Citation Nr: 0000105 Decision Date: 01/04/00 Archive Date: 12/28/01 DOCKET NO. 98-00 541A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased evaluation for post-traumatic stress disorder, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The appellant served on active duty from December 1967 to August 1969. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 1998 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO continued the 10 percent disability evaluation for post-traumatic stress disorder. In a December 1998 rating decision, the RO granted a 30 percent evaluation for post-traumatic stress disorder. Review of the record reveals that the RO did not expressly consider referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The United States Court of Appeals for Veterans Claims (the Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Although the RO did not expressly consider 38 C.F.R. § 3.321(b)(1), the Board has reviewed the record with these mandates in mind and finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). FINDING OF FACT Post-traumatic stress disorder is currently manifested by having few friends, angry outbursts, panic attacks, flashbacks, nightmares, and difficulty sleeping. CONCLUSION OF LAW Post-traumatic stress disorder is 50 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim for an increased evaluation for post-traumatic stress disorder is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). That is, his assertion that his service-connected disability has worsened raises a plausible claim. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The appellant has been recently examined and his medical records have been obtained. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). All relevant facts on this issue have been properly developed and the duty to assist has been met. 38 U.S.C.A. § 5107(a). Service connection for post-traumatic stress disorder was granted by means of a January 1996 Board decision. In a January 1996 rating decision, the RO effectuated the Board's decision and assigned a 10 percent disability evaluation for post-traumatic stress disorder. In a December 1998 rating decision, the RO granted a 30 percent evaluation. The appellant has stated that he seeks an evaluation in excess of 30 percent. In a June 1997 VA outpatient treatment report, the VA examiner stated that the appellant reported that he was under pressure to stay busy all the time. The appellant stated that he resented his parents because both of them were alcoholics. He reported recent difficulty with sexual functioning. The VA examiner noted that the appellant had chronic anxiety and depression. In August 1997, the appellant reported stress from financial problems and sexual dysfunction. He stated that he and his girlfriend were still seeing each other and that they were having conflict on and off. In April 1998, the VA examiner stated that the appellant was full of stress and conflict. The appellant complained of his medical and financial problems. The VA examiner stated that the appellant's main problems were his depression and acceptance of his chronic illness. The VA examiner noted that the appellant denied homicidal and suicidal ideations. In a letter, dated May 1998, an instructor, Mr. Mitchell Higginbotham, stated that the appellant had withdrawn from a class he was teaching, because the appellant had reported not being able to follow along in class. The appellant submitted written statements attesting to the worsening of his post-traumatic stress disorder symptoms. He stated that the symptoms brought on the divorce of one of his wives. He stated that he wept at his father's funeral because he believed that his post-traumatic stress disorder symptoms had come to a head. The appellant reported incidences where he was easily angered. In a May 1998 VA outpatient treatment report, the VA examiner described the appellant as dispirited and angry. He stated that the appellant was isolative except for his on-and-off girlfriend. The VA examiner noted that the appellant was estranged from his family. The appellant reported sleeping poorly, drinking too much, and suffering nightmares. The VA examiner stated that the appellant disliked talking about his military trauma and noted that the appellant had intense survivor guilt. In June 1998, The VA examiner noted that he had discussed with the appellant moving through the stages of grief towards acceptance of several issues, including the relationship he had with his parents. The appellant reported sleeping poorly and trying to avoid medication. The VA examiner entered a diagnosis of post-traumatic stress disorder, chronic, and a Global Assessment of Functioning (GAF) score of 41. The appellant had an RO hearing in August 1998. He stated that his post-traumatic stress disorder was getting worse. He stated that he would get angry with people more easily and was more paranoid around others. The appellant testified that he did not like to be around crowds and that he was having more flashbacks. He stated that he felt ashamed about what he and the other Vietnam veterans had done during the war. He stated that he enjoyed work but that it was the outside problems with which he was having trouble. The appellant stated that he felt suicidal at times and that he had a rifle at home and that he was afraid of using it on himself. He stated that he drank too much and thought he was trying to drown his sorrows. He stated that he had been married three times. The appellant testified that he kept mostly to himself. He stated that he was being treated at VA and that they were good to him there. The appellant underwent a VA psychiatric evaluation in November 1998. The VA examiner stated that the appellant was casually groomed and dressed and appeared mildly to moderately depressed. The appellant reported that it was difficult for him to talk about his war experiences, but that he did watch war movies about Vietnam. He reported intrusive thoughts on a daily basis and that they were more severe. He stated that flashbacks occurred about twice per week, and that those were more severe. The appellant reported that he cried about once a week. He stated that his sleep was poor even with sleeping pills. The appellant stated that he wanted a physical relationship but that he did not have the desire to seek a new relationship. He stated that he would see a friend of his three times per week. He reported suicidal thoughts about once every two weeks, but denied brooding on death. The VA examiner stated that the appellant was intelligent and was competent. He stated that there were no psychotic indices and that the appellant was working. The diagnosis was post-traumatic stress disorder and dysthymic disorder. The VA examiner assigned a GAF score of 55. Service-connected disabilities are rated in accordance with a schedule of ratings that are based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1999). Under 38 C.F.R. Part 4, Diagnostic Code 9411 (1999), which addresses post-traumatic stress disorder, the criteria are as follows: Total occupational and social 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 (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name - 100 percent disabling. Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships - 70 percent disabling. Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships - 50 percent disabling. Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) - 30 percent disabling. The Board notes that the appellant entered a claim to the effect that the service-connected post-traumatic stress disorder was more severe than evaluated. To that extent, he was correct, and the evaluation was increased from 10 percent to 30 percent in a December 1998 rating decision. The appellant has stated that he wants an evaluation in excess of 30 percent. After having reviewed the evidence, the Board concludes that the evidence supports a 50 percent evaluation for post- traumatic stress disorder. The appellant has been determined to have chronic anxiety related to his post-traumatic stress disorder symptoms. He has difficulty getting along with others and does not like to be in crowds. He is easily angered and lashes out at people over small issues. He reported having a girlfriend whom he saw on and off and that he sees a friend three times per week. In April 1998, he denied suicidal and homicidal ideations, but stated at his August 1998 hearing and November 1998 VA psychiatric evaluation that he does think about suicide. He described his post-traumatic stress disorder symptoms coming to a head at his father's funeral, where he wept like a baby. He is estranged from his family. He has described liking his current job, but that he has difficulty getting along with others at work because he would speak his mind openly. He has consistently reported difficulty sleeping. The Board finds that such symptoms are indicative of a 50 percent evaluation. This determination is supported by the VA physician's finding in the November 1998 VA psychiatric evaluation that the GAF score was 55. Although the GAF score does not fit neatly into the rating criteria, it is evidence, which the Court has noted the importance of and defined the terms of the GAF score. Carpenter v. Brown, 8 Vet. App. 240 (1995). The GAF score 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 32 (4th ed. 1994). A GAF score of 55 is defined as "Moderate symptoms (e.g. flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g. few friends, conflicts with peers or co-workers). The Board finds that such assignment of a GAF score of 55 is indicative of a 50 percent evaluation. An evaluation in excess of 50 percent, however, is not warranted. The evidence establishes that the appellant does not have obsessional rituals which interfere with routine activities. He does not have intermittently illogical speech. No medical professional has stated that the appellant neglects his personal hygiene. He was described by the VA examiner in November 1998 as being casually dressed. The appellant has been able to hold onto his current job and likes his job. He has not been described as having inappropriate behavior, delusions, hallucinations, or being a danger to himself or others. Although the appellant has stated that he has isolated himself from people, he has stated that he sees a friend three times per week. He has been described as intelligent and competent. Although he has reported suicidal ideations, he has stated that he does not brood over death. Although a VA examiner entered a GAF score of 41, such does not establish a basis for an evaluation in excess of 50 percent as the preponderance of the evidence is against a finding that the appellant's post-traumatic stress disorder is more than 50 percent disabling. The appellant is competent to report his symptoms. To the extent that he stated that he was worse than evaluated, it was true in that the RO granted a 30 percent evaluation in a December 1998 decision, and the Board has granted a 50 percent evaluation in this decision. However, to the extent that the appellant has implied that his post-traumatic stress disorder warrants an evaluation in excess of 50 percent, the medical findings do not support his assertion. The evidence has not shown that he is virtually isolated in the community. The appellant has been able to hold a job, and he is not a danger to himself or others. He has not been reported as disoriented. The appellant has reported weekly panic attacks and no more. The Board finds that the findings made by medical professionals during evaluations of the appellant have more probative weight than the appellant's statements and testimony, even if sworn, in support of a claim for monetary benefits. Taking the appellant's contentions into account and the medical findings, an evaluation in excess of 50 percent is not warranted. To this extent, the preponderance of the evidence is against his claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 1991). ORDER A 50 percent evaluation for post-traumatic stress disorder is granted, subject to the controlling regulations applicable to the payment of monetary benefits. JEFF MARTIN Member, Board of Veterans' Appeals