Citation Nr: 0004690 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 98-17 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to an evaluation in excess of 10 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from October 1941 until February 1946. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a rating decision of July 1997 from the Fargo, North Dakota Regional Office (RO) which granted service connection for PTSD, and assigned a 10 percent evaluation, effective from December 5, 1996. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the RO. 2. The veteran's service-connected PTSD is manifested by complaints of flashbacks, frequent nightmares, irritability, reliving of combat events, anxiety, depression, and social withdrawal, chronic sleep impairment, and mild memory loss, productive of no more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for an initial disability evaluation of 30 percent for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.130, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection for PTSD was granted by rating action dated in July 1997, and a 10 percent disability evaluation was established from the date of the claim received on December 5, 1996. The appellant asserts that the symptoms associated with his service-connected PTSD are more severely disabling than reflected by the currently assigned disability evaluation and warrant a higher rating. The Board finds that the veteran's claim for an increased rating for PTSD is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is one that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Here, the veteran's claim is well grounded because he has a service- connected psychiatric disability and evidence is of record that he claims shows exacerbation of the disorder. See Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). The Board finds that all relevant facts have been properly developed and that no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). 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. The history of a disability must be considered. See 38 C.F.R. §§ 4.1, 4.2 (1998). The rule from Francisco v. Brown, 7 Vet.App. 55, 58 (1994) ("Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance."), is not applicable to the assignment of an initial rating for a disability following an award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet.App. 119 (1999). A 10 percent rating is warranted for PTSD when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms are controlled by continuous medication. A 30 percent rating is warranted when there is 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted when there is 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted 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 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation requires 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; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R.§ 4.130, Code 9411 The veteran underwent a PTSD evaluation in November 1996 at a VA outpatient clinic. He related that he now had multiple daily intrusive recollections of military combat events during World War II, and felt a great deal of sadness and some anger when he had those memories. He noted that he also had feelings of survivor's guilt, flashbacks and bad dreams about war to the point of sometimes waking up in a cold sweat. He said that he would walk around the house to check security. His son who accompanied him verified that this had been a pattern. The appellant indicated that he also had physical reactions, such as a racing heart and shivering when reminded of the war, and said that he avoided situations that reminded of him of combat or thinking about it as much as he could. He related that he had had undergone a marked personality change after the war and became much more tense, more cautious, less trusting and had more trouble with his temper as well as emotional numbing after that time. He said that he had difficulty with sleep and concentration, and was irritable and extremely hypervigilant which his son corroborated. It was noted that he startled quite easily, had problems with depression and found it difficult to enjoy himself. Following evaluation, it was the examiner's impression that the veteran appeared to meet the criteria for PTSD secondary to quite extensive combat experiences, and that he also had a major depression which appeared to be secondary to PTSD. On the same date in November 1996, the veteran was referred to a VA staff psychiatrist as an urgent walk-in on account of his various combat-related symptomatology for evaluation for medication for depression. He reported a great deal of daytime anxiety and problems with any type of crowds, as well as difficulty falling asleep and staying asleep. Upon mental status examination, he was alert and oriented and denied persistent depressed mood. He admitted to intrusive thoughts and flashbacks on a daily basis and said he frequently checked the security of his house. Following evaluation, the veteran was prescribed medication for his sleep disorder. On VA psychological evaluation by B. Engdahl, Ph.D. in March 1997, the veteran reported daily intrusive recollections of combat experiences, nightly combat nightmares, and occasional blank spells during which the veteran reports he is visualizing combat scenes. He avoided reminders of combat and described psychogenic amnesia related to his combat experiences. He reported emotional detachment from others. The interviewer opined that the veteran's chronic PTSD was moderately severe, with significant social and industrial impairment. An "approximate GAF score of 60" was noted. The appellant was afforded a VA psychiatric examination for compensation and pension purposes in April 1997. At that time, he reiterated extensive background history relating to his combat experiences and the symptoms he had had since that time. On this occasion, it was noted that he kept a loaded gun beside his bed, and had recollections of the smell of decomposing bodies. It was indicated that he kept himself busy as a way of distraction. It was noted that he watched television, liked to help out if he could, and walked around the farm. He indicated that he felt detached from his family but it was noted that he was actually very close to them as indicated by information gathered during the course of a structured interview and psychological testing. It was reported, however, that he had some general feelings of social isolation and a persistent problems with people of Asian extraction. He related that he had crying spells at times and depressed feelings. He reported having startle response and temper problems (without violence to people or objects), and that he was hypervigilant. Upon mental status examination, the veteran was observed to be casually dressed and fairly neat in appearance, pleasant, oriented, alert and cooperative. It was noted that affect was a bit labile and that he came to the point of tears when describing some of his memories. Speech was normal in mechanics and content and associations were coherent and relevant. It was noted that he had difficulty staying asleep with war-related nightmares and sweats. A pertinent diagnosis of PTSD was rendered. Psychosocial stressors were felt to be moderate, including some social isolation since the death of his wife, visual problems and general problems with aging. A General Assessment of Functioning (GAF) score of 60 was determined. VA outpatient clinic records dated from August 1997 to January 1998 show that the appellant was involved in a WWII PTSD group. In November 1997, he was observed to be moderately depressed, tense, anxious, worried, irritable, frustrated and withdrawn. In December 1997, it was reported that some of his symptoms had improved with the use of drugs but that he continued to have nightmares and intrusive thoughts. He reported he spent time with his family and had no friends. In January 1998, it was recorded that the veteran continued to be moderately depressed, tense, anxious, worried, irritable, frustrated and withdrawn. The veteran was referred for evaluation in December 1997 for sleep disordered breathing or some other difficulty causing excessive daytime sleepiness where it was noted that he had demonstrated such symptoms for many years with worsening during the past several years. It was reported that he generally retired around 10:00pm and slept until two or three o'clock and would awaken spontaneously. It was indicated that he had a history of PTSD and would awaken with a nightmare once of twice, weekly. It was reported that the veteran described jumping from his bed occasionally which he said was dream related. It was indicated that he had also been known to yell, scream and talk during his sleep. On mental status examination, it was observed that the appellant was pleasant and affable and neatly and casually dressed. His daughter accompanied him. It was reported that he related comfortably with the examiner. Speech was lucid and coherent. Mood was euthymic and affect was appropriate. Thought content revealed no aberrant form or content. It was noted that he appeared to be cognitively intact. Following evaluation, it was recorded that a sleep study would be pursued. Analysis The evidence shows that the veteran's service-connected PTSD is currently manifested by symptomatology which includes flashbacks, nightmares, evidence of sleep disturbance, irritation, anxiety and depression, avoidance of depictions of war and some preoccupation with his wartime experiences. His PTSD symptomatology appears to be chronic in nature. The appellant has reported social withdrawal, as well as diminished interest in everyday activities and pursuits. VA outpatient clinic notes of record indicate that while medication has helped to some extent, in his WWII group, he was consistently observed to be moderately depressed, tense, anxious, worried, irritable, frustrated and withdrawn. The Board finds in this instance that the veteran's cognition has been shown to be substantially intact on examination, and general functioning appears to be satisfactory in terms of routine behavior, self-care, and normal conversation. However, there is evidence of depressed mood, mild memory loss, anxiety, and sleep impairment of such frequency that they would comport with the criteria for a 30 percent disability evaluation of occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Moreover, his reported GAF score of 60 is indicative of no more than moderate difficulty in social and occupational functioning. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994). The Board thus finds that the extent of the veteran's chronic psychiatric symptomatology in its totality more nearly approximates the criteria for the assignment to the next higher rating in this regard. See 38 C.F.R. § 4.7. However, there are no indications of flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, or disturbances of motivation and mood consistent with the criteria for a 50 percent rating. The Board finds that a 30 percent disability rating adequately contemplates any and all PTSD symptomatology now indicated effective the date of the award of service connection, December 5, 1996. 38 U.S.C.A. §§ 1155, 5107(a); 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code 9411 (1999), Fenderson. The Board would also point out that in reaching its decision in this case, only the provisions of the VA's Schedule for Rating Disabilities have been considered. The Board is required to address the issue of entitlement to an extraschedular rating under 38 C.F.R. § 3.321 (1999) only in cases where the issue is expressly raised by the claimant or the record before the Board contains evidence of "exceptional or unusual" circumstances indicating that the rating schedule may be inadequate to compensate for the average impairment of earning capacity due to the disability. See VA O.G.C. Prec. Op. 6-96 (August 16, 1996). In this case, consideration of an extraschedular rating has not been expressly raised. Further, the record before the Board does not contain evidence of "exceptional or unusual" circumstances that would preclude the use of the regular rating schedule. The benefit of the doubt has been resolved in the veteran's favor to the extent indicated. 38 U.S.C.A. § 5107. ORDER An increased initial rating of 30 percent for PTSD is granted, subject to the law and regulations governing the payment of monetary benefits. U. R. POWELL Member, Board of Veterans' Appeals