Citation Nr: 0003575 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 95-33 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Determination of a proper initial rating for post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Edward Walls, Associate Counsel INTRODUCTION The veteran served on active duty from February 1971 to January 1973. His appeal comes before the Board of Veterans' Appeals (Board) from a February 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In February 1995, the RO granted service connection for PTSD and assigned a 10 percent evaluation from July 1994, the date of the veteran's claim. The veteran perfected an appeal of the initial evaluation in August 1995. Subsequent to an RO hearing in January 1996, the hearing officer increased the rating for PTSD to 30 percent, effective from the original date of the veteran's claim. The Board remanded the case in April 1997 for an additional VA mental disorders examination, and the case is again before the Board. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claim. 2. The veteran's psychoneurotic symptoms do not result in such reductions in initiative, flexibility, efficiency and reliablity levels as to result in considerable industrial impairment. 3. The veteran's PTSD does not cause occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial 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, 4.2, 4.7, 4.10, 4.130, (4.132, Diagnostic Code 9411 prior to and from November 7, 1996) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background and Medical Evidence The veteran served on active duty from February 1971 to January 1973, and he engaged in combat as part of the 129th Assault Helicopter Company during his tour in Vietnam. During a VA examination in September 1994, the veteran reported that he participated in many resupply operations for troops in Vietnam and he evacuated dead and wounded soldiers from combat. He said that many of his friends were killed or maimed during that time, and he lived in daily fear for his life while he was in Vietnam as a result. Because he was in a helicopter, he said he was a major target for enemy troops. Since his period of active duty, he indicated that he began to drink alcohol frequently until a few years before the September 1994 examination. He said he had "lived on the edge" since Vietnam, riding on motorcycles and avoiding marriage until the age of 30. He said he did not have children because he did not know if he would make a good father. He had trouble falling asleep and he had frequent nightmares. He described his mood as labile and he said he was easily frustrated and he had a bad temper. He said he avoided people and enjoyed his work as a coal miner because it kept him generally isolated except for his fellow coal miners, who were like his squad in Vietnam. He had been a coal miner for about 20 years at the time of the September 1994 examination. On mental status examination, he was alert, oriented in all three spheres, and the examiner indicated that the veteran was in good contact with routine aspects of reality and he showed no signs or symptoms of psychosis. The veteran's affect appeared to be rather flattened and his mood seemed to be one of moderate to severe depression. He described himself as extremely internalized and emotionally numb, and he had few friends and did not enjoy his life very much. His memory was intact. The veteran had appropriate interactions with the examiner and he spoke with normal tones, rhythms, and rates, with good eye contact and appreciation for the advice he was given. The examiner diagnosed PTSD, chronic and severe, but he did not offer an opinion as to the veteran's Global Assessment of Functioning (GAF) score. During a VA mental disorders examination in January 1996, the examiner stated that the veteran's PTSD symptoms did not impair his work. In fact, the veteran tried to keep himself focused by working long hours. However, the veteran reported that his nightmares had increased over the prior two years, and they resulted in a great deal of sweating. The veteran described mild to moderate anxiety in social situations, in restaurants, and when shopping. He reported that exaggerated startle responses and hypervigilance were impairing his social relationships, and he was able to socialize only with other Vietnam veterans. On the other hand, the examiner indicated that the veteran was not depressed. The veteran stated that he drank only one or two beers on the weekend. The examiner diagnosed PTSD and reported that the veteran was moderately impaired by his symptoms. Significantly, the examiner distinguished between the veteran's social and occupational impairment. He indicated there was definite impairment in social adjustment; however, there was no impairment in occupational adjustment. The examiner assessed the veteran's GAF as 75. During an RO hearing in January 1996, the veteran expressed his feelings of closeness to his fellow servicemen from Vietnam. He said they were all his "brothers," and he had been on vacations to "about every beach in the United States" with the Vietnam Veterans Motorcycle Club. With his own family, however, it was more difficult for him to describe his love. He spoke with his mother every day, but he found it difficult to tell his wife that he loved her. He had been married to her for about 15 years at that time. The veteran stated that he did not like crowds, and he almost never shopped. He enjoyed gardening in the summer and he loved to fly. The veteran had been attending counseling sessions at Westmoreland Community College. His wife reported that they almost never discussed his experiences in Vietnam and that he used to drink alcohol frequently until a few years prior to the hearing. The veteran and his wife were also interviewed by a VA examiner in July 1997. They reported that the veteran was becoming increasingly withdrawn from social settings other than those which involved the Vietnam Veterans Motorcycle Club. He did not take any medications for either psychiatric or physical problems. The veteran reported that he experienced flashbacks, nightmares, some hypervigilance, intrusive thoughts, exaggerated startle response, estrangement from his family members, and outbursts of temper. Both the veteran and his wife indicated that the veteran kept busy to cope with his symptoms. On mental status examination, his language was fluent, coherent, goal directed, and normal in rate with no latencies. He was alert and oriented. He made good eye contact. His affect appeared slightly depressed and moderately anxious and he became tearful on one or two occasions during the examination. On the other hand, he smiled and exhibited a sense of humor frequently. He also denied significant anxiety or depression at any time since his discharge from the service. His wife, however, said that it was her opinion that he was depressed. The veteran had sufficient energy, his sex drive was not impaired, and he never felt suicidal or hopeless. There were a number of activities, such as working on his motorcycle and gardening, that he enjoyed. The veteran had recurrent and intrusive memories of his Vietnam experiences. The examiner diagnosed PTSD and assessed his GAF score at 60. Legal Analysis The veteran contends that the 30 percent evaluation assigned for his PTSD does not adequately account for his symptomatology. He and his wife have reported that he works hard in the coal mine to cope with his symptoms, and he must stay busy all the time when he is not working. Moreover, he is having significant sleep disturbance and nightmares about Vietnam, in addition to a number of symptoms related to his PTSD. As a preliminary matter, the Board finds that the veteran's claim for a higher initial rating is plausible and capable of substantiation; thus, it is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Fenderson v. West, 12 Vet.App. 119, 126 (1999). When a veteran submits a well-grounded claim, the VA must assist him in developing facts pertinent to that claim. The Board is satisfied that all available relevant evidence has been obtained regarding the claim, and no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a) (West 1991). In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's service-connected disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations, except as noted below, that would warrant an exposition of the remote clinical history and findings pertaining to the disability at issue. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1999). Regulations require that, where there is a question as to which of two evaluations is to 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. 38 C.F.R. § 4.7. Furthermore, because this is an initial rating, the rule from Francisco v. Brown, 7 Vet. App. 55 (1994), that the present level of disability is of primary importance is not applicable. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Therefore, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as staged ratings. Id. at 125. During the pendency of the veteran's appeal, the rating criteria for evaluating psychiatric disorders was changed, effective November 7, 1996. See Rating Schedule Mental Disorders, 61 Fed. Reg. 52,695 (1996) (codified at 38 C.F.R. § 4.130). In Karnas v. Derwinski, 1 Vet.App. 308 (1991), the United States Court of Appeals for Veterans Claims (Court) held that when the law or regulations change after a claim has been filed, but before the appeal process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary did so. See DeSousa v. Gober, 10 Vet. App. 461, 465-67 (1997). However, in Rhodan v. West, 12 Vet. App. 55 (1998), the Court held that the new rating criteria regarding mental disorders could not have retroactive application prior to November 7, 1996. Therefore, in this case, the Board has evaluated the veteran's service-connected PTSD under the old criteria both prior to and from November 7, 1996, and under the new criteria as well from November 7, 1996. The RO service connected the veteran's PTSD in February 1995 and assigned a 10 percent evaluation, effective since his July 1994 claim. Subsequent to the veteran's January 1996 RO hearing, the RO increased the initial rating to 30 percent. Under the criteria in effect before November 7, 1996, a 30 percent evaluation was warranted for definite impairment in the ability to establish or maintain effective and wholesome relationships with people. The psychoneurotic symptoms result 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 and maintain effective or favorable relationships with people was considerably impaired, and the psychoneurotic symptoms resulted in such reductions in initiative, flexibility, efficiency and reliability levels as to result in considerable industrial impairment. A 70 percent evaluation was warranted where 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 evaluation was warranted where the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. A total rating required total incapacitating psychoneurotic symptoms bordering on gross repudiation of reality and disturbed thought or behavioral processes associated with almost all daily activities, such a fantasy, confusion, panic, and explosions of aggressive energy resulting in a profound retreat from mature behavior, and the veteran must have been demonstrably unable to obtain or retain employment. 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" in character, whereas the other terms were "quantitative" in character. The Court indicated that the Board should construe the term "definite" in a manner that would quantify the degree of impairment. In a subsequent opinion, the General Counsel of the 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 (Nov. 9, 1993). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c) (West 1991). In this case, the Board concludes that the competent medical evidence of record warrants no more than a 30 percent evaluation. In this regard, the veteran has reported that he has worked as a coal miner almost continuously since his period of active service (he also said there was a brief period during which he worked in the coal mining office). The VA examiner in January 1996 specifically stated that there was no occupational impairment as the result of the veteran's PTSD. Although the veteran has stated that he likes coal mining because it is underground and he feels safe, the Board finds that it is more important that he has worked continuously for so long, rather than the motives enabling him to maintain that employment and be successful at it. Evidently, the veteran is not suffering from considerable industrial impairment. The Board understands, however, that he is suffering from impaired social adaptivity. He has reported that he rarely goes out of his home for anything other than work or to spend time with the veterans' motorcycle group. On one hand, the fact that he has been able to go on vacations with a group of people, albeit other Vietnam veterans, shows that he has some level of social adaptivity. Indeed, the veteran has stated that he has been to "every beach in the United States" with the Vietnam Veterans Motorcycle Club. Moreover, the veteran has maintained his marriage for almost 20 years. On the other hand, he has stated that he suffers from numerous PTSD symptoms that show a degree of impairment of his social adaptivity stemming from his PTSD, and he has not been diagnosed with any other mental disorders. Apparently the veteran has ceased over-indulging in alcohol beverages for a number of years. The July 1997 VA examination report reflects that the veteran stated that he was not depressed, although his wife thought that he was depressed. She is not qualified, however, to make a medical determination, even though she is likely closest to the veteran. Overall, the competent medical evidence does not reflect that an evaluation in excess of 30 percent under the criteria for PTSD prior to November 7, 1996. Thus, the Board concludes that the veteran's PTSD manifests distinct, unambiguous, and moderately large in degree symptomatology; thus, an initial 30 percent evaluation, and no more, is warranted under the criteria before the regulations were amended. Under the criteria in effect as of November 7, 1996, a 30 percent evaluation is warranted for PTSD causing 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 normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, or recent events). A 50 percent evaluation is warranted for PTSD causing 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; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for PTSD causing 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); or the inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for PTSD causing 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; or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411 (1999). Likewise, the veteran's symptomatology is not productive of an evaluation in excess of 30 percent under the criteria as of November 7, 1996. As stated above, the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1999). The competent medical evidence shows that the veteran's PTSD is not manifesting occupational impairment. The Board is cognizant of the veteran's social impairment, but it would point out that he is able to establish and maintain effective social relationships, as shown by his interaction with fellow Vietnam veterans and his ability to maintain a relationship with his wife. As noted above, the veteran's GAF score in January 1996 was 75. According to the Diagnostic and Statistical Manual of Mental Disorders, 4th Ed. (DSM-IV), a GAF score of 71 to 80 reflects that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument), and no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). The veteran was also assessed with a GAF score of 60 in July 1997. The DSM-IV indicates that a GAF of 51 to 60 reflects 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). These GAF scores, in addition to the individual symptomatology presented during the VA examinations, show that he is suffering from slight to moderate impairment, respectively, but the 30 percent evaluation more appropriately reflects such impairment. Thus, the Board finds that an initial evaluation in excess of 30 percent is not warranted under the criteria as of November 7, 1996. ORDER An initial evaluation in excess of 30 percent for PTSD is denied. STEVEN L. COHN Member, Board of Veterans' Appeals