Citation Nr: 0005273 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 93-10 555 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for post-traumatic stress disorder (PTSD), prior to November 7, 1996. 2. Entitlement to an evaluation in excess of 70 percent for PTSD, on and after November 7, 1996. REPRESENTATION Appellant represented by: Military Order of the Purple Heart ATTORNEY FOR THE BOARD J. Horrigan, Counsel INTRODUCTION The veteran had active service from September 1943 to December 1945. This case comes before the Board of Veteran's Appeals (Board) on appeal from a February 1992 rating action by the RO that denied an evaluation in excess of 50 percent for PTSD. This case was remanded by the Board in March 1995, January 1996, and September 1997. Subsequent to the most recent of these remands, the RO, in a rating decision of January 1999, assigned a 70 percent rating for the veteran's PTSD from November 7, 1996. In a rating decision of April 1999, the RO granted the veteran a total rating for compensation purposes based on individual unemployability, effective November 7, 1996. The veteran now seeks an evaluation in excess of 50 percent for PTSD, prior to November 7, 1996 and an evaluation in excess of 70 percent for this disability on and subsequent to that date. These issues are now before the Board for appellate consideration at this time. FINDINGS OF FACT 1. The veteran's service connected PTSD rendered him unable to obtain or retain gainful employment before November 7, 1996. 2. The veteran's service connected PTSD has rendered him unable to obtain or retain gainful employment on and subsequent to November 7, 1996. CONCLUSIONS OF LAW 1. The criteria for a 100 percent schedular evaluation for the veteran's service connected PTSD prior to November 7, 1996 have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). 2. The criteria for a 100 percent schedular evaluation for the veteran's service connected PTSD on and subsequent to November 7, 1996 have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that it finds that the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that these claims are plausible. All relevant facts pertaining to these claims have been developed to the extent possible, and no further assistance to the veteran is required in order to satisfy the VA's duty to assist him in the development of these claims as mandated by 38 U.S.C.A. § 5107(a). I. Factual Basis VA and private clinical records and medical statements reflect outpatient treatment during the late 1980s and the 1990s for psychiatric symptomatology diagnosed as due to PTSD and paranoid schizophrenia. In April 1989 the Board denied entitlement to an increased rating, in excess of 50 percent, for PTSD. His current claim for PTSD is considered to date from the later part of 1991. During a VA psychiatric examination in December 1991, moderate psychomotor agitation was reported. The veteran was said to be very nervous and uncomfortable. His speech was rambling and very hard to follow. Loose associations and tangential thinking were noted. There was no evidence of perceptual distortions and the veteran denied hallucinations. The veteran's affect was excited and he claimed to feel anxious. The veteran was of average intelligence and had no insight. Judgment was fair and his interpretation of simple proverbs was abstract. There was no significant deficit for memory on testing. The diagnoses on Axis I were chronic paranoid schizophrenia and mild chronic PTSD. The veteran's impairment was described as severe and his GAF score was 50 with serious impairment in social and occupational functioning. It was noted at that time that the veteran had been unemployed for many years. On VA psychiatric examination in December 1992 the veteran complained of emotional numbness and sadness. He also said that he experienced rage and anger that caused considerable problems with employers. Sleeping problems, concentration difficulties, invasive thoughts, loss of self esteem and feelings of hopelessness and helplessness were also reported. He said that he had not been able to work since 1976 and, when he tried, he experienced panic attacks and anxiety. On evaluation, the veteran's answers were coherent and rational. He presented as somewhat nervous and uptight but he was cooperative. His speech was fast due to nervousness but he showed no anger or hostility. Some resentfulness was noted. He showed a lack of feelings when talking about his war experiences and his family. The veteran did not show signs of hopelessness or helplessness. He was not suicidal. The diagnosis on Axis I was PTSD. The veteran was said to be unemployable. In an August 1993 statement, a VA psychiatrist reported that the veteran suffered from anxiety, stress, bouts of depression, suicidality, problems controlling his temper, and sleeplessness with nightmares that occurred 2-3 times a week. He was said to have all kinds of problems with work and interpersonal relationships. Evaluation revealed the veteran to be fast-talking, prone to be hurt, angry and disappointed. He had a normal thinking process with normal affective contact and unimpaired intellectual functioning. The diagnosis was PTSD. On VA psychiatric examination in April 1995, the veteran's current problems were said to involve not being able to get along with anyone. He said that he had ended a relationship with his girlfriend because of suspicion, feeling worthless and helpless, and being verbally abusive. He also said that he had some close friends. He said that he retired from the post office in 1978 with a 40 percent disability. On evaluation, the veteran was oriented times four and could recall three of three objects immediately. He could recall one of three after 5 minutes, which was increased to three of three with prompting. The veteran did serial 7s competently with one mistake. He was able to recall the presidents back to Reagan. He could do simple comparisons easily, but complex ones eluded him. The veteran was mildly disheveled, but cooperative. His speech demonstrated mild to moderate loosening of associations with circumstantiality that was quite marked, bordering on tangentiality at times. The veteran was anxious and euthymic during the interview. The diagnoses on Axis I included moderate, chronic PTSD and generalized anxiety disorder. It was said that the veteran had frequent symptom break-through that appeared to interfere with his functioning. His family history indicated some fairly marked psychopathology that he had struggled to compensate for. The veteran was hospitalized from early August to early September 1995. On admission it was reported that the veteran had gradually developed paranoid ideation over the previous four years. He presented with grossly disorganized thought processes and florid paranoid delusions. Evaluation revealed him to be mildly agitated and extremely anxious. He had considerable loose associations and some characteristic low volume mumbling and monotone which made him very difficult to understand. He was reportedly concerned with delusional beliefs such as witchcraft. He denied specific hallucinations, but there were frank paranoid delusions. He denied suicidal or homicidal ideation. During the hospitalization the veteran was medicated with Risperone and Artane. At the time of discharge, the diagnoses on Axis I were PTSD and chronic paranoid schizophrenia. His GAF score was reported to be 30/65. On VA psychiatric examination in May 1996, the veteran's chief complaint was inability to get along with people. Evaluation revealed that he was oriented in three spheres and his judgment was fair. He could abstract proverbs without difficulty. The veteran was cooperative and appeared somewhat anxious. General information, attention, concentration, and calculating ability were intact. He could remember two of three words after five minutes. His mood was depressed and his affect was appropriate. Thoughts progressed in a logical and coherent manner and there was no evidence of hallucinations, delusions, paranoid ideation, or feelings of depersonalization or derealization. Past suicide attempts were noted but there was no current suicidal ideation. The veteran denied recent violence or homicidal ideation. The diagnoses on Axis I included PTSD. The veteran's GAF scale was 50. The examiner commented that the veteran's PTSD caused serious industrial and social impairment. During a VA psychiatric examination in September 1998 the veteran primarily complained of anxiety and stress. He also complained of isolation, twice-weekly panic attacks, frequent verbal arguments, and problems controlling anger and temper. He said that he could not get along with people and also complained of sleeping problems with frequent awakenings. He said that he was hypervigilant at night and had an increasing startle response. He had a nightmare about being surrounded by Japanese soldiers that occurred once a week. Flashbacks were also reported. Paranoia, depression, and crying spells were also noted. Evaluation revealed a somewhat manic affect and the veteran's mood was described as manic and anxious. Speech was normal and there was no evidence of psychoses, loosening of associations, paranoid ideation, or delusions. There was no suicidal or homicidal ideation. The veteran was oriented times four and had good recent and remote memory. Recall was good. He could abstract proverbs, do serial sevens, and make simple comparisons. Judgment and insight were fair. The diagnoses on Axis I were PTSD and chronic schizophrenia in remission. The veteran's GAF was 50. II. Legal Analysis 38 U.S.C.A. § 1155 (West 1991 & Supp. 1999) and 38 C.F.R. Part 4 (1999) provide that disability evaluations are determined by application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. The Board notes that the VA schedular criteria for rating mental disorders were revised, effective November 7, 1996. The United States Court of Appeals for Veterans Claims (Court) has held that, where the law or regulations change after a claim has been filed or reopened but before the administrative or judicial process has been concluded, the version most favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308 (1991). The veteran's service connected psychiatric disability is evaluated under the provisions of 38 C.F.R. § 4.132, Diagnostic Code 9411 for PTSD. Under the criteria for this Diagnostic Code in effect prior to November 7, 1996, a 50 percent rating is assigned for PTSD with symptoms resulting in considerable impairment of the ability to establish or maintain favorable relationships with people and with psychoneurotic symptoms so reducing the reliability, flexibility and efficiency levels as to result in considerable industrial impairment. A 70 percent evaluation is assigned for PTSD if there is psychiatric disability which causes severe impairment in the ability to establish and maintain effective or favorable relationships with people and with psychoneurotic symptoms of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent evaluation is assigned for psychiatric disability if the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community, with totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, and 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 form mature behavior. A 100 percent evaluation is also assignable if a psychiatric disability results in a demonstrable inability to obtain or retain employment. Under the criteria for rating psychiatric disorders since November 7, 1996 (the current criteria), a 50 percent rating is assigned when there is 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 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 70 percent rating requires 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 adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment of thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (1998). The Board notes that this case has been remanded on three occasions. The initial remand in March 1995 was to afford the veteran a current examination that was consistent with the holding of the decision of the United States Court of Appeals for Veterans Claim (Court) in Massey v. Brown, 7 Vet. App. 204 (1994). The second remand of January 1996 was necessitated by the failure to include notice of an April 1995 examination in a subsequently issued supplemental statement of the case. The third remand of September 1997 was necessitated by the change in the criteria for rating mental disorders that became effective on November 7, 1996. The Board is now reviewing this case on the basis of all the evidence of record, beginning with that available to the RO in its adjudication of the veteran's claim for an increased rating for PTSD in February 1992. Review of the record reveals a long history of significant psychiatric symptomatology. After a December 1991 VA psychiatric examination the veteran was noted to be severely impaired. Following a further VA examination in December 1992, the veteran was said to be unemployable due to his psychiatric disorder. In August 1993, a VA physician reported all kinds of problems with work and interpersonal relationships. Following a VA psychiatric examination in April 1995, the veteran was noted to have "frequent symptom break-through that appeared to interfere with his functioning". After a VA hospitalization for psychiatric symptomatology in August and September 1995 a GAF score of 30/65 was reported. Following a VA psychiatric examination in May 1996 the veteran's PTSD was said to cause serious industrial and social impairment. Following a VA psychiatric examination in September 1998 the veteran's GAF score was 50. In our opinion, this evidence indicates that the veteran's psychiatric disorder during the entire pendency of his claim for an increased rating was 100 percent disabling, whether evaluated under the old criteria for rating mental disability (prior to November 7, 1996) or whether evaluated under the new criteria for rating mental disorder ( in effect on and subsequent to November 7, 1996). As early as December 1991 the impairment due to psychiatric symptomatology was said to be severe, and the veteran was said to be unemployable following a December 1992 VA examination. On the veteran 's most recent VA examination in September 1998, the veteran's GAF score was 50. This contemplates serious impairment of social and occupational functioning, such as having no friends and being unable to keep a job. The Board notes that a diagnosis of paranoid schizophrenia has been occasionally rendered during the veteran's psychiatric treatment and evaluations. However, such a diagnosis was not rendered following VA examinations in 1992, 1995, and 1996. While schizophrenia in remission was diagnosed after the veteran's most recent VA examination, this diagnosis was clearly based on history rather than on current findings since the examination report stated that there was no evidence of a psychosis on the evaluation. Clearly, the veteran's psychiatric symptomatology is, and has been, largely due to his service-connected PTSD. In view of the above, the Board concludes that the veteran's service-connected PTSD warrants a 100 percent schedular rating prior to November 7, 1996 under the criteria for rating mental disorders then in effect. The Board also concludes that the veteran's service-connected PTSD warrants a 100 percent schedular evaluation on and after November 7, 1996 under the criteria for rating mental disorders which is in effect currently. ORDER A schedular evaluation of 100 percent for post-traumatic stress disorder (PTSD), prior to November 7, 1996 is granted subject to the laws governing the payment of monetary benefits. A schedular evaluation of 100 percent for post-traumatic stress disorder (PTSD), on and subsequent to November 7, 1996, is granted subject to the laws governing the payment of monetary benefits BRUCE E. HYMAN Member, Board of Veterans' Appeals