Citation Nr: 0006888 Decision Date: 03/14/00 Archive Date: 03/17/00 DOCKET NO. 96-37 802 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to an increased evaluation for post-traumatic stress disorder (PTSD), currently rated as 70 percent disabling. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD J. Henriquez, Associate Counsel INTRODUCTION The veteran had active duty from July 1966 to July 1969. This matter originally came before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 1995 rating action in which the RO increased a 10 percent evaluation for the veteran's service-connected PTSD to a 50 percent evaluation. In July 1998, the Board remanded the issue to the RO for further development. In a November 1999 rating action, the RO increased the evaluation for PTSD to 70 percent disabling. An evaluation in excess of 70 percent for the veteran's service-connected PTSD is now before the Board for appellate consideration. The veteran was afforded a hearing before an RO hearing officer in October 1996 and a hearing before the undersigned Acting Member of the Board at the RO in November 1997. FINDING OF FACT The evidence shows that the veteran's symptoms of PTSD demonstrate he has trouble adapting to stressful situations, and have left him demonstrably unable to obtain or retain employment; the veteran's PTSD is productive of total occupational and social impairment. CONCLUSION OF LAW The schedular criteria for a 100 percent evaluation for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.130, 4.132, Diagnostic Code 9411 (1996, 1998). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends, in effect, that his PTSD has worsened and that it should receive a higher evaluation. In particular, he states that he is unable to work as a result of his PTSD. As noted, an increased rating of 70 percent was granted by rating action of November 1999. The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). The Court has held that an allegation that a service-connected disability has increased in severity is sufficient to establish an increased rating claim as well grounded. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Further, after examining the record, the Board is also satisfied that all relevant facts have been properly developed in regard to the veteran's claim and that no further assistance to the veteran is required to comply with the duty to assist, as mandated by 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke v. Derwinski, 1 Vet. App. 90, 91 (1990). In this regard, the current condition of the veteran's PTSD has been assessed by a January 1999 VA medical examination, which the Board finds to be adequate concerning the issue on appeal. Finally, there is no indication that there are other relevant records available that would support the veteran's claim. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). When there is a question as to which of two evaluations shall be applied, 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. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. See 38 C.F.R. § 4.3. The veteran was afforded a VA psychiatric examination in May 1995. The veteran reported that he had not worked since October 1993 and that he quit his job because he was shaking and crying at work. Subjective complaints included feelings of hopeless, lack of energy, paranoia, social isolation, suicidal thoughts, difficulty sleeping, and 2 or 3 nightmares a week about Vietnam. Upon mental status examination, the veteran was alert, oriented, and cooperative. His mood was anxious and dysphoric. He appeared tense and showed some memory and concentration problems. He did not smile or laugh during the examination and expressed feelings of hopelessness and despair. His eye contact was fair and his speech was unspontaneous. His affect was appropriate, but restricted. Psychomotor activity was within normal limits. He did not appear to be psychotic. He had partial insight and immediate and recent memories were moderately impaired. Remote memory was intact. Fund of general information, abstract thinking, and judgment were intact. The diagnosis was PTSD. In a VA hospital summary dated in June 1995, the veteran received treatment for various conditions including PTSD which was diagnosed as chronic and severe. It was noted that the veteran had complaints of social withdrawals, depression, poor self-image, terrible feelings all the time, and inability to cope with his severe PTSD symptoms. On examination, the veteran was alert, oriented times three, well kept, and cooperative. He was described as normo-active and his thoughts were coherent. He did not have any active suicidal or homicidal thoughts and was not psychotic. He did not show any delusions or hallucinations. The veteran successfully completed a four-week self-esteem program. It was noted that he would continue to require extensive psychiatric follow-up for an extended period of time. He was determined to be permanently and totally disabled with regard to his work status. The veteran filed his claim for an increased evaluation for his service-connected PTSD in June 1995. At the time he filed his claim, his PTSD was evaluated as 10 percent disabling. In a September 1995 rating action, the RO increased the veteran's service-connected PTSD to 50 percent. A VA hospital summary dated in November 1995 revealed that the veteran was admitted for detoxification. He stated that life had become unbearable. He felt that his PTSD symptoms were improving, however, his substance abuse was also increasing. He reported suicidal ideation, hostility, increased nightmares, and flashbacks. Upon mental status examination, the veteran's mood was depressed and his affect was flat. He could not count 3 or 7's but he was able to spell the word "world" backwards. His thinking was linear, logical and goal oriented. He did not hear voices and at discharge, he was stable and denied suicidal or homicidal ideation. The diagnoses included PTSD and a global assessment of functioning (GAF) score of 50/55 was assigned. A VA hospital summary dated in June 1996 shows that the veteran was admitted for treatment of substance abuse. A history of PTSD was noted. The veteran stated that he had occasional nightmares and visual hallucinations of people he has killed. He denied suicidal/homicidal ideation at the time of admission, but he had attempted suicide in the past, and prior to his admission, he was having suicidal/homicidal ideations. Mental status examination was without evidence of cognitive deficits, suicidal/homicidal ideations or thought disorder. At discharge, he was medically stable, without evidence of violent or self-destructive behavior, and unemployable. The diagnoses included history of PTSD and a GAF score of 50/50 was assigned. A VA hospital summary dated in August 1996 shows that the veteran was admitted for detoxification. Mental status examination showed no evidence of thought disorder, cognitive deficits, or suicidal or homicidal ideation. His affect was quite angry and congruent with his mood which was also angry. Speech was normal. At discharge, the veteran was medically stable without evidence of violent or self-destructive behavior. A VA hospital summary from August to September 1996 reveals treatment for substance abuse. It was noted that the veteran had a history of PTSD and that he had withdrawal symptoms. Mental status examination showed no evidence of thought disorder, cognitive defects, suicidal or homicidal ideation. At discharge, he was medically stable without evidence of violent or self destructive behavior. He was to continue follow-up treatment for his PTSD. The diagnoses included history of PTSD and a GAF score of 50/55 was assigned. A VA psychologist submitted a letter of treatment from in October 1996 and noted that the veteran was currently receiving treatment on an outpatient basis and had received inpatient treatment for PTSD in 1994 and 1995. He reported that since the veteran's last inpatient treatment in 1995, the veteran's PTSD symptoms had intensified and his overall psychiatric condition had deteriorated as a result. He reported that the veteran's personal hygiene had deteriorated as a result of PTSD and other medical problems. He noted that the veteran's PTSD was severe and chronic, and that as a result, the veteran was totally disabled and unemployable. The veteran would require on-going treatment for his PTSD to prevent continued decompensation and deterioration. At a hearing before an RO hearing officer in October 1996, the veteran testified that he is not able to work as a result of his PTSD. He stated that when his symptoms get very bad, he admits himself to a hospital. The veteran's wife testified that the veteran constantly talks about his experiences in Vietnam and that he has mood swings as a result of his PTSD. At a VA psychiatric examination in May 1997, the veteran complained of a lack of patience and of a desire to hurt himself and others all the time. He was forgetful and did not bathe regularly. He claimed he snapped at people and had angry outbursts and rage reactions. He indicated that he felt nervous all the time and had intrusive and distressing thoughts about his war experiences. He experienced lack of sleep and nightmares every night. He had a history of violence, but has not hit anyone in recent times. Mental status examination revealed that the veteran was alert, oriented, cooperative, and talkative. His mood was anxious and depressed. He appeared to be tense and restless, had sweaty hands, and never smiled or laughed. Eye contact was limited and speech was pressured. His affect was appropriate, but restricted. He did not appear to be hallucinating. He tended to ramble, but there was no sign of loosening of association. He was paranoid, but there was no indication that he was grossly delusional. He had partial insight. Immediate and recent memories were moderately impaired, however, remote memory was intact. Concentration was moderately to markedly impaired. Fund of general information, abstract thinking and judgment were intact. The diagnosis was PTSD. A VA outpatient treatment record dated in May 1997 reveal that the veteran was seen for follow-up treatment for his PTSD. He reported that he continued to have nightmares, flashbacks, inability to concentrate, decreased motivation, anhedonia, irritability/temper outbursts, and low energy. The impression was PTSD, severe, chronic. The veteran was afforded a hearing before the undersigned Board member in November 1997. He testified that has experienced many problems because after Vietnam and that he constantly contemplates suicide. He stated that he is violent. The veteran's wife testified that they don't socialize. She reported that the veteran thrashes around the bed at night. She stated that she and the children live in fear of the veteran. In July 1998, the Board remanded the case for additional development of the evidence. The RO was instructed to obtain additional medical treatment records, Social Security Disability records, and provide the veteran with a VA psychiatric examination. The Board noted that during the pendency of the veteran's PTSD claim, the rating criteria for psychiatric disorders had changed on November 7, 1996, and that the RO had not considered the veteran's claim under the revised criteria. Accordingly, the RO was advised to provide the examiner, prior to the examination, with both the old and new rating criteria for psychiatric disorders. The examiner was to conduct the examination with regard to both the old and new rating criteria. Once all the requested development was completed, the RO was then instructed to evaluate the veteran's claim under the old and new rating criteria for psychiatric disorders. A VA hospital summary dated in early July 1997 reveals that the veteran was admitted for depression and exacerbation of his PTSD. He stated that he experienced nightmares, poor sleep, decreased appetite and energy, feelings of hopelessness with anhedonia, and crying spells several times a week. He also stated that he has been chronically suicidal since Vietnam but he has no intent or plan to harm himself. Mental status examination revealed a restricted affect and depressed mood but there was no evidence of suicidal ideation, psychosis, or cognitive deficits. Judgment and insight were fair. Eye contact was fair and speech was within normal limits. The veteran was placed on observation, but he did not complete his hospital stay and left shortly after he was admitted. The diagnoses included PTSD. A subsequent VA hospital summary dated in late July 1997 reveals that the veteran was admitted with feelings of anger, depression, anxiety and wanting to hurt himself and his wife although he had no intent or plan. There was no change since the previous admission to the hospital. He stated that he did not know what to do with his anger. He was transferred the psychiatric ward for observation. It was noted that he was disabled and that he might be able to return to work once he completed a substance abuse treatment program. The diagnoses included PTSD and a GAF score of 45/60 was assigned. The veteran was hospitalized on three different occasions in April 1998. The first hospital summary reveals that the veteran was admitted for detoxification. Mental status examination revealed no evidence of a thought disorder, cognitive deficits, or suicidal/homicidal ideation. Speech was normal, affect was congruent, and mood was angry. The veteran completed an uneventful detoxification. He was discharged as medically stable without evidence of violence or self-destructive behavior. The diagnoses included history of PTSD and it was noted that the GAF score on admission was 40 and on discharge was 45. The second hospital summary shows that the veteran was admitted to the acute psychiatric ward with complaints of suicidal ideation with a plan. He reported main stressors as ongoing marital discord with his wife resulting in multiple suicide threats and homicide threats in the past. He stated that he had decreased sleep, loss of appetite, and impaired concentration. Mental status examination revealed normal psychomotor activities. Speech was at a normal rate and volume. He had a dysphoric mood with restricted affect. He was alert and oriented times three. Immediate thinking was linear and logical. He had goal-oriented perceptions. There were no auditory or visual hallucinations. He was no eminently suicidal or homicidal or psychotic at the time of discharge. The diagnoses included history of PTSD. His GAF score on admission was 58 and had improved to 70 at discharge. A third hospital summary dated from April to May 1998 reveals that the veteran was admitted for substance abuse treatment. Mental status examination was without evidence of a thought disorder, cognitive deficits, or suicidal/homicidal ideation. His affect was constricted. His speech was normal and his mood was dysphoric. The diagnoses included history of PTSD. His GAF score on admission was 45 and 50 at discharge. Subsequent to his hospitalizations, the veteran was seen for follow-up treatment. VA follow-up treatment records dated in 1998 indicate that the veteran's PTSD continued to be chronic and severe. An October 1998 Social Security Disability Determination report indicated that the veteran was awarded continued disability payments, in part, for chronic, severe PTSD with gradual decompensation of his PTSD symptomatology, and worsening depression and anxiety. Pursuant to the Board's remand directives, the veteran was afforded a VA psychiatric examination in January 1999. He veteran stated that he was currently unemployed and that he last worked in 1993. He complained of lack of sleep. He experienced flashbacks and frequent episodes of rage. He did not report any panic attacks or obsessional rituals. He reported exaggerated startle responses to unexpected, loud noises. He stated that he felt depressed all the time and that he has frequent crying spells. He has frequent suicidal thoughts, but denied any current plans or intentions of harming himself. He has very few interests. He had become increasingly irritable. He denied hallucinations and delusions. He stated that he was so paranoid that he does not even trust himself. He was hypervigilent. On examination, the veteran's dress, grooming, and hygiene were adequate. He was alert and oriented. His behavior was appropriate and cooperative. He was talkative. His mood was anxious and depressed. He appeared to be tense and was near tears several times. He never smiled or laughed and showed memory and concentration difficulties. His eye contact was fair. Speech was spontaneous, clear, relevant, and logical. He had no difficulties communicating. His affect was appropriate but restricted. Psychomotor activity was within normal limits. There were no psychotic abnormalities in perception, thinking, or thought content. Insight was fair. Recent memory was moderately impaired. He could recall only one of three words after 5 minutes. His immediate and remote memories were intact. Fund of general information, abstract thinking, and judgment were intact. The diagnoses included PTSD. A GAF score of 40 was assigned for the PTSD. The examiner noted that a GAF score of 40 contemplated major impairment in social and occupational functioning, that is, the person avoids people, neglects family, and is unable to work. A VA hospital summary dated in August 1999 reveals that the veteran was admitted for complained of suicidal and homicidal ideations, nightmares, lack of appetite, and depression. He admitted to some substance abuse. Mental status examination revealed a blunt affect, low mood, and no looseness of association. He had nondelusional paranoia with some suicidal ideations. There were questionable homicidal ideations. He denied hallucinations. He was oriented times three. Diagnoses included PTSD. His GAF score on admission was 30 and on discharge was 50. In a November 1999 rating action, the RO increased the veteran's PTSD rating from 50 percent to 70 percent disabling. The RO considered the veteran's claim under both the old and revised rating criteria for psychiatric disorders. Effective November 7, 1996, during the pendency of the veteran's appeal, the regulations pertaining to the evaluation of mental disorders, including PTSD, were amended. His PTSD was formerly rated pursuant to 38 C.F.R. § 4.132, Diagnostic Code 9411; it is now rated pursuant to 38 C.F.R. § 4.130 (1999). In Karnas v. Derwinski, 1 Vet. App. 308, 312- 313 (1991), the court held that where, as here, the governing law or regulation changes after a claim has been filed or reopened, but before the appeal has been concluded, the version most favorable to the veteran is to be applied, absent a contrary intent of Congress or the Secretary of VA. According to the rating criteria that were in effect prior to November 7, 1996, a 70 percent rating was warranted when the ability to establish and 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 rating was warranted when: 1) the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community; 2) the veteran exhibited 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 profound retreat from mature behavior; or 3) there was demonstrable inability to obtain or retain employment. See 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). On the other hand, according to the revised criteria, a 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). As has been noted in VA examinations, outpatient treatment records, and numerous hospitalization records over the past few years, the veteran's symptoms of PTSD have included repeated threats of suicide, thoughts of rage, self- isolation, loss of sleep and appetite, severe depression, and a loss of interest or motivation for personal interaction. The veteran's wife testified that she and their children are afraid of the veteran. The evidence also clearly demonstrates that the veteran is incapable of obtaining and maintaining gainful employment. His last full-time employment was in 1993 and although he tried to work again in 1997, he was able to work for just 1 1/2 months. The Board notes that the VA examiner in January 1999 indicated that that he felt that the veteran's PTSD symptoms only warranted a 70 percent rating, however, the Board is not bound by the medical examiner's interpretation of the rating code. The veteran's most recent GAF score of 40 denotes behavior which is considerably influenced by, "major impairment in several areas, such as work, family relations, judgment, thinking, or mood (e.g., avoids family, and is unable to work)." See American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, (DSM-IV) (1994). Pursuant to Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant normally applies. Therefore, under the "demonstrable inability to obtain or retain employment"" criterion, the Board finds that the veteran's PTSD more closely approximates the diagnostic criteria for a 100 percent schedular disability evaluation under Diagnostic Code 9411, effective prior to November 7, 1996. See 38 C.F.R. § 4.132, Diagnostic Code 9411. Because the Board has found that a 100 percent rating, the maximum schedular evaluation, is warranted under the criteria in effect prior to November 7, 1996, consideration of the claim under the criteria in effect after that date is not necessary. ORDER A 100 percent schedular rating is granted for PTSD, subject to the laws and regulations governing the payment of monetary awards. MARJORIE A. AUER Acting Member, Board of Veterans' Appeals