Citation Nr: 0007491 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 96-37 057A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE 1. Entitlement to an evaluation in excess of 50 percent for post-traumatic stress disorder. 2. Entitlement to a compensable evaluation for the residuals of a left leg wound, characterized as a scar of the left ankle. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Fogarty, Associate Counsel INTRODUCTION The veteran served on active duty from April 1967 to February 1969. In an October 1997 decision, the Board of Veterans' Appeals (Board) remanded the issue of entitlement to an increased evaluation for post-traumatic stress disorder (PTSD) to the Department of Veterans Affairs (VA) Los Angeles, California Regional Office (RO) for additional development of the record. A review of the record reflects that the requested development has been completed. Thus, the case has now been returned to the Board for appellate consideration. The issue of entitlement to a compensable evaluation for the residuals of a left leg wound, characterized as a scar of the left ankle, will be addressed in the remand portion of this decision. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's PTSD is manifested by occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, and mood due to such symptoms as suicidal and homicidal ideations, obscure speech, near continuous panic and depression, impaired impulse control, neglect of personal hygiene, and an inability to establish and maintain effective relationships. CONCLUSION OF LAW A 70 percent evaluation for PTSD is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background Service personnel records reflect the veteran received numerous citations and awards, including the Combat Infantryman Badge, the Vietnam Campaign Medial with 1960 device, the Vietnam Service Medal, and the Purple Heart Medal. A private social services evaluation dated in April 1995 reflects the veteran had been married for 25 years and raised five children. The veteran complained of anxiety, fatigue, chest pains, flashbacks, intrusive thoughts, nightmares, restlessness, overemotional death wishes, rage, violence, guilt, self-defeating behaviors, startle responses, and paranoia. It was noted the veteran had poor communication with his family, neighbors, and group members. Concentration was noted as very poor. The veteran's ability to work or adapt to stress was also noted as very poor. His prognosis was noted as guarded. Upon VA examination dated in July 1995, the veteran complained of paranoia, nightmares, cold sweats, fatigue, and night terrors. It was noted that the veteran admitted to symptoms of flashbacks, depression, anxiety, concentration and memory problems, increased startle response, guilt, emotional discontrol, substance abuse, avoidance of situations reminding him of Vietnam, and alienation from family and friends. Mental examination revealed the veteran was casually dressed and groomed, fully oriented, coherent, relevant, mildly anxious, and depressed. The veteran denied suicidal or homicidal ideations, hallucinations, or delusional ideas. Concentration and memory were noted as poor, and insight and judgment were noted as adequate. Relevant diagnoses of chronic PTSD, major depression, and substance abuse were noted. The examiner assigned a Global Assessment of Functioning (GAF) score of 65. Psychological testing dated in July 1995 revealed an overall scale score that was well above the empirically established cut-off for PTSD. It was also noted that the MMPI-2 profile was invalid due to a tendency to respond to items in a distressed or exaggerated manner. A report of a social worker, also dated in July 1995, reflects that the veteran had worked as a lineman for GTE for 26 years after his discharge from service. The veteran expressed regret over killing others and reported dreams of firefights. In a December 1995 rating decision, the RO granted entitlement to service connection for PTSD, evaluated as 10 percent disabling, effective April 6, 1995. VA outpatient treatment records dated from February 1995 to October 1997 reflect treatment for a seizure disorder, diabetes mellitus, depression, alcoholism, and PTSD. An August 1996 social work note reflects the veteran reported increased flashbacks during the day and nightmares at night. A VA hospital report dated from July 1996 to August 1996 reflects the veteran complained of wanting to hurt someone. The veteran's homicidal ideations reportedly began during the Oklahoma City bombing. During the ten days prior to admission, it was noted that the veteran was scared, endorsed decreased concentration, increased appetite, decreased sleep, positive guilty feelings, worthlessness, and suicidal and homicidal ideations. It was noted that the veteran had tried to kill himself in the past by putting a gun in his mouth, but his wife interfered. A relevant discharge diagnosis of PTSD was noted. The examiner noted a GAF score of 30 to 45. A statement from a VA physician dated in July 1997 reflects that the veteran had been under his care since February 1995. The physician noted the veteran suffered from panic attacks, hypervigilance, arousal symptoms, and depression. It was also noted the veteran had rage attacks with thoughts of shooting the police and loss of control. At times the veteran became suicidal and despondent. Finally, the physician noted the veteran had serious trouble with stimulus discrimination and was often incapable of controlling his emotions. A relevant diagnosis of chronic PTSD with moderate stressors was noted. At his July 1997 hearing before a member of the Board, the veteran testified that his nightmares occurred at night and were becoming more frequent. He also stated they were not as bad as they had been, but he felt he had no control. The veteran reported nightmares during the daytime as well. (Transcript, pages 3-4). The veteran testified that the Fourth of July and helicopters set him off. (Transcript, page 4). He stated that he began drawing Social Security benefits in May 1997. (Transcript, page 9). The veteran testified that he last worked in January 1997, and when he did work he didn't want to talk to anyone. (Transcript, pages 8, 11-12, 14). He reported socializing with only a few people outside of his wife and children. (Transcript, page 12). The veteran stated he had flashbacks about two or three times per week. (Transcript, page 14). He reported having a very close relationship with his daughters, but no relationship with neighbors. (Transcript, pages 15-16). VA treatment records dated from August 1997 to March 1998 reflect continued treatment for PTSD. An August 1997 clinical record reflects the veteran continued to experience anxiety and depression. He also complained of hypervigilance, startle reaction, flashbacks, and paranoia. It was noted he felt guilt ridden, but was not suicidal or homicidal. In December 1997, the veteran complained of a lot of anger or rage and an inability to control his emotions. A February 1998 clinical record reflects the veteran was panicky at times, but doing a lot better, exercising, and spending time in stress management therapy. Records received from the Social Security Administration reflect copies of VA treatment records as well as private treatment records regarding the veteran's diabetes and seizure disorder. An April 1995 private psychological report reflects the veteran reported flashbacks, hostility, nervousness, depression, and problems with his temperament. The veteran also reported trouble concentrating and with his memory. Mental status examination revealed that immediate and long-term memory was intact, as was concentration. Insight and judgment were also noted as intact. The veteran's mood was noted as depressed and anxious, affect was mood congruent. Stream of thought was noted as normal. The examiner noted there was no evidence of responding to auditory or visual hallucinations and the veteran did not appear paranoid. Relevant diagnoses of a generalized anxiety disorder, depressive disorder, alcohol dependency in remission, and PTSD by history were noted. The examiner opined the veteran should have been able to respond appropriately to co-workers and supervisors, but not to the general public. The records received from the Social Security Administration also contain private hospital reports dated from April 1994 to May 1994 which reflect the veteran was admitted for continuing substance abuse and mental health treatment. Upon evaluation, he was noted to be suicidal and homicidal with a history of assaultive behavior a week earlier. Relevant diagnoses of PTSD and severe major depression without psychotic symptoms were noted. Upon VA psychiatric examination dated in December 1998, it is noted that the veteran's medical records were reviewed. The veteran reported experiencing anxiety, depression, nightmares, yelling in his sleep, flashbacks, terrible thoughts, nightmares, and hearing dying comrades calling for help. The veteran also reported wanting to kill himself at times because of his feelings of survival guilt. He reported his symptoms occurred "[c]onstantly, sometimes every day." He also reported that he did not get along with others and tried to avoid people. The veteran reported problems maintaining employment. A diagnosis of PTSD was noted. The examiner opined that the veteran's employment and social functioning were impaired, and there were some problems with thought processes and communication. He also opined that the veteran had some paranoid delusions, hallucinations, preoccupation with dead bodies, inappropriate behavior such as staring at people, and suicidal and homicidal thoughts. The veteran's ability to maintain personal hygiene was noted as fair. Short-term memory was noted as impaired and long- term memory was noted as fair. Rate and speech were noted as slow with obscure pattern. The examiner also noted panic attacks and nervousness. The veteran's mood was noted as anxious, tense, agitated, and depressed. Impulse control was impaired with sleep impairment. The examiner described the severity and frequency of the veteran's psychoneurotic symptoms as every day and affecting his occupational reliability, flexibility, productivity, and efficiency. The examiner noted extent of his symptoms as extensive and opined that they rendered him unable to perform occupational tasks because he reacted to people in a negative manner and that could affect social and occupational functioning. Self-care was noted as fair. A GAF score of 54, indicative of moderate difficulty in social and occupational functioning, was noted. In a December 1999 rating decision, the RO determined that a 100 percent evaluation was warranted for PTSD from July 1996, and a 50 percent evaluation was warranted from September 1996. Pertinent Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4 (1999). The percentage ratings contained in the Rating Schedule represent, as far as can be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include 38 C.F.R. §§ 4.1 and 4.2 (1999) which require the evaluation of the complete medical history of the claimant's condition. These regulations operate to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet. App. at 593-94 (1991). In the instant case, the veteran is technically not seeking an increased rating, since his appeal arises from the original assessment of a disability rating. When a veteran is awarded service connection for a disability and subsequently appeals the initial assessment of a rating for that disability, the claim continues to be well grounded. Fenderson v. West, 12 Vet. App. 119 (1999); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). In Fenderson, it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In that decision, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 18. Prior to November 7, 1996, PTSD was rated under 38 C.F.R. § 4.132, Diagnostic Code 9411 (1995). Effective November 7, 1996, the rating schedule for mental disorders was amended and redesignated as 38 C.F.R. § 4.130. See 61 Fed. Reg. 52700 (Oct. 8, 1996). PTSD is currently rated under the portion of the Schedule for Rating Disabilities that pertains to mental disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). The evaluation criteria have substantially changed in the new rating schedule and now focus on the individual symptoms as manifested throughout the record, rather than on medical opinions characterizing overall social and industrial impairment as mild, definite, considerable, severe, or total. The Court has held that where the law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the VA Secretary to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308 (1991). As the veteran filed his claim prior to November 7, 1996, the Board will evaluate his psychiatric disability in light of both the new and old criteria. Under the current rating criteria found in 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999), a 50 percent evaluation is warranted for PTSD with 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). A 70 percent evaluation is warranted for PTSD manifested by 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 work-like setting); and inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). PTSD manifested by total occupational and social impairment, due to symptoms such as the following: 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; and memory loss for names of close relatives, own occupation, or own name, warrants a 100 percent evaluation. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). Under the rating criteria for PTSD in effect prior to November 7, 1996, C.F.R. § 4.132, Diagnostic Code 9411, a 50 percent evaluation is assigned when the ability to establish or maintain effective or favorable relationships with people is considerably impaired, and by reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. A 70 percent rating is warranted when the ability to establish and maintain effective or favorable relationships with people is severely impaired, and the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. Where the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community, and 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, and demonstrable inability to obtain or retain employment, a 100 percent rating is warranted. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1995). Words such as "considerable" and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (1999). It should also be noted that use of terminology such as "mild" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. § 4.2, 4.6 (1999). In Hood v. Brown, 4 Vet. App. 301 (1993), the Court stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" 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. The General Counsel concluded that the term "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 large." VAOGCPREC Op. No. 9-93 (Nov. 9, 1993). The Board is bound by this interpretation of the word "definite." 38 U.S.C.A. § 7104(c) (West 1991). Employment is a factor that must be considered with regard to the evaluation of mental disorders. Prior to November 7, 1996, 38 C.F.R. § 4.130 provided that the severity of the disability was based upon actual symptomatology, as it affected social and industrial adaptability, and that two of the most important determinants of disability were time lost from gainful work and decrease in work efficiency. It was further provided that the rating board must not underevaluate the emotionally sick veteran with a good work record. 38 C.F.R. § 4.130 (effective prior to November 7, 1996). When there is a question as to which of two evaluations should be applied to a disability, 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. 38 C.F.R. § 4.7 (1999). Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (1999). Analysis Following a comprehensive review of the evidence of record, the Board concludes that a 70 percent evaluation is warranted for PTSD under the current criteria. The medical evidence of record reflects the veteran suffers from poor communication with family and neighbors, poor concentration and memory, suicidal and homicidal ideations, panic attacks, depression, hypervigilance, arousal symptoms, serious trouble with stimulus discrimination, an inability to control his emotions, paranoid delusions, and inappropriate behavior manifested by staring at others. The veteran's ability to maintain personal hygiene was noted as fair and his rate and speech were noted as slow with an obscure pattern. The December 1998 VA examiner noted the extent of the veteran's symptoms as extensive and assigned a GAF score of 54, indicative of moderate difficulty in social and occupational functioning. Further review of the evidence of record reflects the veteran has been married for twenty-five years, but has little or no social contact with others. The Board concludes that the aforementioned symptomatology more nearly approximates to the 70 percent schedular criteria under the current regulations in that it demonstrates occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, and mood due to such symptoms as: suicidal and homicidal ideations, obscure speech, near continuous panic and depression, impaired impulse control, neglect of personal hygiene, and an inability to establish and maintain effective relationships. The medical evidence does not tend to show total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Furthermore, the medical evidence of record does not suggest that the attitudes of all contacts except the most limited are so adversely affected as to result in virtual isolation in the community, or 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, and demonstrable inability to obtain or retain employment. Thus, an evaluation in excess of 70 percent is not warranted under the current or old criteria. Finally, as the Board has herein assigned one increase, without specifying effective dates or differentiating between multiple periods, the question of staged ratings has not been decided as prejudicial to the veteran; rather, in this case the Board has determined that none of the evidence of record supports an evaluation higher than that assigned, at any point within the appeal. Accordingly, no prejudice has resulted herein. Bernard v. Brown, 4 Vet. App. 384, 392-394 (1993). ORDER A 70 percent evaluation for PTSD is granted, subject to the governing regulations applicable to the payment of monetary benefits. REMAND The Board notes that in a December 1995 rating decision, the RO denied the veteran's claim for an increased evaluation for residuals of a left leg wound, characterized as a scar of the left ankle. In his August 1996 notice of disagreement, the veteran stated, "I was denied S/C for Left Foot and Leg Conditiopn [sic]. I disagree with your denial all [sic] scar on my foot." The RO interpreted the veteran's statements as a new claim of entitlement to service connection for a left foot condition with a scar and a left leg condition. The RO determined that the claim was not well grounded and the veteran did not file a notice of disagreement with that determination. The Board finds that the veteran's August 1996 statement was a notice of disagreement as to the denial of an increased (compensable) evaluation for the residuals of a left leg wound, characterized as a scar of the left ankle. The RO has not issued a statement of the case as to this issue. Accordingly, the Board is required to remand this issue to the RO for the issuance of a statement of the case. See Manlicon v. West, 12 Vet. App. 238 (1999) (The notice of disagreement initiated review by the Board of the RO's denial of the claim and bestowed jurisdiction on the Court; the Board should have remanded the issue to the RO for the issuance of a statement of the case). Accordingly, the case is REMANDED to the RO for the following development: 1. The issue of entitlement to an increased (compensable) evaluation for residuals of a left leg wound, characterized as a scar of the left ankle, is remanded to the RO for the issuance of a statement of the case. 2. Should a timely substantive appeal be received concerning this issue, all appropriate steps should be taken to prepare the case for appellate review. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required by the veteran until he receives further notice from the RO. The purpose of this REMAND is to obtain clarifying information and to afford the veteran due process. John E. Ormond, Jr. Member, Board of Veterans' Appeals