Citation Nr: 0001365 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 94-25 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an increased evaluation for post-traumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M.S. Lane, Associate Counsel INTRODUCTION The veteran served on active duty from October 1966 to August 1970, from November 1970 to July 1972, from July 1974 to December 1974, from June 1975 to June 1979, and from January 1982 to January 1986. This matter comes to the Board of Veterans Appeals (Board) on appeal from an August 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that this case has previously come before the Board on appeal. In an August 1996 decision, the Board denied entitlement to an increased rating for PTSD. The veteran then filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). While the case was pending at the Court, the VA Office of General Counsel and the veteran's attorney filed a joint motion for remand, requesting that the Court vacate the Board's August 1996 decision and remand the issue of entitlement to an increased evaluation for PTSD for further development and readjudication. In March 1997, the Court granted the joint motion, vacated the Board's August 1996 decision and remanded the case to the Board for compliance with directives that were specified by the Court. In February 1998, the Board remanded the veteran's claim of entitlement to an increased evaluation for PTSD to the RO for further evidentiary development and for readjudication in light of the Court's directives. The requested development was completed, and the RO issued a Supplemental Statement of the Case in June 1999 in which it granted an increased rating of 50 percent for the veteran's service-connected PTSD. In AB v. Brown, 6 Vet. App. 35 (1993), the Court held that on a claim for an original or increased rating, the veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. In this case, the veteran has continued to express disagreement with the assigned disability rating. FINDING OF FACT The evidence shows that the veteran is unable to obtain or retain employment due to his service-connected PTSD. CONCLUSION OF LAW The schedular criteria for a 100 percent evaluation for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3, 4.130, Diagnostic Code 9400 (1999); 38 C.F.R. § 4.132, Diagnostic Code 9400 (1996). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board concludes that the veteran's claim is well grounded within the meaning of the statutes and judicial construction. See 38 U.S.C.A. § 5107(a) (West 1991). When a veteran claims that he has suffered an increase in disability, or that the symptoms of his disability are more severe than is contemplated by the currently assigned rating, that claim is generally considered well grounded. Bruce v. West, 11 Vet. App. 405, 409 (1998); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). Upon the submission of a well-grounded claim, the VA has a duty to assist the veteran in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107. As noted above, this case was remanded in February 1998 for additional evidentiary development, which was completed by the RO. There is now ample medical and other evidence of record, the veteran has been provided with a recent VA psychiatric examination, and there is no indication that there are additional records that have not been obtained and which would be pertinent to the present claim. Thus, no further development is required in order to comply with VA's duty to assist as mandated by 38 U.S.C.A. § 5107(a). Factual Background In February 1991, a VA psychiatric evaluation was conducted. The veteran reported that he was experiencing "total depression" and that he was "angry 99% of the time." Upon examination, the VA psychiatrist concluded that the veteran's adjustment appeared satisfactory, but near the margin, and that he reportedly worked only occasionally. The VA psychiatrist noted that the veteran responded rather sardonically to the fact that he had no social life and reportedly avoided people in general. The VA psychiatrist noted that there was no evidence of hallucinations, paranoia, or ideas of persecution, and that the veteran interacted appropriately with him. The VA psychiatrist assigned a Global Assessment of Functioning Score (GAF) of 70, which the VA psychiatrist noted to be the veteran's best over the previous twelve months. VA outpatient treatment records dated between April 1992 and September 1992 reflect ongoing psychological counseling for PTSD. Several psychologists noted the veteran experienced flashbacks, nightmares, depression, and difficulty with anger control. In June 1992, the veteran reported that his business was doing well, but that he felt that he was waiting "for the other shoe to drop." In February 1993, the veteran was provided with a personal hearing at the RO. He testified that since 1987, he has not been able to maintain long-term employment anywhere due to his PTSD. He also testified that he has difficulty concentrating and that he has trouble getting along with people. The veteran indicated that he experiences flashbacks, nightmares, and depression, and that he jumps very easily at loud noises. A medical report from Beaumont Hospital shows that the veteran was admitted for treatment on November 12, 1993 after he was found lying on the ground in a parking lot, awake but confused. The veteran was reportedly unable to answer simple questions and the treating physician noted that he was positive for alcohol on his breath and dry blood on the side of his face. The physician noted a past medical history significant for "post Vietnam stress disorder." After several hours, the veteran reportedly became agitated and tried to leave, at which point he was placed in restraints. The veteran was discharged on November 15th, with follow-ups planned throughout the next several weeks. In an August 1996 decision, the Board denied the veteran's claim of entitlement to an increased rating for PTSD. The veteran then filed a timely appeal to the Court. While the case was pending at the Court, the VA Office of General Counsel and the veteran's attorney filed a joint motion for remand, requesting that the Court vacate the Board's August 1996 decision and remand issue of entitlement to an increased evaluation for PTSD for further development and readjudication. The joint motion states that the Board failed in its August 1996 decision to provide adequate reasons and bases regarding why the veteran was not entitled to an increased rating for his PTSD. The joint motion also states that the Board failed to consider evidence in the record regarding the veteran's employability and whether he was entitlement to a total rating based on individual unemployability due to PTSD under 38 C.F.R. § 4.16(b) (1999). The joint motion further states that upon remand, the veteran would be entitled to have his claim evaluated under the new criteria for PTSD, which became effective in November 1996. In November 1996, the veteran was provided with another VA psychiatric evaluation. The veteran reported that he was now living with his mother and that his last employment occurred two or three years ago, although he indicated that he could no longer keep track. He stated that he used to be able to read blueprints easily, but that he could no longer maintain his concentration or focus. The veteran indicated that he had been approved for Social Security disability benefits, but was unable to specify what diagnosis was the basis of the decision. Regarding his symptoms, the veteran reported that he often experienced flashbacks and memory loss, and that he experienced exaggerated startled response whenever he heard a loud noise. He described his short-term memory loss as being the "most exasperating" of his symptoms. The veteran further reported that he experienced problems concentrating and difficulty getting along with people. He also indicated that he affirmatively avoids any activities that might remind him of Vietnam and that he often felt detached and estranged from other people. The VA psychiatrist noted a GAF score of 60. In March 1997, the Court granted the joint motion, vacated the Board's August 1996 decision and remanded the case to the Board for compliance with directives that were specified by the Court. In February 1998, the Board remanded the veteran's claim of entitlement to an increased evaluation for PTSD to the RO for further evidentiary development and for readjudication in light of the Court's directives. Specifically, the Board instructed that the RO provide the veteran with another VA psychiatric examination and a VA social and industrial survey. The Board further instructed that the RO obtain any medical records used by the Social Security Administration in deciding the veteran's claim for benefits. In July 1998, the RO received the veteran's file from the Social Security Administration. Included in this file is an August 1992 psychiatric evaluation conducted by Dr. S.O., a psychiatrist for the Social Security Administration. During this examination, the veteran reported that he had divorced his wife of 23 years in 1989, and that he blamed himself for their marriage problems. The veteran explained that he had a difficult time holding a steady job during their marriage, and a difficult time adjusting to life in general after he was discharged from the Army. He indicated that he had last worked over two years before when he had his own company for servicing and repairing fuel tanks. The veteran stated that the job had not worked out because he made too many mistakes and forgot to do things, which caused him too lose his business. He indicated that he had previously worked for Chrysler and another pump repair shop, but that he left both of those jobs after having conflicts with supervisors. The veteran also reported a history of several arrests following fights and a long history of binge drinking, which reportedly ended two years before but had been followed by several relapses. Upon examination, Dr. S.O. noted that the veteran spoke in a loud angry tone of voice, with a moderate amount of spontaneity and productivity. Dr. S.O. noted that the veteran reported memory problems and a history of depressive episodes, during which he experienced pain and suicidal thoughts. Dr. S.O. found that the veteran's affect appeared moderately depressed with an element of anger. A history of nightmares and flashbacks to Vietnam was noted, and the veteran reportedly described having exaggerated reactions to noise. Dr. S.O. diagnosed the veteran with PTSD and noted a GAF score of 45. Dr. S.O. also noted that the veteran's prognosis was poor. Also included in the veteran's Social Security file was a second psychiatric evaluation conducted by Dr. S.O. in May 1993. During this evaluation, the veteran reported that he had worked for six months as a janitor but had left that job because of too much pressure. He also reported that his relationship with his ex-wife was such that "I don't bother her, she doesn't bother me," and that there was no longer a relationship between him and his children because he had disappointed them too many times. Dr. S.O. indicated that while the veteran was cooperative throughout his interview, he tended to be loud, angry, and somewhat intimidating at times with his attitude. Dr. S.O. noted that the veteran appeared suspicious, and that he reported experiencing nightmares, memory loss, and temper tantrums. The veteran reported that he had a vicious temper and often got into fights with people. Dr. S.O. again noted a GAF score of 45 and indicated that the veteran's prognosis was poor. In August 1998, another VA psychiatric evaluation was conducted. The veteran reported that he still lived with his mother and that he usually avoided contact or interaction with other people. The veteran stated that he had last tried to work about four months before, when he started doing some minimal assembly line work for a temporary agent. This job reportedly only last for four days, at which time the veteran apparently became angry and "blew up" at his supervisor. The veteran also stated that since his last VA examination, he had not received any further outpatient treatment. Upon examination, the VA psychiatrist concluded that a GAF score of 45 was appropriate, which reportedly represented a serious impairment in social and occupational functioning. The VA psychiatrist concluded that the veteran was unable to hold a job and that he had problems with social interaction due to both his PTSD and alcohol dependence. The VA psychiatrist also concluded that although alcohol dependence played a role in his impairment, a GAF score of 45 would be similar even without alcohol dependence, as his PTSD symptoms have led to serious vocational and social impairment for several years. In August 1998, a VA social and industrial survey of the veteran was also conducted. The VA social worker concluded that the veteran's PTSD, poor interpersonal skills, ongoing nightmares, low frustration tolerance, and decreased ability to handle stressful situations severely limit his future employability. In an addendum to his report dated in May 1999, the VA psychiatrist who had examined the veteran in August 1998 indicated that it was at least as likely as not that the veteran's alcohol dependence was secondary to his PTSD and that the major potion of his social and industrial impairment stemmed from psychiatric symptoms related to his PTSD. Relevant Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (1999). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2 (1999), which require the evaluation of the complete medical history of the veteran's condition. 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (1998). All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (1998). The Board notes that effective November 7, 1996, during the pendency of this appeal, the VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating mental disorders, including PTSD. 61 Fed. Reg. 52695 (Oct. 8, 1996) (codified at 38 C.F.R. § 4.130). Because the veteran's claim was filed before the regulatory change occurred, he is entitled to application of the version most favorable to him. See Karnas v. Derwinski, 1 Vet. App. 308, 311 (1991). In the instant case, the RO provided the veteran notice of the old regulations in a August 1991 Statement of the Case and notice of the new regulations in a June 1999 Supplemental Statements of the Case. Thus, the Board finds that it may proceed with a decision on the merits of the veteran's claim, with consideration of the original and revised regulations, without prejudice to the veteran. See Bernard v Brown, 4 Vet. App. 384, 393-394(1993). Before November 7, 1996, the VA Schedule read as follows: General Rating Formula for Psychoneurotic Disorders: 100% The attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. Totally incapacitating psychoneurotic, symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior. Demonstrably unable to obtain or retain employment. 70% Ability to establish and maintain effective or favorable relationships with people is severely impaired. The psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. 50% Ability to establish or maintain effective or favorable relationships with people is considerably impaired. By reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Under the old regulation, the finding of only one of the criteria listed for a particular rating in Diagnostic Code 9400 may be sufficient to support the assignment of that rating. Johnson v. Brown, 7 Vet. App. 95, 97 (1994). Accordingly, the Board has considered whether the veteran would be entitled to a 100 percent evaluation, the maximum rating available under either code, based upon demonstrable inability to maintain employment. After carefully reviewing the evidence of record, the Board finds that the veteran has presented competent evidence demonstrating that his PTSD is of such severity that he is currently unable to retain employment. The psychiatric reports of record support a conclusion that the veteran suffers from severe PTSD which is manifested through a wide variety of symptoms, including memory loss, impaired judgment, depression, exaggerated startled response, and anger outbursts with a history of violent behavior. The Board finds the August 1998 psychiatric examination to be particularly probative, as the VA psychiatrist specifically concluded the veteran was unable to maintain employment due to his PTSD. The Board finds this to be consistent with the VA social and industrial survey performed that same month in which a VA social worker concluded that the veteran's employability was severely impaired by his PTSD. The Board further finds that this is also consistent with the earlier psychiatric evaluations performed by Dr. S.O., who concluded that the veteran's prognosis was poor and that a GAF score of 45 was appropriate, which is indicative of serious impairment in social and occupational functioning The Board recognizes that on several occasions the veteran has been assigned GAF scores of 60 and 70, which are indicative of only mild or moderate impairment in social and occupational functioning. However, in light of the veteran's severe symptomatology and continued unemployment despite several attempts to find work, the Board believes that the preponderance of the evidence supports finding that the veteran's PTSD is of such severity that it prevents him from maintaining any form of gainful employment. Specifically, the Board finds that although some fluctuation is evident in the veteran's psychiatric condition, the competent and probative evidence demonstrates that the veteran's PTSD is generally manifested by serious impairment in social and occupational functioning. The Board also recognizes that the veteran's occupational impairment has been attributed in part to alcohol dependence and that the law provides that no compensation may be paid for a disability which results from the veteran's own willful misconduct or abuse of alcohol or drugs. Section 8052 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101- 508, § 8052, 104 Stat. 1388, 1388- 351; 38 U.S.C.A. § 105 (West 1991); 38 C.F.R. §§ 3.1(n), 3.301(c) (1998). However, in this instance, the Board believes that the August 1998 VA psychiatrist and the other medical examiners of record have directly attributed the veteran's most prominent symptoms, such as violent outbursts, to his PTSD rather than to his alcoholism. Furthermore, the Board notes that the August 1998 VA psychiatrist specifically concluded that the veteran's GAF score of 45 would be similar even without his alcohol dependence problem in that his PTSD symptoms have led to serious vocational and social impairment for several years. Thus, the Board believes that the granting an increased rating of 100 percent for PTSD in this case would not violate the prohibitions found in the law and VA regulations. In summary, the Board believes that competent and probative evidence of record strongly supports a finding that the veteran's PTSD is of such severity that it prevents him from maintaining any form of gainful employment. Thus, the Board finds that the old criteria for an evaluation of 100 percent have been met. Johnson, 7 Vet. App. at 97. Furthermore, because a 100 percent evaluation has been granted under the old criteria, the Board finds that consideration of the veteran's disability under the new criteria of 38 C.F.R. § 4.130, Diagnostic Codes 9411 (1999) has been rendered moot. Additional Matter As discussed above, the joint motion states that the Board failed in its August 1996 decision to consider whether the veteran was entitled to a total rating based upon individual unemployability under 38 C.F.R. § 4.16(b). Although the Board instructed the RO to consider this issue in its February 1998 remand, the record does not reflect that the RO has ever issued a decision regarding this issue. Nevertheless, the Board finds that in light the favorable decision reached in this case, granting a total schedular rating for PTSD, the issue of entitlement to total rating based on individual unemployability has been rendered moot. See Green v. West, 11 Vet. App. 472 (1998). Thus, the issue of total rating based on individual unemployability due to a service-connected disability need not be further addressed or remanded by the Board to the RO for further development. ORDER An increased evaluation of 100 percent for the veteran's PTSD is granted, subject to the regulations governing the payment of monetary awards. Barry F. Bohan Member, Board of Veterans' Appeals See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) [GAF is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.), p.32.] GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Words such as "considerable" and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just". 38 C.F.R. 4.6 (1998). It should also be noted that use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. §§ 4.2, 4.6 (1998).