Citation Nr: 0003180 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 99-11 471 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States INTRODUCTION The veteran had active service from April 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1999 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois that granted service connection for PTSD and assigned a 50 percent evaluation from August 5, 1991. FINDINGS OF FACT 1. The claim of entitlement to an increased rating for PTSD is plausible and all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's service-connected PTSD is manifested by nightmares, startle reaction, hypervigilance, social isolation, panic attacks, and social isolation, such that his reliability, flexibility, and efficiency have been impaired to an extent that he is demonstrably unable to obtain or retain substantially gainful employment from August 5, 1991. CONCLUSIONS OF LAW 1. The claim for an increased rating for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for a 100 percent evaluation for PTSD have been met from August 5, 1991. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10 (1999) (38 C.F.R. § 4.132, Part 4, Diagnostic Code 9411 prior to November 1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds the veteran's claim for an increased rating is plausible and capable of substantiation and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran submits a well- grounded claim, VA must assist him in developing facts pertinent to that claim. The veteran has been afforded multiple examinations and hearings, and treatment records have been obtained. The Board is satisfied that all available relevant evidence has been obtained regarding the claim, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). 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. 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. 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), it was 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), it was 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. Further, since 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. In order for the veteran to be awarded a 100 percent schedular evaluation under Diagnostic Code 9411, in effect prior to November 7, 1996, he must be totally isolated in the community, or exhibit totally incapacitating psychoneurotic behavior equating to a profound retreat from mature behavior, or be demonstrably unable to obtain or retain employment. He only need meet one of these criteria. Johnson v. Brown, 7 Vet. App. 95 (1994). The record is uniformly clear that the veteran has been unemployed since August 5, 1991. The record also indicates that his residence during this period has been in a basement apartment in his mother's home. An April 1992 letter from a private psychological consultant indicates that the veteran's symptoms related to his PTSD were severe and overwhelming. A hospital discharge summary, relating to a March and April 1993 private hospitalization, reflects that the veteran was very bitter about Vietnam and his PTSD. It indicates that this had paralyzed him from getting on with his life and that he would need intensive help with this. The report of a June 1992 VA psychiatric examination reflects that the veteran was extremely tremulous and that his affect was anxious. He was menacing, sullen, and threatening. He acknowledged depression and suicidal ideas. He indicated that he had no feelings for anyone any more and would get in fights and was dangerous. He acknowledged homicidal impulses. Insight was fair and he was spontaneous, relevant, logical, and coherent. The diagnosis included PTSD with secondary major depression. A July 1998 letter from Michael W. Ernst, D.O., a private osteopath, reflects that, on psychiatric evaluation, the veteran reported panic attacks. He was paranoid and hypervigilant. On mental status examination he was alert and oriented. His attention and concentration were poor. The diagnosis included PTSD and the GAF was indicated to be 45. The report of a December 1998 VA psychological evaluation reflects that the veteran had nightmares, startle reaction, hypervigilance, social isolation, and panic attacks. His insight and judgment were fair. He did have a death wish, as well as insomnia and irritability. The diagnosis included PTSD and secondary depression. The global assessment of functioning (GAF) referable to PTSD was indicated to be 50. An April 1999 VA treatment record notes the veteran's long- term history of unemployment and having resided by himself in an apartment for the previous 10 years. It also notes that the veteran was angry and irritable. The impression was PTSD with the GAF indicated to be 25 and 25 for the prior year. The Diagnosic and Statistical Manual of Mental Disorders, 4th Ed. (DSM-IV), reflects that a GAF score of 21 to 30 indicates that behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas, e.g., no job. A GAF of 41 to 50 reflects serious symptoms or any serious impairment in social, occupational, or school functioning, such as no friends or unable to keep a job. With consideration of the veteran's unemployment as well as social status since August 5, 1991, as well as the above- referenced medical findings, the Board concludes that symptoms related to the veteran's PTSD have been fairly similar throughout the period from August 5, 1991. While the veteran does have physical disability as well, the Board concludes that the evidence is in equipoise with respect to whether or not the veteran's state of unemployment since August 5, 1991, is related to his PTSD. In resolving all doubt in the veteran's behalf, a 100 percent evaluation for PTSD is warranted from August 5, 1991, on the basis that he has been unemployable due to his PTSD. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.132, Diagnostic Code 9411 (effective prior to November 7, 1996); Johnson. ORDER An increased rating of 100 percent from August 5, 1991, is granted for PTSD, subject to the laws and regulations governing the payment of monetary benefits. MILO H. HAWLEY Acting Member, Board of Veterans' Appeals