Citation Nr: 0001393 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 94-25 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an increased evaluation for post-traumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. 2. Entitlement to a total rating based on individual unemployability. 3. Entitlement to an effective date earlier than March 1992 for the assignment of an increased disability rating for PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and D.S. ATTORNEY FOR THE BOARD Vito A. Clementi, Counsel INTRODUCTION The appellant had active duty from June 1968 to August 1970, including service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Buffalo, New York Department of Veterans Affairs (VA) Regional Office (RO). In September 1999, the appellant presented testimony before the undersigned at a Board hearing. Having reviewed all relevant lay and medical evidence of record, the Board is of the opinion that these matters are ready for appellate review. FINDINGS OF FACT 1. The evidence shows that the appellant is unable to obtain or retain employment due to his service-connected PTSD. 2. The appellant's claim for an increased disability rating was received on March 16, 1992. CONCLUSIONS OF LAW 1. The schedular criteria for a 100 percent evaluation for PTSD have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). 2. The establishment of an effective date earlier than March 16, 1992 for an increased disability rating for PTSD is not appropriate. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant contends that his service-connected PTSD is more disabling than is contemplated by the currently assigned rating. The appellant further contends that as a result of his service-connected disorder, he is totally disabled and unemployable. He further argues that the effective date for the assignment of an increased rating should be November 1990, the date he first sought service connection for PTSD, or 1989, the date he was found to be disabled by the Social Security Administration. By law, the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990); 38 U.S.C.A. § 7104(d)(1) (West 1991). With this requirement of law, and in light of the appellant's contentions, a brief factual review of the evidence of record as found in the appellant's claims folder would be helpful to an understanding of the Board's decision. Because the evidence of record as it pertains to each of the appellant's claims is essentially the same, the Board will review the evidence of record in its totality and discuss each of the appellant's claims separately in the context of the applicable law. Factual and procedural background The record reflects that the appellant first sought service connection for PTSD by application received in January 1990. In a September 1990 VA examination report, the appellant stated that he had a "short temper," and that he "got into trouble very fast." He reported that he had "some nightmares" about Vietnam, and that he was then undergoing treatment for alcohol dependence and marijuana use. Upon clinical status evaluation, he was noted to be coherent and goal-directed and there were no psychotic thought processes noted. He denied any depressive symptoms, suicidal ideas or hallucinations. In a VA social survey report, the examiner opined that the appellant had PTSD "to a rather severe degree." By rating decision dated in November 1990, service connection was granted and a 10 percent disability evaluation was assigned, effective January 5, 1990, the date of the appellant's initial claim of entitlement to service connection for PTSD. In due course of appellate proceedings following the receipt of the appellant's timely filed notice of disagreement in February 1991, the Board denied an increased disability evaluation in January 1992. Following receipt of the appellant's request for such action, the Board Chairman denied reconsideration of the Board's decision on January 31, 1992. By application received in March 1992, the appellant sought an increased disability rating for the service-connected PTSD. Medical records were then obtained reflecting continuing treatment for PTSD. In March 1992, the appellant was noted to have then recently been released from prison after serving a sentence for assault and driving while intoxicated. It was noted that the appellant was then living alone; that he had "isolated" himself, and that he felt depressed and concerned that he might "lose control." The medical care provider noted that the appellant had recently been barred from membership in a trade union and from working because he had lost several jobs because of his rage attacks. It was noted that on one occasion, the appellant had dropped a heavy wrench on a fellow worker, after the latter had "infuriated him." A chronological note dated later that month indicated that the appellant reported difficulty sleeping, concentrating, and that he had guilty feelings and was startled easily by loud noises. By rating decision dated in August 1992, a 30 percent disability evaluation was assigned, effective the date of the appellant's claim for an increased rating, March 1992. In his September 1992 notice of disagreement, the appellant challenged both the newly assigned rating and its effective date. In March 1993, a copy of a disability award from the Social Security Administration (SSA) was received. In part, it reflects that in October 1992, the appellant was deemed "disabled" within the applicable SSA statutes and regulations since September 1989. The SSA administrative law judge reported that in making this assessment, he found that the appellant had a personality disorder as well as PTSD. As to the latter, the administrative law judge noted that the appellant was reported to be experiencing recurrent and intrusive recollections of traumatic combat experiences which were a source of marked distress. It was noted that the appellant reported enjoying work as a "bouncer" in "seedy bars" where he could instigate altercations with patrons and eject them. The appellant underwent a VA psychiatric examination in December 1993. He was noted to be sleeping for only two hours per night, and that he had constant dreams and nightmares about Vietnam. He reported daily "flashbacks" and intrusive thoughts so as to periodically lose contact with reality. The appellant reported that he would lock himself in his home, and that he would experience hyper- alertive reactions. As to his diet, the appellant reported that he only ate cupcakes and "junk food." The examiner noted that the appellant had "very poor social and industrial adaptation," and the appellant was "only making a marginal adjustment in the community." In a March 1995 VA hospitalization report, the appellant was reported to have undertaken a suicide attempt approximately two years earlier. It was also noted that had recently been treated for a broken hip, sustained when was struck by a car. The incident had apparently been precipitated after the appellant "chased and challenged" the driver of the vehicle. By rating decision dated in March 1996, a 50 percent disability evaluation was assigned for PTSD. The assignment of an effective date earlier than March 1992 was denied. In a June 1996 letter, T.J.Z., M.A., reported that the severity of the appellant's disorder had continually worsened over the course of the previous 10 years to the point where he had not been able to function adequately in society, and that the appellant had serious emotional, social and industrial impairment. Mr. Z. reported that the appellant's condition was "guarded," and was contingent upon his continued treatment. Statements from the appellant's ex-wife and then current girlfriend were received in May 1996, and in substance reflect the makers' observations that the appellant had extreme mood swings, violent and unstable behavior, self- isolation from others, nightmares and flashbacks. The appellant was hospitalized from November to December 1996. His PTSD was then noted to be "chronic and severe." He admitted to having then recently sustained a broken nose after engaging in an altercation about his dog with three passersby in his neighborhood. The discharge summary further reflects that the appellant was noted to have the "full range" of PTSD symptoms. The appellant sought a total disability evaluation based upon individual unemployability by application received in December 1996. Additional documentation relating to the appellant's SSA award was received in July 1997. Besides duplicate copies of medical reports reviewed above, the SSA file contains medical reports generally reiterating the appellant's symptoms and their severity since September 1989. By rating decision dated in December 1997, a total disability evaluation based upon individual unemployability was denied. The appellant filed a timely notice of disagreement with this decision later that month. In an August 1998 VA medical treatment record, the appellant was noted to have chronic and severe PTSD. It was noted that the appellant was "an extreme case of PTSD," and that his prognosis was guarded and contingent upon continued treatment. The note further reflected that a recent inpatient hospitalization for PTSD had not reduced the appellant's symptoms. The appellant underwent a VA psychiatric examination in November 1998. In addition to previously noted symptoms and their severity, the appellant was reported to have been unable to maintain relationships with his former wife and then recent girlfriend. It was also noted that the appellant had been unable to maintain employment, as well as being unable to attend classes. A GAF score of 42 was assigned. The examiner commented that the appellant "has had severe difficulties dealing socially and occupationally since he returned to civilian life." The prior diagnosis of PTSD, and its assessment as being chronic and severe, was confirmed. In September 1999, the appellant testified before the undersigned at a Board hearing, and reiterated prior contentions. His description of his service-connected disability was consistent with the medical evidence reported above. Entitlement to an increased evaluation for PTSD, currently evaluated as 50 percent disabling Relevant law 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). The pertinent provision now reads as follows: General Rating Formula for Psychoneurotic Disorders: 100% Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of 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. 70% 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 worklike setting); inability to establish and maintain effective relationships. 50% 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; difficulty in establishing effective work and social relationships. Before November 7, 1996, the Schedule provided 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). Because the appellant'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 apprised the appellant of both the previously applicable and current regulations in various Statements and Supplemental Statements of the Case. The Board therefore finds that the appellant has been accorded due process and notice and it will therefore proceed with a decision on the merits of the appellant's claim, with consideration of the original and revised regulations. See Bernard v Brown, 4 Vet. App. 384, 393-394(1993). 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 appellant. 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 As is noted above, the record reflects that the appellant's current claim arose in March 1992, when he requested an increased rating for PTSD. A claim for a disability rating greater than assigned is subject to the well-groundedness requirement of 38 U.S.C.A. § 5107(a) (West 1991). In order to present a well-grounded claim for an increased rating of a service-connected disability, a veteran need only submit his or her competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation. See Proscelle v. Derwinski, 2 Vet. App. 629, 631-2 (1992); see also Jones v. Brown, 7 Vet. App. 134 (1994). The appellant has alleged that the symptoms of his service-connected disability are more severe than was previously reported. The Board thus concludes that the appellant has presented a well- grounded claim for an increased rating for his service- connected disorder. Under the previously applicable provisions, 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 appellant 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 as it pertains to the period since March 1992, the Board finds that the appellant 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 clearly reflect that the appellant suffers from severe PTSD which is manifested through a wide variety of symptoms, including impaired judgment, depression, exaggerated startled response, and anger outbursts with a history of violent behavior, and that through these symptoms the appellant is in virtual isolation from the community so as to render him demonstrably incapable of employment. In particular, the record demonstrates that the appellant has consistently been unable to maintain employment, and that his psychiatric disability has separated him from his wife, children, former girlfriends, and other persons. He is not able to attend school because of chronic and severe PTSD symptoms, and is has been medically reported to require constant and indefinite intensive psychiatric care. The GAF score of 42 which was assigned by the most recent VA psychiatric examiner is further indication of the severity of the appellant's service-connected PTSD. In summary, the competent and probative evidence of record strongly supports a finding that the appellant'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. Because a 100 percent evaluation has been granted under the old criteria, the Board finds that consideration of the appellant's disability under the new criteria of 38 C.F.R. § 4.130, Diagnostic Codes 9411 (1999) has been rendered moot. The Board notes in passing, however, that the criteria for a 100 percent rating under the current criteria have also arguably been met, in that the record is replete with evidence of total occupational and social impairment, due to such symptoms as "grossly inappropriate behavior; persistent danger of hurting self or others". Although it is clear that the appellant does not have all of the symptoms listed in the new criteria, the symptoms are listed as examples only. Overall the pathology exhibited by the appellant is closer to that which is consistent with the assignment of a 100 percent disability rating. See 38 C.F.R. §§ 4.7, 4.21 (1999). In summary, for the reasons and bases expressed above, the Board finds that the evidence of record allows the assignment of a 100 percent disability evaluation for PTSD. The benefit sought on appeal is accordingly granted. Entitlement to a total disability evaluation based upon individual unemployability 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. Entitlement to a date earlier than March 1992 for the assignment of an increased rating for PTSD Relevant law In general, the effective date of an evaluation and award of compensation will be the date of the receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date of an increased rating for a service-connected disability is the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date; otherwise, the date of the receipt of the claim. 38 C.F.R. § 3.400(o). See Swanson v. West, 12 Vet. App. 442 (1999); Scott v. Brown, 7 Vet. App. 184 (1994). Analysis As noted above, by Board decision dated in January 1992 a disability rating greater than 10 percent was denied. The appellant did not file an appeal to the United States Court of Appeals for Veterans Claims , and the Board's decision became final. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. The appellant's next request for an increased rating was received in March 1992. In a March 1996 RO rating decision, a 50 percent disability rating was assigned, effective from March 1992. The appellant has challenged the assigned effective date, contending that the effective date for an increased rating should be November 1990, the date of his initial claim of entitlement to service connection, or September 1989, the effective date of disability as determined by a Social Security Administrative Law Judge in an October 1992 decision. The Board finds that the effective date of an increased disability rating is appropriately established as March 1992, as it represents the date that the appellant's claim of entitlement to an increased rating for PTSD was received. The Board has not found any communication from the appellant after the Board's January 1992 denial of an increased rating and before his March 1992 claim for an increased rating which can be construed as a claim, formal or informal, for an increased rating. The appellant has pointed to no such communication. Although the appellant has contended that the effective date of the increased rating should be the date of the initial assignment of service connection for PTSD, the law and regulations governing the assignment of effective dates for service connection vary from those governing the assignment of effective dates for increased ratings. See 38 C.F.R. § 3.400(b),(o) (1999). In this case, in a November 1990 rating decision, service connection was granted and a 10 percent disability rating was assigned, effective January 1990. The appellant appealed the assigned disability rating. As indicated above, the Board denied the claim of entitlement to an increased rating in a final January 1992 decision. The appellant subsequently filed a claim for an increased rating in March 1992. The grant of the increased rating is effective as of the March 1992 date of filing. If there was evidence of record in the year before March 1992 which indicated that it was factually ascertainable that an increase in disability had occurred, assignment of an earlier date would be warranted under 38 C.F.R. § 3.400(o)(2) The Board has been unable to identify such evidence, and, with the exception of the October 1992 SSA decision, which was issued after March 1992, the appellant has pointed to no such evidence. The Board has considered whether the assignment of an earlier effective date would be warranted based upon the receipt of the SSA decision. As noted above, in March 1993, a copy of that agency's findings as to the appellant's disability was received, reflecting that in an October 1992 decision by a SSA Administrative Law Judge, the appellant was deemed "disabled" since September 1989 within the applicable SSA statutes and regulations. However, the SSA report does not avail the appellant because the report was not received by VA until March 1993, a year after the appellant filed his claim for an increased rating. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o). The Board further points out that the effective date of an increased rating is governed by relevant law and VA regulations, not the law pertaining to the effective date of the award of Social Security disability benefits. Cf. Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) The Board finds that an increase in the severity of the appellant's disorder was not factually ascertainable until March 1992. Coincident with receipt of the appellant's March 1992 claim for an increased disability rating, medical records were generated reflecting that the appellant had become isolated from family members and the community at large, and that he was effectively barred from employment because of his inability to manage his violent outbursts. As is noted above, a chronological note dated in March 1992 reflected that the appellant reported difficulty sleeping, concentrating, and that he had guilty feelings and was startled easily by loud noises. In conclusion, for the reasons and bases discussed above, the Board concludes that an effective date earlier than March 1992 for the assignment of an increased disability rating is no warranted. ORDER An increased evaluation of 100 percent for PTSD is granted, subject to the regulations governing the payment of monetary awards. An effective date earlier than March 16, 1992 for the assignment of an increased disability rating is denied. Barry F. Bohan Member, Board of Veterans' Appeals The Board notes that the appellant was at that time granted a temporary total disability rating based upon a period of hospitalization for the period from January 5, 1990 to March 1, 1990. See 38 C.F.R. § 4.29. 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 (1999). 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 (1999). As noted above, the appellant did file a motion for reconsideration of the Board's January 1992 decision, which was denied later in January 1992. See 38 C.F.R. § 20.1001.