this was the longest he had ever been clean and sober. March 1998 records show that the veteran had not been sleeping or exercising. He had also been missing his group therapy, but planned to return. The veteran admitted to using cocaine in April 1998, and to having had a few beers. He was sleeping terribly, and feeling as if he did not like himself. The veteran said he was afraid of things going well. He had no interests, and no energy. There were no suicidal or homicidal ideations. Other April 1998 records note that the veteran had recently been kicked out of vocational rehabilitation, and that he was threatened with being kicked out of the PTSD program if he continued to miss his sessions and use cocaine. June 1998 group therapist records indicate that the veteran was receiving treatment for both PTSD and depression. A letter from a VA staff psychiatrist and a clinical social worker who was the director of the Mental Health Program was received in June 1998. The veteran was noted to have undergone treatment with the VA PTSD program since January 1996. His PTSD contributed to serious impairment of his adult role functioning. He had tried to work in a compensated work therapy job and to attend college, but in both cases he had started out enthused and interested, but lost his concentration and became depressed and anxious. The veteran's estrangement from others, social avoidance, lack of trust, and depression had resulted in a number of lost relationships. He lived alone and had few friends. The veteran also reported intrusive thoughts of Vietnam, social isolation and avoidance, depression, and anxiety, and was only able to sleep from three to four hours each night. He also had difficulties with concentration, short term memory, and anger control. The veteran experienced intense psychological distress when exposed to trigger events of Vietnam. Continued disability could be expected. In their opinion, the veteran was disabled by PTSD, and would be unable to work in the future. The veteran underwent a VA psychiatric examination in March 1999. The claims folder was available and reviewed by the examiner. The veteran believed that there had been no change in his psychiatric condition since November 1997. He lived by himself, and said that his neighbors liked him. He had become acquainted with visitors and had been friendly with them. The veteran had also attended some baseball games with friends, and enjoyed talking to the other fans about the game. The veteran said that he walked every day, and that he would read in the evenings. He stated that he had a quick temper, and had gotten into anywhere from four to six fights in the past six months. The veteran had used cocaine briefly in March 1998, and had done some beer drinking. He described some depressive symptoms, and said he could sleep only every other night. The veteran had experienced suicidal ideations on at least two occasions in the past few months. On mental status examination, the veteran was oriented, and his memory was excellent. There was no indication of any cognitive impairment, and it was easy to achieve a rapport with him. The veteran did not show any indication of an underlying psychotic process. His affect was broad. He had no delusional systems, and his mood was somewhat depressed. The impression was PTSD, and major depression, recurrent, in partial remission. The GAF was as high as 65 in the past year, and was currently a 65. The Board notes that the veteran's GAF scores have ranged from a low of 40 upon admission to the hospital in March 1997, with a 50 at discharge in June 1997, to a high of 65, with 65 the most recent. GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) [hereinafter DSM-IV]. A 61 to 70 rating indicates "mild symptoms or some difficulty in social, occupational, or school functioning." A score of 51 to 60 indicates moderate symptoms, or moderate difficulty in social, occupational or school functioning, and a score of 41 to 50 represents serious symptoms such as suicidal ideation and severe obsessional rituals, or any serious impairment in social, occupational, or school functioning such as an inability to keep a job. (Ibid.). After careful review of the veteran's contentions and the evidence of record, the Board is unable to find that an evaluation in excess of 50 percent is merited for the veteran's PTSD. The veteran was seriously impaired requiring hospitalization from March 1997 to June 1997 and was assigned a temporary total rating during that period. VA treatment records from June 1997 to November 1997 show that the veteran returned to school for a semester, began volunteer work to reduce his isolation, and visited his family. He did not have any suicidal or homicidal ideations during this period. The November 1997 VA examination noted the veteran's belief that his symptoms had increased over the past six months, and that he was experiencing nightmares, suicidal thoughts, a recurrence of depressive symptoms, isolation, and problems with sleep. However, the GAF score assigned at this examination was 52, and was estimated to have been as high as 65 in the past year. The March 1999 VA examination also included a GAF score of 65. These are the most recent scores, and they do not comport with an evaluation in excess of 50 percent. The Board notes that the June 1998 letter from a VA staff psychiatrist and social worker opined that the veteran was unable to work. However, the symptomatology attributable to the PTSD did not include obsessional rituals which interfere with routine activities, speech that is 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), and an inability to establish and maintain effective relationships. Furthermore, the VA examiner in November 1997 and March 1999 reviewed the veteran's entire medical history in his claims folder prior to rendering his opinions and GAF scores. Therefore, the Board finds that they are more probative than the June 1998 letter. The veteran's overall disability picture more nearly resembles that of occupational and social impairment with reduced reliability and productivity, which warrants continuation of the 50 percent evaluation currently in effect. 38 C.F.R. §§ 4.7, 4.130, Code 9411 (1999). II. Timeliness The veteran contends that he is entitled to a total rating for individual unemployability due to service connected disabilities. He argues that this issue should be included in his current appeal. 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. 38 C.F.R. § 20.200. A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a Notice of Disagreement. While special wording is not required, the Notice of Disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. If the agency of original jurisdiction gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. For example, if service connection was denied for two disabilities and the claimant wishes to appeal the denial of service connection with respect to only one of the disabilities, the Notice of Disagreement must make that clear. 38 C.F.R. § 20.201. A Substantive Appeal consists of a properly completed VA Form 9, ``Appeal to Board of Veterans' Appeals,'' or correspondence containing the necessary information. If the Statement of the Case and any prior Supplemental Statements of the Case addressed several issues, the Substantive Appeal must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed. The Substantive Appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. To the extent feasible, the argument should be related to specific items in the Statement of the Case and any prior Supplemental Statements of the Case. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination, or determinations, being appealed. The Board will not presume that an appellant agrees with any statement of fact contained in a Statement of the Case or a Supplemental Statement of the Case which is not specifically contested. Proper completion and filing of a Substantive Appeal are the last actions the appellant needs to take to perfect an appeal. 38 C.F.R. § 20.202. Except in the case of simultaneously contested claims, a Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the Statement of the Case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. The date of mailing of the Statement of the Case will be presumed to be the same as the date of the Statement of the Case and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302(b). The issue of entitlement to a total rating for individual unemployability due to service connected disabilities was denied in the same September 1997 rating decision that denied an evaluation greater than 50 percent for PTSD. The veteran was notified of this decision in a letter dated September 17, 1997. He submitted a Notice of Disagreement with the 50 percent evaluation in a statement received September 26, 1997. However, this Notice of Disagreement did not express an intent to appeal the denial of a total rating for individual unemployability. The veteran submitted a VA Form 9, Appeal to the Board of Veterans' Appeals in August 1998, and stated that the issues to be considered were the 50 percent evaluation for PTSD, and entitlement to individual unemployability. As this was the first statement from the veteran that expressed a desire to appeal the issue of entitlement to individual unemployability, a Statement of the Case for this issue was sent to the veteran on September 3, 1998. The cover letter notified the veteran that he must file a formal appeal to complete the appeal of this issue, and that it must be received within one year of the original notification of the decision, or within 60 days of the Statement of the Case. The earliest communication from the veteran that could be interpreted as a Substantive Appeal was received November 30, 1998. This was more than one year after the September 17, 1997, notice of the original decision, and more than 60 days after the date of the Statement of the Case. Therefore, the issue of entitlement to a total rating based on individual unemployability due to service connected disabilities is not before the Board. 38 C.F.R. §§ 20.200, 20.201, 20.302(b) (1999). Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. ORDER Entitlement to an evaluation greater than 50 percent for PTSD is denied. The veteran's claim for a total rating for individual unemployability due to service connected disabilities is dismissed. THOMAS J. DANNAHER Member, Board of Veterans' Appeals