Citation Nr: 0007344 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 94-49 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased disability evaluation for post traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Engle, Counsel INTRODUCTION The appellant served on active duty from April 1967 to April 1969. This case returns to the Board of Veterans' Appeals (Board) from a remand dated in July 1998. The requested development has been completed and the case has been returned for appellate consideration. This appeal originates from a decision dated in April 1994 by the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The appellant's PTSD is manifested by a blunted mood and a constricted range of affect with high intensity, circumstantial conversation deemed overly inclusive of irrelevant and minute details, an inability to maintain train of thought and suicidal ideation with no plan and is productive of a global assessment of functioning (GAF) score between 45 and 55, representative of moderate to serious impairment in social and occupational functioning. CONCLUSION OF LAW The schedular criteria for a 50 percent disability evaluation for PTSD are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant's claim to an increased disability evaluation for PTSD is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Specifically, his assertions regarding the increase in severity of his service-connected psychiatric disorder viewed in light of the medical evidence of record is deemed sufficient to well ground this claim. See Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992) (where a veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well grounded claim for an increased rating). The Board notes that the appellant's service-connected psychiatric disability was previously evaluated as a generalized anxiety disorder. However, in light of various psychiatric diagnoses of record and the appellant's assertions regarding PTSD, this case was remanded in July 1998 in an effort to clarify the psychiatric diagnosis and to determine the nature and extent of that disorder. As a consequence of the July 1998 remand, the appellant underwent a series of VA psychiatric examinations. In December 1999, after thorough review of the record including previous VA psychiatric examinations in May and June 1999, the appellant's diagnosis was determined to be PTSD. The Board notes that both anxiety and PTSD are rated pursuant to the same diagnostic criteria under anxiety disorders, series 9400-9413. Since all of the appellant's symptoms are contemplated by this diagnostic series, for which only one evaluation is possible, the identification of PTSD as the appellant's major psychiatric disability by the RO is appropriate and the change from the diagnosis of generalized anxiety to PTSD is not deemed to be prejudicial. See also 38 C.F.R. § 4.14 (1999). During the pendency of this appeal, the applicable rating criteria for mental disorders, 38 C.F.R. § 4.125 et seq., was amended effective November 7, 1996. See 61 Fed. Reg. 52,695 (October 8, 1996). Pursuant to VAOPGCPREC 11-97, where a regulation is amended during the pendency of an appeal to the Board, the Board must first determine whether the amended regulation is more favorable to the claimant than the prior regulation, and, if it is, the Board must apply the more favorable provision. See Dudnick v. Brown, 9 Vet.App. 397 (1996)(per curiam); Karnas v. Derwinski, 1 Vet.App. 308 (1991). In view of these circumstances, the Board will evaluate the appellant's claim pursuant to the pre-November 1996 criteria and the post-November 1996 criteria. According to the criteria in effect prior to the November 1996 change, a 10 percent disability evaluation is warranted for symptoms less than the criteria for a 30 percent evaluation with emotional tension or other evidence of anxiety productive of mild social and industrial impairment. A 30 percent evaluation is warranted for definite impairment in the ability to establish or maintain effective and wholesome relationships with people. The psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. A 50 percent disability evaluation is warranted where the ability to establish or maintain effective or favorable relationships with people is considerably impaired and by reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. Where the ability to establish and maintain effective or favorable relationships with people is severely impaired and the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment, a 70 percent disability evaluation is warranted. Where the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community, there are 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 or the appellant is demonstrably unable to obtain or retain employment, a 100 percent disability evaluation is warranted. The United States Court of Veterans' Appeals (Court) held in Johnson v. Brown, 7 Vet. App. 95 (1994), that the criteria in 38 C.F.R. § 4.132, DC 9411 for a 100 percent rating are each independent bases for granting a 100 percent rating. The post-1996 criteria provide that 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; memory loss for names of close relatives, own occupation, or own name. A 70 percent evaluation is appropriate where 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 worklike setting); inability to establish and maintain effective relationships. A 50 percent evaluation is warranted where 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 and maintaining effective work and social relationships. A 30 percent evaluation is warranted where 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, mild memory loss (such as forgetting names, directions, recent events). A 10 percent evaluation is warranted where 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 controlled by continuous medication. (38 C.F.R. Part 4, Diagnostic Code 9411 (1999). After careful review of the evidence of record, the Board concludes that entitlement to a 50 percent disability evaluation for PTSD is warranted. In reaching this conclusion, particular emphasis is placed upon the findings noted on VA outpatient treatment reports dated from 1996 to 1999 and on VA psychiatric examinations conducted in May, June and December 1999. It is significant to note that these reports document that the appellant's psychiatric impairment increased in severity over time and the June 1999 VA psychiatric examination is considered to be the most recent evidence of the level of severity of the PTSD. In addition, the Board places significant emphasis upon the psychiatric examiner's evaluation of the appellant's level of functioning as identified by the assignment of a GAF score. The GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet.App. 240 (1995), citing American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. Washington, DC, American Psychiatric Association, 1994. (DSM-IV) The medical evidence of record reflects that the appellant's PTSD was considered to be mild to moderate in nature through 1996. A VA outpatient counseling report dated in January 1996 noted that the appellant was experiencing some anxiety but that it was under control. It was further noted that his situational stress was at a minimal level. On VA psychiatric examination in June 1996, the appellant was restless, anxious and shaking all of the time. He initially had rambling speech with some anxiety or speech impediment which improved during the course of the examination. His affect was appropriate and mood was neutral. He reported complaints of nightmares but could not remember any auditory hallucinations. He was considered to be oriented and his memory was fair. Calculations and similarities were good and his judgment and insight were fair. The diagnosis was PTSD and the GAF score was 65, reflective of some mild symptoms with some difficulty in social and occupational functioning. VA outpatient counseling reports dated in 1997 reflect that the appellant's psychiatric disorder was considered to be stable and his situational stress continued to be at a minimal level. However, outpatient treatment reports dated in 1998, note that the appellant reported increased complaints of tremulousness and anxiety and GAF scores between 45 and 50 were noted. On VA psychiatric examination in May 1999, the appellant reported that he was nervous all of the time. He indicated that he experienced chronic anxiousness, was easily fatigued, irritable and had difficulty sleeping on occasion. He further noted that he was easily distracted and that his dreams always involve something going wrong. In addition, he indicated that he shuns people. On mental status examination his mood was not good and his affect was anxious and consistent with his mood. His thought processes were coherent and content was negative for any suicidal or homicidal ideations. The examiner commented that the appellant has been anxious for some time and has been on Xanax for years. It was further noted that the appellant experienced stress related to his chronic anxiety and that his GAF score was 55. On VA psychiatric examination in June 1999, the appellant reported difficulty working due to his psychiatric symptomatology. He indicated that his condition had become worse with increased tremulousness and more flashbacks of Vietnam. He noted that on stressful days, television programs triggered flashbacks and that whenever he became nervous, he was unable to concentrate. He reported that he was experiencing more difficulty with coworkers and his employer and that he has had to change jobs on many occasions at the employer's request. He stated that he had difficulty sleeping and trouble controlling his temper. He further noted that he had become absent minded and forgetful and frequently must make two trips to get what he generally goes for because of the difficulty with his memory. He reported that he cannot experience happiness and does not do anything for fun or relaxation. On mental status examination the appellant's grooming and hygiene were considered to be fair. The appellant nervously shook his leg throughout the interview. His attitude was socially appropriate but he appeared flat and his mood was blunted. His speech was spontaneous with a low, soft, tremulous tone and conversation was moderate in amount, primarily about his military experiences. He exhibited a constricted range of affect with high intensity. His conversation was circumstantial and overly inclusive of irrelevant and minute details. He frequently lost his train of thought and would end up talking about something totally unrelated to the examiner's questions. He admitted suicidal thoughts but denied any specific plan. There were no other events of delusional thinking or hallucinatory experiences. The appellant was considered to be able to set priorities and make appropriate decisions to common problems of daily living. He seemed capable of managing his financial affairs without any assistance. The diagnosis was PTSD. The examiner further commented that the anxiety and tremors appeared to be directly related to the PTSD. The GAF score was 50 and the examiner noted that the appellant exhibited few friends, conflicts with coworkers, circumstantial speech and impairments in occupational functioning. When viewed in light of the previously listed criteria, both old and new, the undersigned concludes that the evidence summarized above supports entitlement to a 50 percent disability evaluation. However, these findings are not deemed to meet the criteria for an evaluation in excess of 50 percent. The appellant's GAF scores over the past several years have been between 45 and 55, reflective of moderate to serious impairment in social and occupational functioning; however, the VA examiner in June 1999 noted that the appellant was considered to be able to set priorities and make appropriate decisions as to common problems of daily living and seemed capable of managing his financial affairs without any assistance. Based upon these findings, the appellant's PTSD symptomatology is not deemed to be productive of a severe social and industrial impairment for an evaluation in excess of 50 percent under the pre-November 1996 criteria. Furthermore, it has not been shown that 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 worklike setting); inability to establish and maintain effective relationships such to warrant a 70 percent evaluation under the new criteria. Accordingly, in the absence of any additional evidence to the contrary, entitlement to a 50 percent disability evaluation for PTSD is warranted. ORDER A 50 percent disability evaluation for PTSD is granted, subject to controlling regulations applicable to the payment of monetary benefits. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals