Citation Nr: 0006547 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-17 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an increased evaluation for post-traumatic stress disorder (PTSD), currently evaluated as 70 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Hinton, Associate Counsel INTRODUCTION The veteran served on active duty from January 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (RO), which denied the benefit sought on appeal. A March 1997 rating decision assigned the veteran's PTSD a total disability rating under 38 C.F.R. § 4.29 (1999). That rating was made effective from October 22, 1996, the date of an informal claim for an increase based on hospitalization beginning that date. That rating decision also assigned a 50 percent evaluation effective from December 1, 1996. The veteran later appealed the September 1997 rating decision that continued the 50 percent evaluation. Subsequently, in a September 1998 statement of the case, the RO assigned a 70 percent evaluation, effective from December 1, 1996. There is no indication that the veteran has withdrawn his appeal for an increased rating for his PTSD. On a claim for an original or increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law. Therefore, it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue before the Board here is entitlement to a rating in excess of 70 percent for PTSD from December 1, 1996. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable determination of the veteran's claim has been obtained. 2. The service-connected PTSD is productive of incapacitating symptoms resulting in total occupational and social impairment. CONCLUSION OF LAW The criteria for a 100 percent evaluation for post-traumatic stress disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.125, 4.130, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is plausible and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (a claim of entitlement to an increased evaluation for a service-connected disability generally is a well-grounded claim). The Board is satisfied that all relevant evidence has been obtained with respect to this claim and that no further assistance to the veteran is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The Board has reviewed the entire record, and has found nothing in the historical record which would lead it to conclude that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of the remote clinical histories and findings pertaining to the disability for which entitlement to an increased evaluation is currently considered on appeal. 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2 (1999), the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). In accordance with 38 C.F.R. § § 4.1, 4.2 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of the service- connected disability at issue here. Disability ratings 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 (1999). 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 (West 1991); 38 C.F.R. § § 4.1, 4.10 (1999). Separate diagnostic codes identify the various disabilities. If there is a question as to which of two evaluations should 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). Effective November 7, 1996, VA amended several sections of the Rating Schedule in order to update the portion pertaining to mental disorders, to ensure that current medical terminology and unambiguous criteria are used. 38 C.F.R. §§ 4.125 to 4.130. The changes included redesignation of § 4.132 as § 4.130 and the revision of the newly redesignated § 4.130. Also effective November 7, 1996, the general rating formula for mental disorders was replaced with different criteria. And, in some instances the nomenclature employed in the diagnosis of mental disorders was changed to conform with the Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV), replacing DSM-III-R. Where the law or regulations change while a case is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). The Board notes, however, that the RO received the veteran's claim in December 1996, after the new regulations became effective. Therefore, only the revised regulations apply here. Under the general rating formula for mental disorders, a 100 evaluation is assigned when a mental disorder results in 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. A 70 percent evaluation is assigned 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); and an inability to establish and maintain effective relationships. The Board has reviewed the evidence of record for the veteran's service-connected PTSD. The recent clinical record includes VA and private medical records of treatment, and the reports of VA examinations in January 1997 and November 1998. In light of the reasoning set forth below and resolving reasonable doubt in the veteran's favor, the Board is of the opinion that a disability evaluation of 100 percent is warranted. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The veteran served in combat with a specialty of rifleman in Vietnam. While in Vietnam his awards include Vietnam Campaign Medal with device; Vietnam Service Medal with one star; Combat Action Ribbon; and Rifle Marksman Badge. He received training during service in land mine warfare and NCO small unit leadership. He filed his initial claim for service connection for PTSD in December 1996. The veteran was hospitalized by VA for approximately one month from October to November 1996 for complaints of severe PTSD symptoms, which on examination were found to include auditory, visual and olfactory hallucinations of Vietnam. The discharge summary report contains diagnoses of PTSD and severe alcohol dependence. The report indicated that the veteran's stress related to Vietnam combat. The report recorded a global assessment of functioning (GAF) of 60. During a January 1997 VA examination, the veteran reported that he had made substantial changes to his lifestyle since 1987, and for the last five years had lived on a remote hill in Jamaica in a cabin with an outside kitchen and bathroom. He had gotten rid of all of his material possessions in an attempt to live a more spiritual life and as an act of rebellion against society. He reported that he came back to the United States about three times per year to work and make money in a temporary position. He reported that he found employment very stressful, and indicated that he would have to psyche himself up when he went to a job. However, after ten days, he would feel rattled by the noises, became irritable and verbally aggressive, and frequently had flashbacks. He reported that he recently was asked to leave a job after four weeks because he had become verbally aggressive. He reported that he generally did not work past three weeks because of his problems. He complained that his mood was angry and depressed. He complained of having suicidal ideation but denied any intent or plan to act on this. He complained of hyperarousal and startle responses, as well as nightmares, night sweats, loss of appetite, decreased concentration and occasional olfactory hallucinations regarding Vietnam. He reported emotional lability, and intrusive distressing recollections of his combat experiences. During examination, the examiner found the veteran to be alert, fully oriented and cooperative during the interview. He dressed in an unkempt manner, with dirty pants, dirty hands, and a scraggly beard and long dreadlocks. His thoughts were logical, organized and productive. There was some evidence of delusion, in that the veteran compared himself to Christ, and complained of olfactory hallucinations. His affect was blunted and did not reflect complaints of anger and depression. His memory appeared intact. The examiner concluded that the veteran continued to meet the diagnostic criteria for PTSD in that he persistently re-experienced trauma-related stimuli, persistently avoided such stimuli, experienced a numbing of general responsiveness, and experienced symptoms of hyper-arousal. The examiner also noted that daily use of marijuana and occasional alcoholic binges were also problematic. The report contains diagnoses of PTSD, cannabis abuse, and history of alcohol abuse. The report recorded a GAF of 51. Private medical records from April 1997 through September 1997 reflect treatment during that time for complaints of PTSD symptoms. An April 1997 intake sheet reflects that the veteran reported he was unemployed and in despair, and that he felt depressed and was irritable and critical of his wife. He reported nightmares of Vietnam, and panic attacks. The clinical impression at that time indicated that there was evidence of symptoms including reexperiencing trauma, social isolation, anxiety attacks, nightmares, emotional numbing and depression. On this basis the diagnosis was PTSD. In a July 1997 statement, George J. Kamps, ACSW, CICSW, discussed the veteran's symptomatology, and opined that the veteran's PTSD symptoms were severely impairing him both socially and vocationally. A private August 1997 disability report shows findings of mental status evaluation and psychometric appraisal. That report concluded with an assessment that the veteran appeared to meet the criteria for PTSD, with a very sporadic work history over the previous several years; a history of alcohol dependence, in partial sustained remission; and a history of cannabis abuse. The examiner opined that the veteran was considered extremely socially isolated, and in physical appearance was quite unkempt and antisocial. The report contains diagnostic impressions of PTSD, chronic, delayed onset; major depression, recurrent, moderate; cannabis abuse; and alcohol dependence, sustained, partial remission. The report recorded a GAF of 51, presently; and 58 in the past year. A private September 1997 report of functional capacity assessment noted that the veteran presented with diagnoses of PTSD; major depression, moderate; and severe alcohol dependence and cannabis abuse. The examiner noted that the veteran only recently started treatment, and had a good work history with 20 years of substantial earnings working as an itinerant boilermaker, in-between extensive stays living in Jamaica. The examiner recorded that the veteran displayed both a "damaged veteran" persona as well as that of a Jamaican islander, either of which he was able to switch on and off at will. He was abusive to his family while being helpful with natives in Jamaica. The report noted findings from recent testing, which showed that the veteran was found to be of average intelligence, and his memory and his concentration were intact. His affect did not reflect his claimed rage and depression. VA medical records show that the veteran was hospitalized for a PTSD program in October and November 1997. During that hospitalization, the veteran underwent an initial psychological evaluation in November 1997. He reported symptoms of PTSD, anxiety and depression; and reported experiencing confusion, flashbacks, and panic attacks from his time in Vietnam. On mental status examination, he was alert, cooperative and oriented. He manifested a flat affect, with depressed mood. No current hallucinations or delusions were noted, but some paranoid ideations were shown. He had mild short-and long-term memory impairment. He denied any current suicidal or homicidal ideation. The evaluation report contains diagnostic impressions of PTSD; cannabis abuse; alcohol abuse; depressive disorder not otherwise specified. The report indicated that the veteran was homeless, unemployed, had inadequate social support. The initial psychological evaluation report shows a GAF of 30 (on admission). At the end of the veteran's hospitalization, the November 1997 final summary report recorded a GAF of 50. During an October 1998 hearing, the veteran testified regarding his PTSD related symptomatology and its affect on his life. During a November 1998 VA examination, the veteran reported that he and his wife were living together in an apartment, and he had been out of work for two years. He reported using marijuana and that he was an alcoholic but had not drank alcohol for three years. He described himself as impatient and intolerant, and said that he did not like the person he had become. He discussed how he had asked his wife to kill him. He discussed difficulties he had with employment. He became rattled when people called regarding a job, and it was hard to work for people he did not respect. He indicated that he was able to work only because in working for a union, he was able to work with different people for short time periods needed to perform a specific temporary boiler job. On objective examination, he was found to be dressed in torn and dirty jeans, with beard and long hair seemingly pasted together into braids. He had an unusual appearance. He was found to be rational, coherent, logical, relevant and goal directed in thought. He portrayed himself as isolated and unable to tolerate or trust others who could control his life. The examiner indicated that the veteran appeared to be nonconforming in appearance and lifestyle; and did not report severe experiences of mood disorder or psychotic phenomenon. The veteran complained of feeling tense and reported recurrent stomach problems for years. He indicated that he had some difficulties in short and long-term memory. He appeared to be functional cognitively, effective in communication; and capable of relating to others, in a non- threatening, understanding, and tolerant setting. He denied suicidal thoughts and tensions. He was concerned about possibly losing control of his anger with his wife. The report contains diagnoses of chronic, moderate PTSD; cannabis abuse; and alcohol abuse by history, in good remission. The report recorded a GAF of 51. There are various private and VA medical records reflecting treatment in the late 1990's through December 1998 for different medical conditions and disorders. There are also several lay statements attesting as to the veteran's psychiatric symptomatology. In a statement from his wife, she indicated that he had bouts of explosive anger, would scream in his sleep and had night sweats. She attested that due to his anger, he had lost all of his friends and avoided going to the grocery store. They had no meaningful conversations, and she described the veteran's very poor relationships within his family due to his symptoms. In statements from two people he dealt with when he had worked, they indicated that the veteran did not get along with fellow workers and had verbal confrontations with them and supervisors, leading to dismissal from jobs. His violent nature also resulted in early terminations from many jobs. Generally, his inability to conform placed a heavy burden on co-workers that affected the completion of jobs. After a careful review of the record, and after resolving reasonable doubt in the veteran's favor, it is the judgment of the Board that the record supports a 100 percent evaluation for his service-connected PTSD. In this regard, the Board has taken careful note of the medical opinion that the veteran's PTSD includes symptoms that were severely impairing him socially and vocationally. The veteran's symptoms have included auditory, visual and olfactory hallucinations about Vietnam; nightmares and night-sweats; flashbacks and intrusive distressing recollections of Vietnam; hyperarousal and startle responses; suicidal ideation; a socially isolated and antisocial lifestyle; and difficulties with employment and family relations. As recently as 1997, he underwent hospitalization in a PTSD treatment program, when he was described as homeless and unemployed, and that he manifested a flat affect with depressed mood. At that time he had some paranoid ideations, showed mild short-and long-term memory impairment; and was assigned a GAF of 30 on initial psychological evaluation. During the November 1998 VA examination, the most recent GAF of 51 was recorded. During that examination he was diagnosed with chronic, moderate PTSD. Even during that examination, however, he discussed his difficulties with employment, and how he had asked his wife to kill him. The record shows that the veteran has trouble with social functioning, and difficulty with people and relationships, which has led to vocational and family relationship difficulties. The record indicates that he has great difficulty, if possible at all, in holding a job, and that he was only able to work due to the nature of his union membership. Through his union membership, from which he apparently could not be fired, he was assigned short-term contract jobs with different contractors to work on specific boilers away from home. The record indicates that these jobs generally ended after a few weeks with dismissal, due to his PTSD related anger and other antisocial symptoms. It is apparent from the record that the veteran would have great difficulty in holding a permanent position due to the severity of his PTSD symptoms. In fact, at his November 1998 examination, he had been out of work for two years. Lay statements from his wife and others have attested to his unpredictable and potentially explosive behavior. Even his consistent personal appearance at VA examinations, which was quite unkempt and antisocial, with torn and dirty jeans, and beard and long hair seemingly pasted together into braids, reflects an inability to perform basic activities of daily living including maintenance of personal hygiene. His grossly inappropriate behavior both occupationally and socially, has been severely destructive to both his occupational pursuits and family and other social relationships. The GAF for his PTSD has been recorded recently as low as 30 in 1997, which reflects behavior considered influenced by delusions or hallucinations, or serious impairment in communications, or an inability to function in most areas. On review of the entire record, the Board finds that the veteran's symptomatology is productive of incapacitating symptoms resulting in total occupational and social impairment. Therefore, after reviewing the total clinical record and resolving any remaining reasonable doubt in the appellant's favor, a 100 percent evaluation is assigned. ORDER A 100 percent rating for post-traumatic stress disorder, is granted, subject to controlling regulations governing the payment of monetary benefits. F. JUDGE FLOWERS Member, Board of Veterans' Appeals