Citation Nr: 0004079 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 96-11 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an evaluation in excess of 70 percent for post-traumatic stress disorder. 2. Entitlement to an effective date prior to November 30, 1994, for the grant of service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD D. M. Fogarty, Associate Counsel INTRODUCTION The veteran served on active duty from February 1971 to December 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 1995 rating decision from the Department of Veterans Affairs (VA) Portland, Oregon Regional Office (RO), which granted entitlement to service connection for post-traumatic stress disorder (PTSD), evaluated as 30 percent disabling, effective November 30, 1994. The Board notes that in a September 1999 rating decision, the RO denied entitlement to individual unemployability. The veteran has not filed a notice of disagreement as to that determination. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's PTSD is manifested by total occupational and social impairment due to such symptoms as gross impairment in communication, grossly inappropriate behavior, persistent danger of hurting self or others, inability to maintain minimal personal hygiene, and disorientation as to time. 3. On November 30, 1994, the RO received the veteran's claim of entitlement to service connection for PTSD. 4. In an August 1995 rating decision, the RO granted entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The schedular criteria for a 100 percent evaluation for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (1999). 2. An effective date prior to November 30, 1994 for the grant of service connection for PTSD is not warranted. 38 U.S.C.A. §§ 5107, 5110, 7105 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.104, 3.155, 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In November 1994, the veteran filed a claim of entitlement to service connection for PTSD. In an August 1995 rating decision, the RO granted entitlement to service connection, evaluated as 30 percent disabling, effective November 30, 1994. The veteran filed a notice of disagreement as to the rating percentage and the effective date of the benefit. A timely substantive appeal was submitted in February 1996. In a March 1996 rating decision, the RO determined that a 70 percent evaluation was warranted for PTSD, effective November 30, 1994. The veteran has continued his appeal of both the rating percentage assigned and the effective date of the benefit. I. Increased Rating Claim Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4 (1999). The percentage ratings contained in the Rating Schedule represent, as far as can be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, 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 conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include 38 C.F.R. §§ 4.1 and 4.2 (1999) which require the evaluation of the complete medical history of the claimant's condition. These regulations operate to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet. App. at 593-94 (1991). In the instant case, the veteran is technically not seeking an increased rating, since his appeal arises from the original assessment of a disability rating. When a veteran is awarded service connection for a disability and subsequently appeals the initial assessment of a rating for that disability, the claim continues to be well grounded. Fenderson v. West, 12 Vet. App. 119 (1999); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). In Fenderson, it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999). PTSD is rated under the portion of the Schedule for Rating Disabilities that pertains to mental disorders. Prior to November 7, 1996, PTSD was rated under 38 C.F.R. § 4.132. Effective November 7, 1996, the rating schedule for mental disorders was amended and redesignated as 38 C.F.R. § 4.130. See 61 Fed. Reg. 52700 (Oct. 8, 1996). The evaluation criteria have substantially changed in the new rating schedule and now focus on the individual symptoms as manifested throughout the record, rather than on medical opinions characterizing overall social and industrial impairment as mild, definite, considerable, severe, or total. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter "the Court") has held that where the law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the VA Secretary to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308 (1991). In light of the fact that the veteran filed his claim before November 7, 1996, the Board will evaluate his psychiatric disability in light of both the current and old criteria. Under the current rating criteria found in 38 C.F.R. § 4.130, Diagnostic Code 9440 (1999), a 70 percent evaluation is warranted for PTSD with 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 work-like setting); and inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9440 (1999). A 100 percent evaluation is warranted for PTSD with total occupational and social impairment, due to symptoms such as the following: 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; and memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, Diagnostic Code 9440 (1999). Under the former rating criteria for PTSD, 38 C.F.R. § 4.132, Diagnostic Code 9411 (1995), a 70 percent rating is warranted when 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 100 percent rating is warranted when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community, and 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 demonstrable inability to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1995). Employment is a factor that must be considered with regard to the evaluation of mental disorders. Prior to November 7, 1996, 38 C.F.R. § 4.130 provided that the severity of the disability was based upon actual symptomatology, as it affected social and industrial adaptability, and that two of the most important determinants of disability were time lost from gainful work and decrease in work efficiency. It was further provided that the rating board must not underevaluate the emotionally sick veteran with a good work record. 38 C.F.R. § 4.130 (effective prior to November 7, 1996). When there is a question as to which of two evaluations should be applied to a disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (1999). A review of the record reflects numerous private medical opinions regarding the veteran's mental status as well as VA opinions. In a May 1995 VA psychiatric evaluation, it was noted that the veteran had held numerous jobs, constantly argued with others, experienced flashbacks, had had no intimate relationships with women in 23 years, slept with a gun by his bed, and suffered from constant vigilance and avoidance of people. The examiner opined the veteran had clear-cut PTSD experiences including marked social phobia, anxiety, and nightmares involving the war. A private medical opinion dated in January 1996 reflects knowledge of the veteran in a professional capacity as well as personal experiences in the community. The physician noted that he had been treating the veteran since July 27, 1994 for severe depression and sleep deprivation. It was noted that the veteran was employed in a sheltered workshop type environment by a friend. The veteran's job was described as renting 3-wheeled bicycles to tourists for beach rides. The veteran primarily worked on the bicycles mechanically, but did have to interact with customers. The physician opined that the veteran's ability to deal with the public was "nil." The physician related that he and his family had been to the bicycle shop as customers and were rudely chastised and threatened about the rules for riding the bicycles before leaving the shop. The physician opined that the veteran was barely able to control a near manic level of anger at the general public. Upon returning the bicycles, the physician observed the veteran verbally threatening a teenage boy for riding on the wrong part of the beach. The physician remained on the scene until the boy was safely out of sight because he was concerned for his safety. It was also noted that a grocer across the street from the veteran's place of employment had evicted the veteran from the store because of his loud and blasphemous behavior that threatened and frightened customers. It was further noted that the local city hall reported to the physician that they received complaints regarding the veteran's behavior on a regular basis throughout the summer. The physician opined that the veteran's suicide potential was as high as anyone he had seen. Finally, it was noted that the veteran was tolerated in the community because it was well known that he was a Vietnam veteran and was seriously impaired psychologically while serving his country. A February 1996 statement from a licensed clinical social worker reflects that the veteran was unable to maintain appropriate social interaction with the public or other individuals. Incidents involving verbal attacks on customers, pulling a knife on a customer, and other incidents requiring police involvement were noted. The social worker observed that the veteran was unable to maintain any intimate relationships and was also unable to maintain consistent employment. It was noted that these symptoms continued despite abstinence from substance use and abuse. The social worker described the veteran's symptoms as severe and saw no possibility for him to maintain gainful employment. An October 1997 letter from the same private physician as noted above reflects that the veteran suffered from PTSD with severe depression and obsession. It was noted that the veteran frequently ruminated about suicide, and after three years of treatment absolutely no improvement in his condition had been observed. Upon VA examination dated in February 1999, dreams and intrusive recollections of Vietnam experiences were noted as well as hallucinations and symptoms of avoidance. The veteran was described as reclusive. The examiner noted that the veteran's irritability and sarcasm were evidenced throughout the examination. The examiner noted no evidence of a thought disorder and questionable judgment. It was noted that the veteran had never been able to maintain gainful employment and it did not seem likely at that point. A diagnosis of PTSD was noted and a Global Assessment of Functioning score of 45 was assigned. A private mental health treatment record dated in May 1999 reflects that the veteran was being treated with medication with some success. It was noted that the veteran had worked for the last few years at a friend's bicycle shop. However, that situation was coming to an end at the close of the summer. The physician reported that there had been at least four occasions on which the police had been called to intervene because of the veteran's interactions with customers. The physician opined that the veteran was unemployable in that he was not able to keep or maintain gainful employment. It was noted that his thought processes were partially logical but with the use of a lot of metaphors and abrupt changes of subject. In a May 1999 letter, the aforementioned licensed clinical social worker described the veteran as experiencing chronic symptoms of rage, panic and disassociation. It was also noted that the veteran was distractible, forgetful, and rambled in his conversations. Additionally the veteran had difficulty in orienting to time and day as well as in keeping schedules. His depression was described as relentless and responding only minimally to anti-depressant medication. It was noted that his suicidal ideation had not ceased. The social worker reported that the veteran lived in a destitute condition of messes, poor hygiene, and fire risks, and his isolation was essentially absolute. Many potential customers and townspeople avoided the veteran out of fear of his unpredictable behavior. Finally, it was noted that the veteran was unable to maintain any close relationships, and even his family had been alienated from him. The social worker opined that the veteran was totally unemployable. Additionally, a June 1999 letter from the veteran's employer is of record. It reflects that the veteran was originally employed by the bicycle shop in spite of his intimidating demeanor. Incidents of verbal abuse, threats, and police intervention in dealing with customers were noted, including an incident in which the veteran flashed a knife in front of a customer. After a May 1998 incident between the veteran and a customer, the employer reported that an agreement to end the veteran's relationship with the bicycle shop was agreed upon. The employer stated that the veteran continued to "work background" as needed and would receive his last paycheck in September 1999. The employer opined that in his experience, the veteran was not employable. In light of the aforementioned evidence, the Board concludes that a 100 percent disability rating is warranted for PTSD under either the current or earlier criteria. This evidence more nearly approximates to total occupational and social impairment in that it demonstrates such symptoms as gross impairment in communication, grossly inappropriate behavior, persistent danger of hurting self or others, an inability to maintain minimal personal hygiene, and disorientation to time. Finally, as the Board has herein assigned one increase, without specifying effective dates or differentiating between multiple periods, the question of staged ratings has not been decided as prejudicial to the veteran. Accordingly, no prejudice has resulted herein. Bernard v. Brown, 4 Vet. App. 384, 392-394 (1993). II. Earlier Effective Date Claim The veteran contends that an earlier effective date is warranted for the grant of service connection for PTSD. He asserts that the award should be effective from November 1, 1976, when his condition was misdiagnosed and his claim denied. A review of the record reflects that in February 1974, the veteran filed a claim of entitlement to service connection for a nervous condition. In an April 1974 letter, the RO informed the veteran that additional information was needed. The veteran was also informed that if he did not respond within 60 days, the RO would assume that he did not wish to pursue his claim and no further action would be taken. The veteran did not respond to the RO's letter. In October 1976, the veteran again filed a claim of entitlement to service connection for a nervous condition. In a July 1977 rating decision, the RO denied the claim of entitlement to service connection for a nervous condition on the grounds that a character disorder was a constitutional or developmental abnormality and not a disability under law, additionally no evidence of a psychosis related to service had been presented. The veteran filed a notice of disagreement and a statement of the case was issued in March 1978. The cover letter attached to the statement of the case informed the veteran of the information needed in his substantive appeal and informed him that if he did not respond in 60 days, the RO would assume that he did not wish to complete his appeal and the record would be closed. The veteran testified at a RO hearing in March 1978 and statements from family members were submitted to the RO in April 1978 In July 1978, the RO issued a confirmed rating decision and continued to deny entitlement to service connection for a nervous condition. A supplemental statement of the case was issued in July 1978 as well as a cover letter informing the veteran that if he did not respond in 30 days, they would assume that he did not want to pursue his appeal and his case would be closed. The veteran did not respond to either of the RO's letters and no substantive appeal was filed. In July 1979, the veteran moved to reopen his claim of entitlement to service connection for a nervous condition. In a September 1979 letter, the RO requested more information from the veteran. He did not respond to the September 1979 letter. On November 30, 1994, the RO received the veteran's claim of entitlement to service connection for PTSD and such was subsequently granted. The first competent medical evidence of a diagnosis of PTSD is a VA examination dated March 15, 1995 The effective date for the veteran's award is governed by 38 U.S.C.A. § 5110(a), which provides that unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application therefor. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 1991); 38 C.F.R. § 3.151(a) (1999). A "claim" or "application" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (1999). An informal claim is any communication indicating an intent to apply for one or more benefits. The benefit sought must be identified. 38 C.F.R. § 3.155. A review of the record reflects that there is no evidence on file, including psychiatric records, that can be construed as an informal claim for service connection for PTSD prior to November 30, 1994. See 38 C.F.R. § 3.155. The veteran's earlier claims of entitlement to service connection for a nervous condition were denied by the RO and became final when the veteran failed to perfect his appeal. Even if these claims were construed as claims for PTSD, for a reopened claim the effective date of a grant of compensation may not be made effective before the date of VA receipt of the application to reopen or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q),(r). Thus, the effective date of the grant of entitlement to service connection for PTSD cannot be earlier than November 30, 1994. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Thus, the claim for an earlier effective date must be denied. ORDER A 100 percent evaluation for PTSD is granted, subject to the governing regulations applicable to the payment of monetary benefits. An effective date prior to November 30, 1994 for the grant of entitlement to service connection for PTSD is denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals