Citation Nr: 0001560 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 98-00 016A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Miyake, Associate Counsel INTRODUCTION The veteran served on active duty from July 1968 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1997 rating decision by the RO that denied a claim of entitlement to an increased rating for PTSD. In December 1997, the veteran requested a hearing at the RO. In January 1998, the veteran requested a hearing before a traveling member of the Board. In September 1998, the veteran failed to appear at a scheduled hearing at the RO. In April 1999, the veteran indicated that he would be unable to attend his scheduled travel Board hearing at the RO in May 1999. In June 1999, the veteran indicated his desire to appear at a hearing before a member of the Board in Washington, D.C. In September 1999, the veteran failed to appear at a scheduled hearing before a member of the board. Subsequently, the veteran filed a motion requesting a new hearing date before a member of the Board. In October 1999, good cause having been demonstrated, the Board granted the veteran's motion for a new hearing date before a member of Board. 38 C.F.R. § 20.702(d) (1999). A hearing was scheduled in December 1999; however, the veteran did not appear. FINDING OF FACT The veteran's PTSD is manifested primarily by panic attacks more than once per week, disturbances of motivation and mood, and difficulty in establishing and maintaining effective relationships, resulting in occupational and social impairment with reduced reliability and productivity. He does not experience symptoms to a degree that he is deficient in most areas such as work, family relations, judgment, thinking, or mood. CONCLUSION OF LAW A 50 percent rating for service-connected PTSD is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board notes that disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (1999). 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 (1999). When rating the veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, it is the more recent evidence that is of primary concern, since this provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The veteran's service-connected PTSD is currently evaluated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). Under these criteria, a 100 percent rating is warranted for 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). A 70 percent rating is warranted for 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); inability to establish and maintain effective relationships. Id. A 50 percent rating is warranted for 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; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 30 percent is warranted for 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). Id. Based on a review of the evidence of record, the Board finds that the veteran's PTSD warrants a 50 percent rating. At an April 1996 VA examination, the veteran reported that, except for a period of two years since separation from service, he had been incarcerated. He had had three different offenses and was incarcerated three different times, each time for robbery with attempted murder. He reported that his early years were marked with his attempt to overcome a severe speech impediment. While in prison, the veteran learned a trade of welding, and reported that he had a 40-hour a week job in welding which he had held for the previous year. His complaints included repeating memories, and difficulty with dreams. According to the veteran, he also had an attitude that did "not do very well for him in getting along with others." Examination revealed that the veteran had a speech impediment. There was no evidence of any cognitive difficulties, but there was a concern about the clarity of thinking. There were no overt symptoms of a formal thought disorder. The veteran reported that, while he was in prison, he was somewhat isolated and did not like people to be around him anymore than he liked to have them around him now. He was withdrawn, but eventually brightened up and appeared not to have significant dysphoria. PTSD and "underlying characterologic difficulties with some antisocial character traits as well as dysthymia" were diagnosed. The examiner opined that the veteran was fully employed and able to hold his work. The examiner further opined that the major deficits appeared to be much more social with an inability to adapt to our social framework and keep his impulses at bay. In his notice of disagreement, received in December 1997, the veteran indicated that he did not trust anyone and had problems with sleep, a depressed mood, lack of motivation, panic attacks more than once a week, and anxiety. In his substantive appeal, received in January 1998, the veteran indicated that he deserved a 50 percent rating because he experienced panic attacks 3 or 4 times a week. He was having problems with his relationship with his wife. He had sleeping problems at night, depression, and anxiety. He noted that he wanted to hurt himself and that his drive, motivation, and mood were very low. He also noted that he could not "handle pressure and stress because [he] turn[s] to violence." At an April 1998 VA examination, it was noted that the veteran was taking Sertraline or Zoloft, and previously had been on Venlafaxine or Effexor for symptoms of depression. The veteran's extensive history of having been incarcerated, consistent with a severe anti-social background was noted. The veteran reported that, for the previous year, he had been working as a welder. He believed that he had not lost any time from work over the previous 12-month period, but that he had no social life whatsoever. He reported that he went to work, came home, and stayed in the house. There was no impairment of thought process or the ability to communicate. He was not experiencing any delusions or hallucinations. No inappropriate behavior was noted; however, the veteran reported that he had suicidal thoughts, although he had never approached the stage where he tried to end his life. He also reported that he had homicidal thoughts. He was able to maintain minimal personal hygiene and other basic activities of daily living. He was oriented to person, time, and place. There was no evident short- or long-term memory loss. There was no obsessive or ritualistic behavior noted. The rate and flow of his speech was regular. There were no irrelevant or illogical obscure speech patterns noted. He periodically experienced panic attacks. There was some evidence of residual clinical depression consistent with his history. The veteran related that, at the present, he did not have impaired impulse control; however, the examiner noted that the records reflected a long history of antisocial activity based on the veteran's inability to control his behavior. The April 1998 VA examiner also noted that, in reviewing the veteran's past record, the veteran did have recurrent and intrusive distressing recollections of his Vietnam experiences. The veteran reported that his anger or irritability was controlled by his present medication. He still had sleep problems such as waking up due to flashbacks of his Vietnam experiences. He had some difficulty in concentrating; however, he could still perform his work as a welder. He was not hypervigilant or experiencing a startle response, but he did relate that, when he had flashbacks, he perspired profusely, became nauseated, and sometimes even vomited. A Global Assessment of Functioning score was 65. It was the examiner's opinion that the diagnosis of PTSD, which was found by the veteran's treating VA physician, was consistent with the overall clinical picture. Chronic PTSD and antisocial personality disorder were diagnosed. The Board notes that the recent medical evidence may be characterized as showing a disability picture that results in occupational and social impairment with reduced reliability and productivity due to such symptoms as panic attacks more than once a week, disturbances of mood and motivation, and difficulty in establishing and maintaining effective relationships. As noted above, the veteran was oriented to person, time, and place. There was no evidence of hallucinations or delusions. There was no impairment of thought process or memory. However, he still had recurrent and intrusive distressing recollections of his Vietnam experiences and reported outbursts of anger or irritability. He had some difficulty concentrating, but he could still perform his work as a welder. It has also been shown that he has difficulty in establishing and maintaining effective relationships as evidenced by his long history of antisocial behavior. As to whether the veteran's service-connected PTSD rises to the level of 70 percent disabling, the Board finds that it does not. As noted above, to receive a 70 percent rating, there must be 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 an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Code 9411 (1999). In this case, the veteran does not have the specific symptomatology necessary to support a higher rating of 70 percent. He was able to maintain minimal personal hygiene and other basic activities of daily living. Although he was described as having depression, flashbacks and having panic attacks, he has not had near-continuous panic or depression, and does not experience other symptoms characteristic of the 70 percent rating. Although he reported having experienced suicidal or homicidal thoughts, he did not have obsessive or ritualistic behavior. He has had a history of an inability to control his behavior and has reported outbursts of anger or irritability; however, the record does not suggest that such problems interfere with his ability to function currently. In fact, he has been able to hold a full-time job as a welder. Indeed, the criteria for the 50 percent rating specifically refer to disturbances akin to those experienced by the veteran- problems with motivation and mood, difficulty in establishing and maintaining effective relationships, etc. Although he has had problems with social isolation, such problems have not resulted in deficiencies in most areas. Consequently, the Board finds that his symptoms are more akin to those contemplated by the 50 percent rating, not the 70 percent rating under the schedular criteria. 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). The absence of pertinent problems noted during the recent psychiatric evaluations as well as the recent determinations that the veteran has been able to maintain a full-time job and have not taken any time off due to his PTSD symptoms strongly suggest that the veteran is not experiencing that degree of impairment generally contemplated by the 70 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). Consequently, the Board finds that no more than a 50 percent rating is warranted. ORDER A 50 percent rating for PTSD is granted, subject to the laws and regulations governing the award of monetary benefits. MARK F. HALSEY Member, Board of Veterans' Appeals