Citation Nr: 0001020 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 96-28 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an effective date earlier than May [redacted], 1995, for the grant of a 100 percent disability rating for post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Washington Department of Veterans Affairs WITNESSES AT HEARINGS ON APPEAL Appellant and a friend ATTORNEY FOR THE BOARD Christopher B. Moran, Counsel INTRODUCTION The appellant had active service from March 1960 to March 1963, September 1964 to September 1967, and from November 1969 to March 1976. His decorations include Combat Infantryman Badge and a Bronze Star Medal with Oak Leaf Cluster. The current appeal arose from a July 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The RO granted entitlement to service connection for PTSD with assignment of 10 percent evaluation effective January 10, 1992, the date of receipt of the application for service connection. In May 1993 RO granted an increased evaluation of 30 percent for PTSD, effective January 10, 1992. The Board of Veterans' Appeals (Board) remand the case to the RO for further development and adjudicative actions in November 1995. In April 1996 the RO granted entitlement to a 100 percent evaluation for PTSD effective from February 1, 1996. In January 1997 the RO granted entitlement to an effective date for a 100 percent evaluation for PTSD retroactive to May [redacted], 1995. The Board remanded the case for further development and adjudicative actions in March 1998. In June 1999 the RO affirmed the determination previously entered. The case has been returned to the Board for further appellate review. In July 1999 the veteran raised the issue of entitlement to service connection for heart disease as secondary to his service-connected PTSD. This issue is not inextricably intertwined with the certified issue on appeal, and has not otherwise been procedurally prepared or certified for appellate review. Accordingly, the Board is referring this issue to the RO for initial consideration and appropriate action. Godfrey v. Brown, 7 Vet. App. 398 (1995). FINDINGS OF FACT 1. Service connection has been established for PTSD from January 10, 1992, date of receipt of claim. 2. The competent medical evidence first showing that service-connected PTSD more nearly approximated totally incapacitating psychoneurotic symptoms resulting in profound retreat from mature behavior; or virtual isolation in the community; or inability to obtain or retain employment dates from May [redacted], 1995, but no earlier. CONCLUSION OF LAW The criteria for an effective date for a 100 percent schedular evaluation for PTSD prior to May [redacted], 1995, have not been met. 38 U.S.C.A. §§ 1155, 5107(a)(b), 5110(b)(2) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.400(o)(2), 4.1, 4.2, 4.7, Diagnostic Code 9411 (effective prior to November 7, 1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background In March 1992, B.W., M.Ed., Director of Family Counseling Center, reported having counseled the veteran for his chronic severe PTSD for several years. It was noted that the veteran was a willing worker, but his ability to concentrate and maintain a single mental focus was constantly interfered with by thought intrusions of the past and continuos bouts of depression. It was noted that the veteran made conscious efforts to repress the past. He built up a mental wall around his fear. The results were unhappiness, sadness, loss of motivation and personal life goals. A June 1992 VA psychiatric examination report shows the examiner made reference to a March 1992 report by B.W., describing the veteran before his military service and currently. There was also a January 1992 letter from the veteran describing his symptoms and experiences. The examiner also referenced a March 1986 private evaluation by a psychiatrist in which PTSD was reported as not found. The veteran was described as an informally and casually dressed individual. He appeared clean and had no body odor. He was oriented to time, place, and person, made good eye contact, and generally had good emotional contact. He was generally serious, and showed little humor. His fundamentals of information seemed adequate, and his memory and abstractive abilities seemed within normal limits. The examiner judged the veteran's intelligence to be within normal limits. For VA purposes, the examiner noted the veteran was competent and was capable of handling any funds due him. Diagnosis was PTSD, moderate. The examiner noted that the veteran was involved in some PTSD counseling with group counseling once a week. The examiner noted that he urged the veteran to continue with the program. A June 1992 VA Social and Industrial Survey it was noted that the veteran had completed the 11th grade. He completed his requirements for a high school equivalency diploma in the service. Prior to entering the service he had worked occasionally in the logging industry and had no specialized vocational training. He was never married and had no children. He denied all history of pre-military service psychiatric care. The veteran reported that for approximately 10 years he had been living in an apartment with his mother. Since leaving the service he had never had a significant relationship or a long term girlfriend. He reported that he had frequently felt suicidal as a result of his ongoing depression. He reported that he had difficulty sleeping at night, that he had been depressed "forever." He reported having problems with irritability and anger. Regarding employment history the veteran reported that he had had as many as a 100 jobs since leaving the service including police officer, logging, taxi driver, oyster picker, laborer, longshoremen etc. His steadiest period of employment was 5 months when he worked at an isolated lumber camp in Kodiak, Alaska. He reported he had problems on the job because he felt that he could not take orders. He had difficulty dealing with a day-to-day routine. He was currently unemployed and said his last steady employment was 1 year earlier. He described his financial health at this time as quite poor. He denied all history of having accepted public benefits except for unemployment which he received upon discharge from service. The veteran reported that he sought counseling with Mr. W., at Family Counseling Center in 1983 and had been working with him since then. It was noted that the veteran had been evaluated both in group and individual therapy. A summary of the veteran's treatment experiences was offered as collateral information to this report via Mr. W.'s letter. On discharge from this interview the veteran was not either suicidal or homicidal. The veteran and a friend provided testimony before a RO hearing officer in February 1993. They described the disabling manifestations of the veteran's psychiatric symptomatology and how it had affected him on a daily basis both socially and industrially. A transcript of the testimony has been associated with the claims file. A March 1993 VA psychiatric examination report shows that the veteran lived with his mother. He had no psychiatric treatment and received a high school equivalency diploma in the service. The examiner believed the veteran had average intelligence. He had never married but was engaged at one time. He joined the service in 1960 and was discharged in 1963, after spending almost over a year in Korea. The veteran had odd jobs and re-enlisted in 1964. He had his first tour of duty in Vietnam from 1966 to 1967. He was discharged in 1967. Again, he re-enlisted in 1969 and was discharged in 1976. He had had individual counseling and group therapy but he couldn't stand groups, and currently only had individual counseling once a week. He was not on any medications. The veteran used to play drums in the band and orchestra in high school, but did not want to play in the Army band. However, there was a short time in basic training when he was a drummer. He had spent two years in Alaska and had made many close friends at that time. They all went to Vietnam together. Part of his traumatic experiences the first tour of duty consisted of the loss of these friends by explosions, ambush, and cross fire with the enemy. His combat experiences were extensive. It was noted that although he owned two rifles, he no longer used them for hunting. His only interest currently was fishing. He was not interested in sports, had a few friends, became very irritable, told people off, avoided crowds, and stayed away form things that would remind him of Vietnam such as diesel smells, movies, etc. His memory was good but there were certain things in Vietnam that he could remember. On mental status examination the veteran was described as neatly and casually dressed. He was clean and well groomed. Throughout the interview, he was restless, moving his hands and feet. He talked about his friends who were worse off. He had a mild memory defect. His memory for obligations had to be written down. He was well oriented in spheres and had no psychotic symptoms. He complained bitterly of not sleeping. He believed that the symptoms of sleeplessness, especially intrusive thoughts about Vietnam, had begun around 1970, but he didn't know what they were. He had had approximately 100 jobs, if not more, since discharge. They were all simple jobs, since he had not had any training. He could not take orders and got into struggles with authority figures. At the present time, he was driving a cab probably twice a week. He had almost gotten fired because he refused to drive at night. He couldn't handle the drunks so he did daytime driving $4.50 an hour with few tips. Diagnosis was PTSD, chronic with Global Assessment of Functioning (GAF) Score not greater than 70 for moderate disability. A February 1996 report of a VA psychiatric examination by a board of two psychiatrists shows the veteran had no significant relationships with women until about three years before. He started becoming very close to a woman. During this period he said he was able to work for the longest time consistently in his entire life. This was as a taxi driver. He would work four 12-hour shifts a week. He started going to church with his girlfriend, and felt like "I was becoming alive again". Then, in March of 1995, he got an anxious call from his girlfriend at work. He picked her up 15 minutes later, and she looked like 'she was ready to die". The veteran took her to the hospital where "her large intestine burst and infected her". She was in intensive care and in the hospital for two months until she finally died. "That did it. I had finally found someone I loved. For two weeks after she died, I couldn't do anything. Then, I quit my job." He had made a couple of attempts to go back to work since then, including the day before the examination, but couldn't handle dealing with people, He stated that everywhere he went he would see his girlfriend. It was noted that since her death, the veteran had found that Vietnam had come back even stronger, and "I wonder what the purpose is of my life. I feel like an outcast." It was noted that except for two episodes of binge drinking, he had remained sober since his girlfriend's death. He stayed in her house at the family's request until it was sold a couple of weeks before. The veteran was currently living with his mother and said he was "doing nothing". He might take a drive in the woods. Sometimes he and a buddy would go out target shooting. He liked to fish and hike. There was one other friend who would come by once or twice a month. He continued to see Mr. W. in treatment until he retired a couple of years earlier after his wife died. The veteran was not aware of any physical problems and was receiving no medical treatment at the present. Assessment noted that the veteran had previously been diagnosed with PTSD, and the board of two agreed with this diagnosis. It was felt that the veteran suffered from a dysthymic disorder that was secondary to the PTSD, but which had recently been aggravated by the death of his girlfriend. The examiners agreed that the major source for the veteran's dysfunction in his adult life had been PTSD from his two tours in Vietnam. It was noted that while the veteran was clearly grieving over the loss of his girlfriend, he had been suffering significantly from PTSD, and chronic depression, for many years, which had greatly impacted his life and continued to impair his ability to function to a significant degree. It was agreed that the current GAF was 45 because he currently had a serious major impairment and was not able to work as in recent years. The primary source of these difficulties was PTSD. Also noted were traumatic stressors during two tours in Vietnam and the death of girlfriend in 1995. He had been unemployed since that time. The Global Assessment of Functioning Score was 45. A VA Social and Industrial Survey associated with the above examination shows the veteran arrived for the appointment looking discouraged and downtrodden. Upon arriving for his appointment he immediately and spontaneously described the May [redacted], 1995, demise his girlfriend and displayed a picture of himself with his girlfriend. He reported that his girlfriend died unexpectedly from an apparent infection. He reported that she died holding his hand at Olympic Hospital. He reported that this had been a very significant recent event in his life which had set him back. The veteran reported that he was currently employed on a part-time basis as a taxicab driver. He reported that he was working steadily until his girlfriend's death and then found "I could not handle no more." He reported that prior to her death, "I did pretty because I had somebody to work for." The veteran reported that in addition to his job as a taxicab driver since leaving the service, he had worked as a truck driver, police officer, longshoreman, oyster picker and a logger. He worked as a police officer for four to five months and then quit. He was able to maintain his longshoreman's work as it was casual in nature. The veteran reported that his longest position on a job was his current taxi driving job which had lasted for approximately three years. He noted never being fired from a job. He reported that he had quit from all of his jobs except his longshoreman's job and his current job, noting "I couldn't take it." On discharge from the interview, the veteran reported that his intention was to continue living with his mother. He intended to continue working at the best of his capacity as a part-time taxicab driver. Subsequently received Social Security Administration (SSA) Disability Determination records show that the veteran reported becoming disabled and unable to work on January 30, 1996 due to PTSD. He drove a taxi-cab and his duties included delivering passengers, handling money, keeping records and operating a radio. A July 1996 VA clinic psychology record shows that a psychiatric examination the previous February had found that since the death of his girlfriend, the events of experiences in Vietnam had come back stronger. It was noted that except for two episodes of binge drinking, the veteran had remained sober since her death. Moreover, he was noted to go out with a buddy target shooting or hunting as well as seeing another friend once or twice a month. In August 1996 the veteran and a friend attended a hearing before a hearing officer at the RO. A copy of the hearing transcript is on file. The friend did not testify. The veteran noted that in February 1993 he started working as a taxi-driver three days per week during the daytime. He noted making enough money to survive. He noted quitting in January 1996. A September 1996 medical statement for SSA Division of Disability Determination Services shows that the veteran was gainfully employable at that time. Criteria The effective date of an evaluation and entitlement of an award of pension, compensation or dependency and indemnity compensation based on an original claim, a reopened claim after final disallowance, or a claim for increase will be the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date of compensation based on new and material evidence received after a final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii). The provisions of 38 C.F.R. § 3.400(o)(1), state that the effective date for increased compensation is, except as provided in 38 C.F.R. § 3.400(o)(2) (1999), the date of receipt of claim or the date entitlement arose, whichever is later. The date of an award of increased compensation is the earliest date as of which it is factually determined that an increase in disability had occurred, if claim is received within one year from such date; otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2) (1999). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next of kin may be considered an informal claim. 38 C.F.R. § 3.155 (1999). The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of claim. 38 C.F.R. § 3.157(1) (1999). The date of receipt of such evidence from a private physician or layman will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits. 38 C.F.R. § 3.157(2) (1999). When submitted by or on behalf of the veteran and entitlement is shown, date of receipt by VA of examination reports, clinical records, and transcripts of records will be accepted as the date of receipt of a claim if received from State, county, municipal, recognized private institutions, or other Government hospitals (except those described in paragraph (b)(1) of this section.) 38 C.F.R. § 3.157 (3) (1999). An acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of § 3.114 with respect to action on VA initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of one year prior to date of receipt of the report. Disability ratings are based, as far as practicable, on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. The average impairment as set forth in the VA Schedule for Rating Disabilities, codified in 38 C.F.R. Part 4, includes diagnostic codes which represent particular disabilities. Generally, the degrees of disability specified are considered adequate to compensate for a considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (1999). In Fenderson v. West, 12 Vet. App. 119 (1999), 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 (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. As will become apparent below, the Board finds no basis for assignment of staged ratings in the veteran's case. Where 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 (1999). Under the previous General Rating Formula for Psychoneurotic disorders for PTSD under Diagnostic Code 9411, a 100 percent rating is assigned when there are 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 when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; or when the veteran is demonstrably unable to obtain or retain employment. See Johnson v. Brown, 7 Vet. App. 95, 97-99 (1994). A 70 percent evaluation is assigned when the veteran's 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. A 50 percent rating is assigned when there is considerable impairment in the ability to establish or maintain effective or favorable relationships with people, and when, by reason of psychoneurotic symptoms, the reliability, efficiency, and flexibility levels are so reduced as to result in considerable industrial impairment. Id. A 30 percent rating is assigned for definite impairment in the ability to establish or maintain effective and wholesome relationships with people, and when the psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. Id. 38 C.F.R. § 4.132; Diagnostic Code 9411. 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 terms were "quantitative" in character, and invited the Board to "construe" the term "definite" in a manner that would qualify the degree of impairment for purposes of meeting the statutory requirements that the Board articulate "reasons or bases" for its decision pursuant to 38 U.S.C.A. § 7104(d)(1). In a precedent opinion, dated November 9, 1993, the VA General Counsel 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. The Board is bound by this interpretation of the term "definite." See 38 U.S.C.A. § 7104(c). The criteria for rating mental disorders were amended effective November 7, 1996. As the period of time at issue for rating the appellant's PTSD is prior to this date, the amended criteria are not applicable. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt doctrine in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis The Board notes that the appellant's claim for an effective date earlier than May [redacted], 1995, for the assignment of a 100 percent schedular evaluation for PTSD is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The veteran's assertions concerning the severity of his PTSD (that are within the competence of a lay party to report) are sufficient to conclude that his claim for an earlier effective date for the grant of a 100 percent evaluation for PTSD is well grounded. King v. Brown, 5 Vet. App. 19 (1993). The Board also finds that as a result of the prior remands of the case to the RO for further development and adjudicatory actions, the facts relevant to the issue on appeal have been properly developed and that the statutory obligation of VA to assist the veteran in the development of his claim has been satisfied. Godwin v. Derwinski, 1 Vet. App. 419 (1991); White v. Derwinski, 1 Vet. App. 519 (1991). A comprehensive review of the record clearly shows by competent VA psychiatric examinations that the veteran's PTSD between January 10, 1992 and May 4, 1995 with GAF score of 70 (moderate disability) was not reflective of total social and industrial impairment. As a point of reference, the Board notes that according to the Court, the GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health, illness, and that lower scores of 55-60 ratings even indicate "moderate difficulty in social, occupational, or school functioning." Carpenter v. Brown, 8 Vet. App. 240 (1995). Moreover, the record shows that following separation from service, he essentially continued a pattern of no steady employment he had had prior to entry into the service. He worked at various unskilled jobs as he had no special vocational training. He noted that he was never fired. He always quit. He was never medically determined to be unemployable during that time period or advised not to work due to service-connected PTSD. While the veteran attended counseling sessions he was not on any medication. He had some friends with whom he socialized and enjoyed fishing. There is no indication in the record showing other than the fact that he chose to work as a cab driver on a part time basis. The Board may not overlook the fact that when he so desired he was capable of driving a cab for more than 8 hour shifts. It was not until the February 1996 VA special psychiatric examination that the veteran's PTSD was found to be productive of total disablement due directly to the death of his girlfriend on May [redacted], 1995. At the time of the February 1996 VA examination the GAF for the first time was 45. A GAF score of 45 indicates serious symptoms or any serious impairment in social, occupational, or school functioning, such as being unable to keep a job. See Carpenter. The VA examiners associated the increased psychiatric disability affecting employment with the death of the veteran's girlfriend on May [redacted], 1995. Prior to that time his psychiatric symptoms were not demonstrably reflective of total social and industrial impairment due to PTSD. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). The Board, however, is still obligated to seek all issues that are essentially raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law or regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on its own. In the veteran's case at hand, the Board notes that the RO neither provided nor discussed the criteria for assignment of an extraschedular evaluation. The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the VA Undersecretary for Benefits or the Director of the VA Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board does not find the veteran's disability picture prior to May [redacted], 1995, to have been unusual or exceptional in nature as to warrant referral of his case to the Director or Undersecretary for review for consideration of extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1). The period of time of in question does not show that PTSD markedly interfered with employment or required frequent inpatient care. Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. ORDER An effective date for a 100 percent schedular evaluation for PTSD prior to May [redacted], 1995, is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals