Citation Nr: 0004256 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 98-03 850 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA)Regional Office (RO) in Los Angeles, California THE ISSUE Entitlement to an increased evaluation for post-traumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant INTRODUCTION Active service from December 1965 to December 1969 has been documented. Additional service of 11 months has been reported. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1996 rating decision of the VARO in Los Angeles which confirmed and continued a 30 percent evaluation for the veteran's PTSD. The rating decision reflected that the veteran has been awarded a temporary total disability rating based on hospitalization for a service-connected disability from April 22, 1996. The prehospital rating of 30 percent was reestablished, effective October 1, 1996. By rating decision dated in May 1998, the prior rating decision was amended to reflect a 50 percent evaluation for the veteran's PTSD, effective October 1, 1996. The veteran and his representative have continued the appeal for a higher rating. FINDING OF FACT The veteran's PTSD is productive of severe social and industrial impairment, but no more. CONCLUSION OF LAW The criteria for a rating of 70 percent for PTSD are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.132, Diagnostic Code 9411 (1996). REASONS AND BASES FOR FINDING AND CONCLUSION Upon review of the record, the Board concludes that the veteran's claim is well grounded within the meaning of the statutes and judicial construction. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The rating schedule recognizes that a veteran's disability evaluation may require reratings in accordance with changes in his condition. It is also essential, in evaluating a disability, that it be viewed in relation to its entire history. 38 C.F.R. § 4.1. A review of the evidence of record discloses that service connection for PTSD was granted by rating decision dated in March 1995. A 30 percent evaluation was assigned, effective January 28, 1993, the date of receipt of a claim for disability benefits. The grant was based on a review of the service medical records, VA outpatient records, and reports of VA examination accorded the veteran in March 1994. At the time of evaluation by a VA social worker in March 1994, the veteran stated that after service he returned to school to get a high school diploma and an Associate's degree in Business Management. He worked for 20 years for the same warehouse company, loading trucks and doing clerical work. He said he was able to stay there as long as he did because he worked on his own and did not have to deal with people. When the warehouse location moved and the hours changed, he left and went to work for the Postal Service as a custodian in 1989. He was still employed with them. Currently, he was living with his wife and a teenage daughter. He had been involved in treatment with vet centers since 1988 and at the East Los Angeles Clinic since 1989. He was on medication for depression and for help with anxiety. He described himself as a sociable person prior to going to Vietnam, but claimed that he now liked to keep to himself. He indicated that he used alcohol to self-medicate until he began taking the prescribed drugs. He was friendly and cooperative during the interview. He was properly oriented. Affect seemed flat for the most part, but he showed some emotion when he informed the social worker about a son's death three years previously. A VA psychologist administered psychological testing and noted that the veteran had an overall scale score of 132 which was well above the empirically established cutoff of 107 for PTSD. Reportedly, the veteran admitted suffering from a number of PTSD symptoms, including flashbacks, nightmares, heightened startle response, emotional discontrol, depression, guilt, sleep disturbance, substance abuse, memory and concentration problems, difficulty holding a job, avoidance of situations that reminded him of the military, and alienation from family and friends. The veteran was also accorded a psychiatric examination for rating purposes by VA in March 1994. He indicated that he saw a psychiatrist for the first time in 1988 at the Loma Linda VA Medical Center when he was referred there from a local Vet Center. It was noted that he had been attending the East Los Angeles Clinic since 1989. He was taking 50 milligrams of Zoloft twice a day and 15 milligrams of Oxazepam three times a day. On examination he was described as dressed casually and as having fair hygiene. He was alert and cooperative. He was also pleasant, verbal and properly oriented. He appeared somewhat withdrawn. He was mildly anxious and affect was appropriate to mood. He became sad and tearful when talking about his son's death and his combat experiences in Vietnam. He maintained good eye contact and concentration was fair. He was coherent, and thought associations were logical and goal-oriented. He reported becoming paranoid around people and preferred to work alone because of loud noises which he claimed bothered him. He denied auditory or visual hallucinations. Additionally, he denied suicidal, or homicidal ideation. He reported experiencing nightmares about explosions. He also reported getting very angry and upset and nervous whenever he saw oriental people. He was described as withdrawn and depressed. He stated that he drank heavily to cope with his feelings. The Axis I diagnoses were alcohol abuse, noted to be in remission, PTSD, and depression. It was indicated the highest level of adaptive functioning during the past year was fair. In the March 1995 rating decision, it was indicated that the medical evidence described definite, but not considerable, social and industrial impairment due to the veteran's PTSD. Accordingly, a 30 percent rating under Diagnostic Code 9411 was assigned. The veteran was hospitalized by VA from April to September 1996. He was admitted to the domiciliary unit as an outpatient in order to participate in a program for treatment of PTSD. He had been receiving treatment since 1989 for the disorder and for depression through individual and group therapy. There had been no previous history of psychiatric hospitalizations. A history of panic attacks was reported. He planned to return home to his wife and daughter when discharged. He had worked as a custodian for the Postal Service and wanted to return to the job. He participated fully in the PTSD program and the discharge summary reflected that he was experiencing improvement in his symptoms of depression and isolation as he went through the program. He was to be seen for psychiatric followup at the East Los Angeles Outpatient Clinic. He was described as stable at the time of discharge. Of record is a progress note referring to the veteran's discharge from the hospitalization. It was indicated that when admitted, he was very depressed and suicidal. He was reportedly experiencing increased nightmares regarding Vietnam, panic attacks, difficulty sleeping, and problems at work. Isolation was described as one of his major problems. He had no interest in activities or hobbies and chose jobs which gave him the possibility of isolation. It was indicated that at the time of discharge he was concerned about his resentment of authority, an inability to communicate when problems arose, anger when problems were blamed on him, and the possibility of a panic attack. It was indicated that in the past, his common response was to take the anger out on his family, isolate himself, and drink. Of record are reports of VA outpatient visits on periodic occasions. At the time of one such visit in January 1998, the veteran was seen for complaints which included panic attacks, nightmares, mood swings, startle reaction, insomnia, isolation, loss of controls of motions, authority problems, and guilt. It was indicated the veteran had been seen in the clinic since 1989. Reportedly, he had had suicidal or homicidal thoughts throughout the time frame with mood disorder fluctuations. He had been sober since 1996. The Axis I diagnoses were: PTSD, panic disorder, major depression, and agoraphobia. The Axis II diagnosis was an avoidant personality disorder. He was given a global assessment of functioning scale score of 40. It was indicated the maximum score during the past year was 50. The veteran was seen in a clinic in February 1998. Reportedly, his panic attacks had worsened to an extent they were occurring almost daily. It was indicated his PTSD symptoms were not changed. He was described as depressed, and preoccupied with sad thoughts and melancholia. On observation he was cooperative. He was described as depressed, unhappy, and anxious. The assessments were PTSD, panic disorder, and bipolar illness. His Xanax was increased. He was to continue his other medications and therapy. At the time of a hearing before a hearing officer at the Los Angeles RO in April 1998, the veteran testified that he was seen on about a monthly basis at the East Los Angeles Clinic. He indicated that he was seen on a weekly basis at a local Vet Center. He stated that he was still working as a custodian for the Postal Service. He did not have any idea as to how much time he missed from the job because of his psychiatric symptomatology. In a hearing officer decision dated in May 1998, the prehospital rating of 30 percent was increased to 50 percent, effective October 1, 1996, following termination of a temporary total disability rating based on hospitalization for service-connected disability from April 22, 1996. The veteran was accorded a psychiatric examination for rating purposes by VA on March 9, 1999. The claims file was not available to the examiner at the time of examination. Clinical records from the West Los Angeles VA Medical Center were reviewed. The veteran was still working as a custodian at the Post Office. He stated that up to a year ago, he had a lot of unsatisfactory performance ratings, but the supervisor had recently changed and now his performance ratings were all right. He added that his attendance was still a problem. He reported that in the past year had had lost quite a few days from work and had almost no sick time. He reported that he recently used two weeks of annual leave instead of sick leave for a physician-approved absence from work due to hypertension which he believed was related to his PTSD. He added that sometimes he came to work and had to leave because of panic attacks. Medications included 20 milligrams of Prozac twice a day and .05 milligrams of Xanax four times a day. Currently, he was seeing an individual on a twice-weekly basis at the East Los Angeles Vet Center for individual and group therapy. He was also seeing a VA physician for medication. The veteran stated that his PTSD affected his relationships with people and supervisors and he indicated he had no friends. He stated that he always questioned authority and did not trust authority. He claimed he did not want to take responsibility for making decisions. The veteran's wife indicated that sometimes she did not understand his mood swings or his isolation. She referred to temper tantrums and anger episodes. Positive symptoms of PTSD included reexperiencing events, intrusive thoughts, persistent avoidance of associated stimuli, diminished interest in significant activities, restricted range of affect, feelings of detachment or estrangement from others, and exaggerated startle response. Reference was also made of symptoms of bipolar disorder which included mood swings. It was indicated symptoms had persisted since service and were characterized by marked functional impairment. On current examination he was described as casually and neatly dressed. Facial expression was glum. He was grim- looking when relaxed, but smiled on occasion. He was properly oriented. He admitted to feeling confused at times whenever a lot of stress or responsibility was placed on him. He admitted to periodic flashback episodes. Mood was depressed and sad. He was cooperative during the interview. Speech was normal. He denied homicidal or suicidal ideation. He admitted to vague hostile thoughts, with no hostile or homicidal intent or plan. His temper was short, especially with regard to whether his family was being treated fairly. He indicated that his wife and daughter both needed him and he claimed that if that were not the case, he would probably "check out by now." He indicated that he did not remember a lot of things. He was not given psychological testing because he complained of a bad back and difficulty sitting for long periods. As for impairment, the examiner stated that he "has severe PTSD symptoms and severe social and industrial impairment related to PTSD. GAF equals 50." Analysis The veteran's service-connected PTSD has been evaluated as 50 percent disabling pursuant to 38 C.F.R. § 4.132, Diagnostic Code 9411, under the "old" rating criteria for psychiatric disabilities effective prior to November 7, 1996. Effective that date, during the pendency of this appeal, the rating schedule was amended with regard to rating mental disabilities. Because the veteran's claim was filed before the regulatory change occurred, he is entitled to application of the version more favorable to him. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). According to the regulation in effect prior to November 7, 1996, a rating of 50 percent is for assignment when the ability to establish or maintain effective and favorable relationships with people is considerably impaired. By reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. The next higher rating of 70 percent is warranted when the ability to establish or maintain effective or favorable relationships with people is severely impaired, and the psychoneurotic symptoms are of such severe and persistence that there is severe impairment in the ability to obtain or retain employment. The maximum rating of 100 percent is warranted when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; where there are totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought of 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 when the veteran is unable to obtain or retain employment. 38 C.F.R. § 4.132, Code 9411. The "new" rating criteria provide a 50 percent rating for the veteran's PTSD when there is the following disability picture: 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. The "new" rating criteria for the next higher rating of 70 percent are met when there is 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 with 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 work-like setting); inability to establish and maintain effective relationships. The "new" rating criteria permit a 100 percent schedular rating for PTSD where there is the following disability picture: Total occupational and social impairment, due to such symptoms as: Gross impairment of 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the old criteria, nearly 70 percent evaluation could be awarded for severe social and industrial impairment. Also under the old criteria, a 100 percent evaluation could be awarded on three independent bases. That is, the attitude of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community; there were totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, and so forth; or the disability caused demonstrable inability to obtain or retain gainful employment. Richards v. Brown, 9 Vet. App. 255 (1996). The new rating criteria for a 70 percent rating are cited above. Additionally, the new rating criteria for a 100 percent schedular rating are also cited above and look to a total occupational and social impairment. When the veteran was seen in outpatient consultation on January 5, 1998, he expressed multiple complaints, including panic attacks, nightmares, mood swings, startle reaction, isolation, guilt, and authority problems. While he had been expressing these and other symptoms for some time, notation was made at the time of the January 5 visit that he had had homicidal or suicidal thoughts "throughout" with mood disorder fluctuation. The Axis I diagnoses included PTSD. He was given a global assessment of functioning scale score of 40. It was indicated the maximum score during the past year had been 50. A global assessment of functioning score of 40 is indicative of major impairment in areas, such as work or school, family relations, judgment, thinking, or mood. American Psychiatric Association, Diagnostic and Statistical Manual of Psychiatric Disabilities, 4th Ed., 1994 (DSM-IV), 38 C.F.R. §§ 4.125, 4.130 (1999). However, the outpatient treatment records and other records for this period showed that the veteran was satisfactorily maintaining employment. At the time of an outpatient visit on February 23, 1998, the veteran indicated that his panic attacks had worsened to occurring almost daily. It was indicated his PTSD symptoms had not changed. He was described as still depressed, sad, and preoccupied with sad thoughts and melancholia. His Xanax medication was increased. Further, when accorded psychiatric examination by VA in March 1999, the global assessment of functioning score the veteran was given was 50. Notation was made that while the veteran was properly oriented and cooperative, he reported numerous symptoms associated with PTSD and the examiner described the symptoms associated with the PTSD as severe from both a social and industrial standpoint. With the description of the overall impairment as severe, this meets the old criteria for a 70 percent rating for psychiatric industrial and social impairment. Accordingly, the Board finds that the overall degree of functional impairment produced by the veteran's service-connected PTSD is within the range contemplated by a 70 percent evaluation. However, the preponderance of the evidence is against a claim for a disability rating in excess of 70 percent for PTSD. The veteran has continued to work and given his ongoing employment, it cannot be found that his disability has resulted in total occupational inadaptability. Thus, a 100 percent rating would not be warranted under either the old or the new rating criteria. There have been no reports that he has had any periods when he has been unable to perform occupational tasks because of the severity of his PTSD symptoms. ORDER A disability rating of 70 percent for PTSD is granted. To this extent, the appeal is allowed. Robert E. O'Brien Acting Member, Board of Veterans' Appeals