Citation Nr: 0005938 Decision Date: 03/06/00 Archive Date: 03/14/00 DOCKET NO. 97-15 881 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware THE ISSUE Entitlement to restoration of a 100 percent rating for a psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, his spouse, his daughter, and a friend ATTORNEY FOR THE BOARD C. L. Wasser, Associate Counsel INTRODUCTION The veteran served on active duty from September 1965 to December 1966. This case comes to the Board of Veterans' Appeals (Board) from an RO decision which reduced the veteran's 100 percent rating for a service-connected psychiatric disorder (described as post-traumatic stress disorder (PTSD) with anxiety and depression) to 70 percent. The veteran appeals for restoration of the 100 percent rating. A personal hearing was held before a member of the Board in October 1999. The Board also notes that at the October 1999 Board hearing, the veteran appears to be raising an application to reopen a previously denied claim for service connection for a left leg disability. That issue is not currently on appeal and is referred to the RO for appropriate action. FINDINGS OF FACT The veteran's service-connected PTSD with anxiety and depression was rated 100 percent from June 1990 to September 1996, when the rating was reduced to 70 percent. There has been no material improvement in the psychiatric disorder under the ordinary conditions of life, and the psychiatric disorder continues to be totally disabling. CONCLUSION OF LAW The criteria for restoration of a 100 percent rating for the psychiatric disorder have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.343, 3.344, 4.132, Code 9411 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran served on active duty in the Army from September 1965 to December 1966, including service in Vietnam. He was awarded the Purple Heart medal. In addition to PTSD with anxiety and depression, the veteran's established service-connected disabilities include seizure disorder (rated 100 percent), fracture of the left hemipelvis (rated 20 percent), a tender scar (rated 10 percent), residuals of a nasal fracture (rated noncompensable), a shell fragment wound of the abdominal wall (rated noncompensable), and lumbar disc disease (rated noncompensable). The veteran has been determined to be permanently and totally disabled, and also receives special monthly compensation. In a May 1967 decision, the RO granted service connection for a psychiatric disorder, characterized as "schizoid personality with superimposed anxiety state," with a 10 percent rating. VA medical records dated in the 1970s and 1980s reflect episodic treatment for a psychiatric disorder, and reflect varying diagnoses for such disorder. In an October 1970 decision, the RO granted an increased 30 percent rating for the service-connected psychiatric disorder. In a December 1971 decision, the RO granted an increased 70 percent rating for the service-connected psychiatric disorder. In a September 1978 decision, the RO reduced the disability rating for the veteran's psychiatric disorder from 70 to 50 percent. In an April 1981 decision, the RO granted an increased 100 percent rating for the service-connected psychiatric disorder. At a December 1987 VA psychiatric examination, the veteran reported that soon after separation from service, he worked at Swift's Poultry and also in a job making spacesuits, but lost his job and his driver's license after he had a seizure at work. He stated that he had not worked since 1971, and related that it was difficult to get a job as he had recurrent seizures and did not have transportation. On mental status examination, he was alert, cooperative, and in no acute distress. He seemed reasonably relaxed but became angry on several occasions. However, he brought his anger under control. He was oriented, his memory was intact, and there was no evidence of a thought disorder. The diagnosis was dysthymic disorder. In an April 1988 decision, the RO reduced the disability rating for the veteran's psychiatric disorder from 100 to 70 percent. In an August 1989 decision, the Board denied a rating higher than 70 percent for the disorder. At a June 1990 VA psychiatric examination, the veteran complained of frequent nightmares and said he usually avoided going to bed until 3 or 4 o'clock in the morning. He said he awakened frequently throughout the night, was hyperalert, and could hear every sound in his house. The examiner stated that the veteran was in a constant state of alertness and vigilance, and had a markedly increased startle reflex. The veteran said he could not stand crowds and did not socialize. The examiner stated that while the veteran had flashbacks, such were not as frequent as some of the more debilitating symptoms of PTSD, and the veteran remained isolated, did not trust anyone, and could not get along with others to the point that he was unable to find or maintain employment. The examiner stated that the veteran was quite depressed and withdrawn, was easily agitated and was irritable most of the time, and demonstrated the characteristic numbing effect of PTSD. The examiner also noted that the veteran had numerous symptoms of post-concussional syndrome, and indicated that the veteran's irritability and headaches might also be secondary to such syndrome. The diagnostic impressions were PTSD with anxiety and depression, and post-concussional syndrome. The examiner indicated that the veteran's PTSD in addition to the formerly diagnosed dysthymic disorder, along with his post-concussional syndrome resulted in a condition in which the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community. He stated that the veteran had 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, and was demonstrably unable to obtain or retain employment. The examiner also indicated that the veteran's epileptic seizures and the medication taken for such resulted in severe industrial impairment. In a September 1990 decision, the RO granted an increased 100 percent rating for the service-connected psychiatric disorder, effective in June 1990. The RO characterized the disability as PTSD with anxiety and depression. At an October 1992 VA psychiatric examination, the veteran said his chief complaint was seizure disorder. The veteran's wife reported that he did not sleep at night, he stayed home all the time, seldom went out with his family, and did not do anything, and she speculated that he slept all day. On mental status examination, the veteran was neat and clean in appearance. The examiner stated that when the veteran entered the room, there was a feeling of hostility and bitterness, and his affective response was mainly that of depression. He noted that the veteran's eyes welled up with tears throughout the interview and he seemed ready to cry, but he tried very hard to control his emotions. The veteran said he was very bitter regarding the way he was treated at various hospitals. He denied any hallucinations, and no delusions were elicited. He denied suicidal thinking or attempts, but the veteran's wife stated that he had twice attempted suicide. His memory was intact for remote and recent past, and his concentration seemed to waver quite a bit. He was unable to concentrate on what was at hand for any length of time. The diagnoses were dysthymic disorder, chronic, and post-traumatic seizure disorder. The examiner indicated that there was no indication of PTSD. At a December 1994 VA psychiatric examination, the veteran reported that he had not worked in the past few years, and remained in his home doing odd jobs. He stated that he had nightmares when he first returned from Vietnam, but said they had gone away. He reported that his primary current problem was depression, which still impacted his sleep, and said he lacked energy and interest in doing things. On mental status examination, the veteran was neatly dressed and groomed, and was quite friendly and very spontaneous. He related quite well and it was easy to develop rapport with him. The examiner indicated that the veteran showed depression, was wearing dark goggles, and showed considerable tearing during the whole interview. The veteran tried to hide his depression but it became more and more evident during the interview. He expressed considerable hostility toward the VA system. He was oriented times three, his instant recall was normal, he could state four numbers backwards, was able to remember three things within five minutes, and his interpretation of proverbs was correct, although there was a tendency to be somewhat verbose. The Axis I diagnosis was dysthymia, characterized by low grade "temperature" of several years duration with very infrequent and very short- lived, very limited periodic spontaneous remissions which lasted from only a couple of hours to a day. The current global assessment of functioning (GAF) was 60, and the highest GAF in the past year was 60. In a March 1995 addendum, the examiner opined that there was no evidence of PTSD, and said the veteran's current diagnosis was dysthymia, characterized by longstanding mild depression with very short limited remissions. A May 1995 private medical record, completed by J. B. Hicks, a licensed professional counselor of mental health (LPCMH), reflects that the veteran underwent a mental status evaluation at the request of his wife, who was concerned that his VA disability benefits would be reduced based on a recent VA examination. The examiner noted that the veteran was dressed in military fatigue-style clothing, and appeared agitated and angry. The veteran said he spent his days working in the garden or just being by himself sitting and thinking. He stated that he avoided life, and it did not make any difference if he stayed in bed all day. The examiner concluded that the findings of a mental status interview and a personality assessment inventory were consistent with an individual who was suffering from PTSD and depression (dysthymia). He stated that the veteran's somatic concerns were centered around his epilepsy which caused him to give up gainful employment. At a September 1996 VA examination performed to evaluate the veteran's seizure disorder, he reported that he had a seizure in 1995, and suffered a pelvic fracture as a result. He reported increased depression, anxiety, and indigestion since this incident, and an increased frequency of seizures since his horse died. At a September 1996 VA psychiatric examination, the veteran noted that he was unemployed. He stated that after separation from service, he worked for ILC Corporation, but was terminated from his position after he had a seizure at work. He stated that since that time, he had been unable to hold a job and said he was not allowed to drive due to the medications he took for his seizure disorder. He reported depression since he lost his job, and financial difficulties. The veteran stated that he used to have a lot of dreams after returning from Vietnam, and he still had dreams, but not as often as when he first returned from Vietnam. He reported great difficulty sleeping, said he was not able to relax, and said he and his wife slept in different beds. He stated that he had tension all over his body most of the time. He was upset regarding the care he received at a VA medical center (VAMC) for a hip injury and was preoccupied with that issue. He had a lot of anger and irritability toward the government, particularly the VA. He stated that in the previous year, he had a seizure and fell while he was fixing his roof, and his horse recently died, which escalated his depression. He reported poor socialization, and said he did not like to be around too many people. He said he did not like to watch violent movies, and lost interest in activities which he previously enjoyed. He said he had very restricted affectionate feelings, and his wife felt he did not show love as he used to do. He reported difficulty concentrating, problems dealing with noise, and felt that he heard noises in the office during the interview, which the examiner indicated were minimal. He reported a startle response and persistent arousal symptoms. He did not have survivor guilt, and denied suicidal or homicidal thoughts. The veteran reported sleep difficulties and said he had to accept the fact that he had to stay home since he was unable to drive or work due to poor control of his seizure disorder. He said he had been able to help his wife at home while she worked. He reported that he was currently taking anti-seizure medications and Coumadin. On mental status examination, he was well-kempt, walked slowly, his speech was circumstantial, and he reported left hip pain. He was preoccupied with his pain, anxiety, anger, irritability, and depression. He cried during the interview, and mostly concentrated on the difficulty with care given by the VA. He had no significant psychotic symptoms. His affect was anxious, he was depressed and crying at times, and his memory appeared somewhat affected by his anxiety and depression. He had difficulty doing serial sevens, and was able to give two words out of three when his memory was tested. His abstractions and similarities were adequate. He was oriented in three spheres, his insight was limited and his judgment was fair. The Axis I diagnoses were PTSD, chronic, and major depression, recurrent, secondary to medical conditions. The Axis III diagnoses were seizure disorder secondary to head trauma in Vietnam, with poor control of seizures, and status post hip fracture with chronic pain. Psychosocial and environmental problems included an inability to work, an inability to drive, dependency feelings, and poor socialization. The current GAF was 62. By statements in 1997, the veteran and his representative essentially asserted that sustained improvement in the veteran's psychiatric disorder had not been demonstrated, and that the condition continued to be totally disabling. At an October 1998 VA psychiatric examination, the veteran complained of poor sleep, and nightmares, and said he was unable to tolerate noise. He stated that he was easily agitated and he continued to harbor anger over treatment received from the VA. He said he had no patience, and felt more anger than sadness. He denied any suicidal or homicidal ideas. The examiner noted that a review of the veteran's medical records showed that he was treated sporadically for counseling. On examination, the veteran was casually dressed, and his personal hygiene and appearance were adequate. He had facial grimaces which suggested much discomfort and pain. His mood was basically angry, his speech was clear with a hostile tone, and his verbal productions were short. He appeared hyperalert, his short- term memory was impaired, and he was quite negative and critical of others, particularly the VA. He was able to perform serial sevens correctly, and abstract reasoning was not impaired. The Axis I diagnosis was PTSD, chronic, the Axis III diagnosis was seizure disorder, and psychosocial and environmental problems included stressors from the Vietnam War. The current GAF was 52. The examiner opined that the veteran continued to have social and industrial impairment as a result of his PTSD, and said his depression appeared related to his seizure disorder, with which he was preoccupied. He was also obsessed with the VA, and openly expressed his anger at its "poor treatment" of him. At an October 1999 Board hearing, the veteran reiterated many of his assertions. The veteran, his wife, daughter and friend all essentially stated that his service-connected psychiatric disorder had not improved in the more than thirty years since his separation from service. The veteran's wife testified she had lived with the veteran for more than thirty years, and although his psychiatric functioning might have been better on the day of his VA psychiatric examination, most of the time, he stayed at home and did not do very many things, and he was upset most of the time. She stated that the veteran did not socialize with others, and could not stand to be around people. She stated that he slept poorly and had not worked in thirty years. The veteran's daughter testified that the veteran's psychiatric condition had actually worsened since a fall in which his pelvis was fractured, and he had more flashbacks. The veteran's friend testified that the veteran's condition had gone up and down, but mostly down, and lately had become worse. The veteran stated that he had not had any treatment for a psychiatric condition since the 1996 VA examination, and said he was not taking medication for a psychiatric disorder, and medication had not been recommended. He stated that in the past he had received treatment for a psychiatric disorder, but he felt it was not helpful. The veteran's representative asserted that the claim should be remanded to the RO for another VA examination. II. Analysis The veteran's claim for restoration of a 100 percent rating for PTSD with anxiety and depression (which rating has been reduced to 70 percent) is well grounded, meaning plausible. The file shows that the RO has properly developed the evidence, and there is no further VA duty to assist the veteran with his claim. 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. During the course of the veteran's appeal, the regulations pertaining to evaluating psychiatric disabilities were revised effective November 7, 1996, which is shortly after the RO reduced the rating in this case. See 38 C.F.R. § 4.130 (1999). The Board has only applied the old criteria in this case, as they appear to be most favorable to the veteran. Karnas v. Derwinski, 1 Vet.App. 308 (1991). The old criteria provide that a 70 percent rating is assigned for a psychoneurotic disorder when the ability to establish and maintain effective or favorable relationships with people is severely impaired, and the psychoneurotic symptoms are of such severity that there is severe impairment in the ability to obtain or retain employment. A 100 percent evaluation requires that 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. 38 C.F.R. § 4.132, Code 9411 (1996). The criteria in 38 C.F.R. § 4.132 for a 100 percent rating are each independent bases for granting a 100 percent rating. Johnson v. Brown, 7 Vet. App. 95 (1994). Code 9411 pertains to PTSD; there are other codes for other psychoneurotic disorders, such as generalized anxiety and depression, but the rating criteria are the same. As summarized in Brown v. Brown, 5 Vet. App. 413 (1993), 38 C.F.R. § 3.344 provides that, for disability ratings which have been in effect at the same level for 5 years or more, the following requirements must be met in reducing ratings: (1) there must be a review of the entire record of examinations and the medical-industrial history to ascertain whether the recent examination is full and complete; (2) examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction; (3) ratings on account of diseases subject to temporary and episodic improvement will not be reduced on any one examination, except in those instance where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated; and (4) although material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. The 100 percent rating for the veteran's psychiatric disorder was in effect from June 1990 to September 1996, more than 5 years, and thus the provisions of 38 C.F.R. § 3.344, regarding stabilization of ratings, are applicable. Moreover, total disability ratings, when warranted by the severity of the condition, will not be reduced without examination showing material improvement. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration is to be given as to whether there has been material improvement under the ordinary conditions of life. 38 C.F.R. § 3.343. The Board has reviewed the entire record, including the 1990 VA examination which led to the prior 100 percent rating for the psychiatric disorder; VA examinations in 1992, 1994, and 1995, prior to the rating being reduced to 70 percent; and the 1998 VA examination, after the rating reduction. It is admittedly difficult to isolate the impairment due exclusively to the psychiatric disorder, given the total disability (and some apparent overlap of symptoms) of the seizure disorder. Moreover, the psychiatric impairment has obviously fluctuated during the lengthy period in the appeal, with the veteran having some "good days" and some "bad days." Nonetheless, on review of all the evidence, including the serial VA examinations, it is not readily apparent that, since the time when the psychiatric disorder was rated 100 percent, there has been material improvement in the condition under the ordinary conditions of life. Recent examinations and hearing testimony contain credible information that psychiatric symptoms continue to so adversely affect attitudes of all contacts, except the most intimate, so as to result in virtual isolation in the community (i.e., one of the alternative tests for a 100 percent rating under the old criteria). To a lesser extent, the evidence offers some support for the other rating tests for a total rating. With application of the benefit-of-the-doubt rule (38 U.S.C.A. § 5107(b)), the Board finds that the veteran's PTSD with anxiety and depression has not materially improved under the ordinary conditions of life, and it continues to be totally disabling. Hence, restoration of a 100 percent rating for the psychiatric disorder is warranted. ORDER Restoration of a 100 percent rating for a psychiatric disorder is granted. L. W. TOBIN Member, Board of Veterans' Appeals