Citation Nr: 0004248 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 93-04 457 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUES Entitlement to service connection for chronic obstructive pulmonary disease (COPD). Entitlement to a higher rating for post-traumatic stress disorder (PTSD), initially assigned a 30 percent evaluation, effective from May 1994. REPRESENTATION Appellant represented by: John S. Berry, Attorney WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran had active service from March 1943 to May 1946 and from September 1950 to April 1952. This appeal came to the Board of Veterans' Appeals (Board) from April 1992 and later RO decisions that denied service connection for sinusitis, folliculitis, pharyngitis, pneumonia, COPD, tinnitus, otitis, residuals of DDT, a low back disorder, and arthritis of the left wrist; granted service connection for PTSD and assigned a 30 percent evaluation for this disorder, effective from May 1994; and granted service connection for anhidrosis and assigned a zero percent evaluation for this condition, effective from December 1992. In September 1996, the Board determined that the veteran had not submitted evidence of well-grounded claims for service connection for the claimed disorders; denied an increased evaluation for PTSD; and granted an increased evaluation of 10 percent for the anhidrosis. The veteran appealed the September 1996 Board decision to 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). He appointed John S. Berry, attorney at law, to represent him before the Court. In a June 1997 motion to the Court, the counsel for the VA Secretary requested bifurcation of the case for consideration of the issue of an increased evaluation for PTSD, that the Court vacate the September 1996 Board decision with regard to this issue, and a remand of this issue to the Board for further action. The counsel for the veteran did not respond to this motion. In July 1997, the Court ordered the counsel for the veteran to respond to this motion within 30 days. Counsel for the veteran did not respond to the July 1997 Court order, and in August 1997 the Court construed this lack of response as consent to the June 1997 motion by the counsel for the VA Secretary. In an August 1997 order, the Court vacated the September 1996 Board decision with regard to the decision denying an increased evaluation for PTSD and remanded the case to the Board for further action on this matter as requested in the June 1997 motion. The case was then sent to the Board. In a February 1998 letter, the Board asked the veteran's attorney whether he would represent the veteran before VA. In June 1998, a fee agreement between the veteran and the attorney was received showing that the attorney was authorized to represent the veteran before VA on matters in the September 1996 Board decision that were appealed to the Court. In June 1998, the Board remanded the case to the RO for additional development. In a July 1998 memorandum decision, the Court affirmed the decision of the Board in September 1996 with regard to the issue of service connection for a low back disorder, and vacated the decision of the Board in September 1996 with regard to the denial of the claim for service connection for COPD as not well grounded. This latter matter was referred to the Board for further action. The Court noted in this memorandum decision that no other issues in the September 1996 Board decision were raised in the veteran's brief and that those issues were considered abandoned. The case was thereafter returned to the Board. In a July 1999 letter, the RO asked the counsel for the veteran whether he wanted to submit additional evidence and or argument with regard to the issue of service connection for COPD. A review of the record does not show receipt of a reply to this correspondence. The issue of service connection for COPD will be addressed in the remand portion of this decision. FINDINGS OF FACT 1. The veteran's PTSD is manifested primarily by anxiety, recollections and nightmares of wartime experiences, depression, and some gradual erosion of recent memory that produce no more than definite social and industrial impairment. 2. PTSD symptoms, such as flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty understanding complex commands; impairment of long term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships that produce occupational and social impairment with reduced reliability and productivity or considerable social and industrial impairment are not found. CONCLUSION OF LAW The criteria for a higher rating for PTSD, initially assigned a 30 percent evaluation, effective from May 1994, are not met. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. §§ 4.7, 4.132, Code 9411, effective prior to November 7, 1996, and 4.130, Code 9411, effective as of November 7, 1996. REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Factual Background VA and private medical reports show that the veteran was treated and evaluated for various disabilities in the 1990's. The more salient medical reports with regard to his claim for a higher rating for PTSD are discussed in the following paragraphs. The veteran submitted a claim for service connection for PTSD in May 1994 and underwent a psychiatric examination for VA purposes in August 1994. He gave a history of sustaining a gunshot wound in the right arm in the Korean Conflict. He reported that his ability to recall this trauma was not good. He said that he had recurrent dreams of this event and that exposure to events that symbolize or remind him of his traumatic experience in service caused marked psychological distress. He was well oriented as to time, place, and person. His affect was that of moderate depression. His mood was stable. He was able to reach a goal idea without difficulty and there was no evidence of any tangential ideation. His memory with regard to recent and remote events seemed to be intact with the exception of the traumatic event that caused his injury. He was able to deal with abstraction without difficulty and his level of tension was judged as moderate. There was no evidence of any psychotic thought process. His judgment was evaluated as intact, as was his insight. It was concluded that he had PTSD to a moderate degree. The veteran underwent another psychiatric examination in February 1995 for VA purposes. He was oriented to time, place, and person. His affect showed moderate depression with a stable mood. He had a moderate amount of anxiety. He could reach a goal idea and there was no evidence of any tangential ideation. Further psychotic process was not observed. His memory with regard to recent and remote events appeared to be intact with exception of the traumatic event that caused his physical injury in service. He was able to do abstract conceptualization without difficulty and there was no evidence of obsessive-compulsive thinking. His judgment was evaluated as intact as was his insight. He gave a history of impaired employment, periods of unemployment, and under-employment. The Axis I diagnosis was PTSD, moderate in severity. The veteran underwent a VA psychiatric examination in September 1998 pursuant to instructions in the June 1998 Board remand. He reported nightmares and flashbacks of wartime experiences. It was noted that his PTSD and service injuries had resulted in impairment of his ability to sustain a normal interpersonal relationship and had seriously impaired his ability to work. He was well oriented to time, place, and person. He was able to follow a goal without disruption. There was no evidence of underlying psychotic thought process and he denied delusions, hallucinations or current suicidal ideation. Moderate anxiety and depression were noted. Intelligence was judged as average. His ability to perform abstractions was unimpaired. His fund of general information was good and his recent and remote memory appeared to be intact, however, he cited some gradual erosion of recent recall. His judgment was evaluated as being intact with no impairment of his ability to manage financial matters without assistance. His insight was not impaired. The Axis I diagnoses were PTSD, moderate severity; and dysthymia, moderate severity, secondary to PTSD. The GAF (global assessment of functioning) was approximately 55 to 60. Statements from the veteran are to the effect that he has nightmares and recollections of wartime experiences contrary to information reported in some reports of his psychiatric examinations. His statements are to the effect that his PTSD is more severe than rated by VA. A review of the appellate record shows that service connection is in effect for paralysis of the median and ulnar nerves of the right arm, rated 70 percent; PTSD, rated 30 percent; a wound of Muscle Groups V and VI of the right arm, rated 30 percent; a scar in the area of Muscle Group II in the area of the right rib, rated 10 percent; and anhidrosis, rated 10 percent. The combined rating for the service-connected disabilities is 90 percent and the veteran is entitled to a total rating for compensation purposes based on unemployability. He is also entitled to special monthly compensation for loss of use of the right hand. B. Legal Analysis The veteran's claim for a higher rating for PTSD, initially assigned a 30 percent evaluation, effective from May 1994, is well grounded, meaning it is plausible. The Board finds that all relevant evidence has been obtained with regard to the claim and that no further assistance to the veteran is required to comply with VA's duty to assist him. 38 U.S.C.A. § 5107(a) (West 1991). In general, disability evaluations are assigned by applying a schedule of ratings (rating schedule) which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155. Although the regulations require that, in evaluating a given disability, that disability be viewed in relation to its whole recorded history, 38 C.F.R. § 4.41, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Also, 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A 30 percent evaluation for PTSD requires definite impairment in the ability to establish or maintain effective and wholesome relationships with people and psychoneurotic symptoms resulting in such reductions in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. A 50 percent rating requires that the ability to establish or maintain effective or favorable relationships with people be considerably impaired and that reliability, flexibility, and efficiency levels be so reduced by reason of psychoneurotic symptoms as to result in considerable industrial impairment. A 70 percent evaluation is warranted where the ability to establish or 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 and retain employment. A 100 percent evaluation requires that attitudes of all contacts except the most intimate be so adversely affected as to result in virtual isolation in the community and there be totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes (such as fantasy, confusion, panic, and explosions of aggressive energy) associated with almost all daily activities resulting in a profound retreat from mature behavior. The veteran must be demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, diagnostic code 9411, effective prior to Nov. 7, 1996. In Hood v. Brown, 4 Vet. App. 301 (1993), 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) stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other psychiatric rating terms were "quantitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate "reasons or bases" for its decision. 38 U.S.C.A. § 7104(d)(1)(West 1991). In a precedent opinion, dated November 9, 1993, 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). The regulations for the evaluation of mental disorders were revised, effective November 7, 1996. 61 Fed. Reg. 52695- 52702 (Oct. 8, 1996). When regulations are changed during the course of the veteran's appeal, the criteria that is to the advantage of the veteran should be applied. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Revised regulations do not allow for their retroactive application unless those regulations contain such provisions and may only be applied as of the effective date. See DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); McCay v. Brown, 9 Vet. App. 183,187 (1996). Under the revised general rating formula for the evaluation of mental disorders, 38 C.F.R. § 4.130, Code 9411, effective November 7, 1996, PTSD will be rated as follows: 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; memory loss for names of close relatives, own occupation, or own name.-100 percent 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 that 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); inability to establish and maintain effective relationships.-70 percent 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. - 50 percent 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).-30 percent The evidence shows that the veteran has dysthymia secondary to PTSD. Under the circumstances, all of his psychiatric symptoms will be considered in the evaluation of the PTSD. Statements from the veteran are to the effect that he has nightmares of wartime experiences and this evidence is supported by the overall evidence. The report of his psychiatric examination in 1994 for VA purposes indicates that his PTSD was manifested primarily by moderate depression and tension, and similar findings were found at his psychiatric examination in 1995 for VA purposes. At the September 1998 VA psychiatric examination the PTSD symptoms included moderate anxiety and depression, and it was noted that the veteran has some gradual erosion of recent recall. The GAF was found to be approximately 55 to 60 at this VA psychiatric examination. A GAF of 51 to 60 is indicative of moderate difficulty in social or occupational functioning under the provisions of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Third or Fourth Edition (DSM III or DSM IV) that is to be used in the evaluation of the veteran's PTSD. The Court defines GAF and cites to the DSM-IV in Richard v. Brown, 9 Vet. App. 93, 97 (1997). Also see 38 C.F.R. § 4.125, effective prior to or as of November 7, 1996. The overall evidence indicates that the veteran's PTSD is manifested primarily by anxiety, recollections and nightmares of wartime experiences, depression, and some gradual erosion of recent memory that produce no more than definite social and industrial impairment. While the evidence reveals that the veteran's PTSD and other injuries have resulted in serious impairment in his ability to sustain a normal interpersonal relationship and ability to work, the psychiatric symptoms alone, as found in the reports of his psychiatric examinations in 1994, 1995, and 1998, do not show that this disorder produces occupational and social impairment with reduced reliability, flexibility, efficiency and productivity such as to cause or more nearly approximate considerable social and industrial impairment. The evidence does not show the presence of PTSD symptoms, such as flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty understanding complex commands; impairment of long term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships that produce occupational and social impairment with reduced reliability and productivity or considerable social and industrial impairment. The evidence indicates that the current 30 percent evaluation for the PTSD best represents the veteran's disability picture. Nor does the evidence show manifestations of PTSD warranting a higher rating for this condition for a specific period or a "staged rating" at any time since the effective date of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The preponderance of the evidence is against the claim for a higher rating for PTSD, initially assigned a 30 percent evaluation, effective from May 1994, and the claim is denied. Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A higher rating for PTSD, initially assigned a 30 percent evaluation, effective from May 1994, is denied. REMAND With regard to the claim for service connection for COPD a copy of the Court's July 1998 memorandum decision has been placed in the veteran's claims folders. The Court noted that the "September" (sic) 1993 examination report concluded that the severity of the veteran's COPD could not be explained by his in-service wound and related surgical treatment; and found that this conclusion did not rule out whether some part of the lung disability could be attributed to service-connected causes. After review of the record and the Court instructions in this memorandum decision, it is the judgment of the Board that the report of the veteran's October 1993 VA medical examination should be returned to the examiner or other appropriate physician for the preparation of an addendum that includes an opinion as to the etiology of the veteran's COPD, including whether this disorder was aggravated by a service-connected disability. In view of the above, the case is REMANDED to the RO for the following actions: 1. The veteran's claims folders should be sent to the physician who conducted the October 1993 VA medical examination (or, if that physician is unavailable, an appropriate substitute) for the preparation of an addendum that includes an opinion as to the etiology of the COPD. The physician should give a fully reasoned opinion as to whether it is at least as likely as not that the service- connected disabilities (specifically, the right dorsal sympathectomy) caused some part of, or increased the severity of, the COPD. If the COPD was aggravated by a service-connected disability, the level of disability attributable to such aggravation should be reported, that is the degree of disability over and above the degree of disability that existed prior to the aggravation. The physician should support all opinions by discussing medical principles as applied to specific medical evidence in the veteran's case, including the VA reports of his examinations in March and October 1993. The veteran's claims folder must be made available to the physician prior to the preparation of the addendum, and if the requested information cannot be provided without examination of the veteran, he should be scheduled for such examination. 2. After the above development, the RO should adjudicate the claim for service connection for COPD based on a de novo review of all the evidence of record. This review should consider the holding of the Court in Allen v. Brown, 7 Vet. App. 439 (1995). If action remains adverse to the veteran, he and his attorney should be sent an appropriate supplemental statement of the case. The veteran and his attorney should be afforded an opportunity to respond to the supplemental statement of the case before the file is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. J. E. Day Member, Board of Veterans' Appeals