BVA9504187 DOCKET NO. 91-40 489 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an increased evaluation for post traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Rebecca A. Kelly, Associate Counsel INTRODUCTION The veteran served on active duty from February 1971 to September 1972. This appeal arises from a August 1990 rating decision of the Indianapolis, Indiana, Department of Veterans Affairs (VA), Regional Office (RO) which granted the appellant service- connection for PTSD evaluated as 10 percent disabling. In January 1992, this case was remanded by the Board for additional development. Following compliance with this remand, the RO issued a rating action in May 1992 that confirmed and continued the denial of the benefits sought. In April 1993, the RO granted the veteran an increased rating for PTSD of 100% while he was hospitalized and upon discharge his evaluation was readjusted to 30 percent disabling. In August 1994, the RO confirmed and continued the denial of the benefits sought. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that his PTSD should be assigned a higher disability evaluation because the current evaluation does not accurately reflect his present degree of disability. He asserts that he is unable to hold a job because of his increasing symptoms of chronic suicidal ideation, flashbacks and nightmares. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for an increased evaluation for PTSD. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The veteran's service-connected PTSD causes a definite degree of impairment, and is manifested by anxiety, flashbacks, nightmares, hyperarousal and estrangement from others. 3. On VA examinations in April 1993 and April 1994, the PTSD was diagnosed to be moderate in degree. CONCLUSION OF LAW The criteria for a 50 percent disability evaluation have not been met. 38 U.S.C.A. §§ 1155, 5107 (a) (West 1991); 38 C.F.R. § 3.321, Part 4, including §§ 4.1, 4.2, 4.7, 4.129, 4.130, Code 9411 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a)(West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). That is, we find that he has presented a claim which is plausible. We are also satisfied that all relevant evidence has been obtained. There is no indication in the record that there are other records available that should be obtained. Therefore, no further development is necessary in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). In evaluating the appellant's request for an increased rating, the Board considers the pertinent evidence of record, including the entire medical history. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. In so doing, it is our responsibility to weigh the evidence. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 1155 (West 1993); 38 C.F.R. Part 4 (1993). When a question arises as to which of two evaluations shall be assigned within a diagnostic code, 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 (1993) 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 used to support the conclusion. Schafrath v. Derwinksi, 1 Vet.App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran's working or seeking work. In psychiatric cases, social integration is one of the best evidences of mental health. However, in evaluating impairment resulting from the ratable psychiatric disorders, social inadaptability is to be evaluated only as it affects industrial adaptability. This contemplates the effect that the abnormalities have upon the veteran's earning capacity. 38 C.F.R. § 4.129 (1993). Two of the most important determinants of disability are time lost from gainful work and decrease in work efficiency. Emphasis is to be placed upon the examiner's description of actual symptomatology. Ratings are to be assigned which represent the impairment of social and industrial adaptability based on all the evidence of record. 38 C.F.R. § 4.130 (1993). 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 (1993). Factual Background The veteran's service medical records reveal that there were no complaints of, or treatment for, a psychiatric disorder. After his discharge he held numerous jobs until 1979 at which time he became employed in a factory job until 1990. In 1988, he sought mental health counseling for depression, stress and marital separation, and was diagnosed with post-traumatic stress disorder. His irritability, social isolation and temper outbursts were noted to have increased in frequency. He was treated with medication and weekly therapy. In January 1990, he was hospitalized by VA and underwent marijuana detoxification in order to participate in the Combat Veterans Treatment Program. His symptoms included problems dealing with people, nightmares, and nervousness. His diagnosis was post traumatic stress disorder. His post discharge treatment included vet center counseling. The veteran was examined by VA in May 1990, at which time he stated that, while he was in service, he experienced a great deal of stress as a door gunner on a helicopter. Depression and nightmares had been a constant problem since his discharge; his nightmares consisted of killing whole villages of people and fighting a war that never ceased. He commented that if a helicopter came nearby, he would often have flashbacks. He reported depression, alienation, withdrawal, sleep disturbances, irritability and anhedonia. His main motivation for withdrawal was to protect himself from what he perceived to be a potentially dangerous situation. He denied any hallucinations, delusions or paranoia. He had not been suicidal in four years and currently was not homicidal. At the time of this examination, he had been married to the same woman for 13 years. While their relationship was better, he noted that it had been "rocky" in the past. He was working in a factory making partitions, employment he had maintained for ten years. His mental status examination was generally within normal limits, although his thought content was positive for flashbacks and nightmares. The diagnosis was moderate post traumatic stress disorder and dysthymia. He was noted to be currently employed, and the examiner commented that there was no reason he should not be able to be employed in a gainful position. Outpatient mental health treatment records were developed in June 1991. The veteran's complaints included nightmares and flashbacks. The veteran reported to have recurrent family frustrations and financial crises, although he had been married for 16 years with one child and he worked as a laborer when he was able. The veteran asserted that he was edgy, tense, and unable to concentrate. His treatment included vet center counseling twice a week and Elavil. The diagnosis was probable PTSD. A VA psychiatric examination was performed by VA in March 1992. The veteran stated that after his discharge he had trouble keeping a job, drank quite a bit, and was imprisoned most weekends for disorderly conduct. He had been married 18 years in his second marriage and had a 13 year old daughter. He was working in welding and fabrication. His social contacts were minimal and he stayed home on weekends to work on his race car collection; occasionally, his friends stopped by his house for race car competition. He denied any prior hospitalization for PTSD symptoms; his treatment consisted of Prozac and outpatient counseling. Since receiving medications, he has been able to calm himself down when he becomes upset, thus suggesting a substantial improvement in self-control. He gave a fairly convincing history of flashbacks, which are often triggered by the sound of helicopters. The mental status examination revealed that he was mildly apprehensive and fairly limited with his insight, although his judgment was fairly intact. The examiner's opinion was that the veteran's problem of losing his temper, was caused by his inability to control his impulses and his conflict with authority figures, rather than his PTSD symptoms. His prescribed treatment had greatly improved his ability to control his aggressive impulses at work. The diagnosis was minimal to mild impairment from post-traumatic stress disorder and history of alcohol abuse, currently in partial remission. In August 1992, the veteran's wife submitted a statement for the record about her marriage in September 1974 to the veteran. In 1973, she met her husband who was a caring person, enjoyed people and had a social life, although after their marriage, his behavior changed. He began to have nightmares, night sweats, avoided people, and would have frequent fits of rage that could last up to 30 minutes and his reaction was withdrawal that was very difficult for their daughter. When he did socialize, it had to be outside and he drank until he was incoherent. After he had experienced trouble at work and lost his ambition, his boss threatened to fire him unless he got help. He began treatment with vet center counseling and medication and was reported to have his temper under better control at work, although she attributed his progress with his job to being "drugged." He still has nightmares, extreme difficulty in working with people, continues to hide his feelings from his family and has talked of suicide with a close friend. In March 1993, the veteran was hospitalized for three weeks by VA when he presented himself at the emergency room as suicidal. He began to experience increasing difficulties with nightmares after he was taken off Prozac following a back injury at work. His anxiety, social isolation, feeling of rage and depression also worsened. His wife of 18 years was frightened and, at times, threatened to leave him. The mental status examination showed he was in moderate distress secondary to anxiety and at times became acutely agitated. He was tearful and he spoke quietly and quickly. His affect was labile and dramatic. His thought processes were logical, goal directed, impressionistic and vague and he focused on specifics only through repeated and structured questioning. The patient related emotional difficulties secondary to nightmares and flashbacks. He expressed positive suicidal ideation that included a plan of putting a hand gun to his head, although his intent was ambivalent and he denied homicidal ideation. His recent and remote memory was intact, although he had mild impairment of concentration and his ability to abstract was diminished. The physical examination of his back showed some restriction in his back movement and decreased mobility due to back pain. The veteran was taken off the suicide watch ward shortly after his admission. The veteran's treatment included Thioridazine and psychotherapy and his symptoms improved with respect to decreased anxiety, fewer nightmares, better sleep; and decreased somatic complaints. He voiced hopefulness, he participated more in group therapy and he slowly advanced through the community government. Discharge treatment consisted of psychotherapy, Imipramine, and a referral to VA vocational rehabilitation. The veteran was discharged to his home and believed to be capable of returning to employment. The diagnosis of Axis I was post-traumatic stress disorder by history and history of alcohol abuse. A VA psychiatric examination was performed by VA in April 1993. The veteran's complaints included diminished interest in significant activities, especially recreation. He reported to have quit the welding job in 1990 that he had held for 10 years because he had problems with authority and that the work load was excessive. His feeling of detachment and estrangement from others, especially from his daughter, caused him great emotional pain. He complained of persistent symptoms of hyperarousal, flashbacks and nightmares, and although he awakened frequently he no longer had difficulty falling asleep. He had trouble concentrating and irritability. The mental status examination showed the veteran to be nervous, tremulous and tearful, although his thought process was logical, sequential and pertinent and his thought content was free of current suicidal ideation. He admitted to sporadic episodes of homicidal ideation; however, he had not hit anybody in over five years. He had vague delusions that did not contain any concrete evidence about his fears and he denied visual hallucinations. The diagnosis on Axis I was post- traumatic stress disorder, moderate and alcohol abuse in remission. The Axis III diagnosis was lower back pain, status post trauma and obesity. Moreover, the physician opined that the veteran's current unemployment did not seem related directly to his PTSD symptoms, but primarily to his back pain. He further opined that the veteran appeared to be mildly to moderately impaired by his illness and that he was competent to handle VA funds. The veteran was voluntarily hospitalized by VA in January 1994. His pertinent history showed in the last 10 years that his PTSD symptoms had worsened, although since he retired from his job, his PTSD symptoms have bothered him more. He has felt more isolated and very guilty. He does not have a problem with alcohol. The veteran had quit his job due to back pain, although his wife had been very supportive. His outpatient treatment for his back included Darvon, although when he was hospitalized his back pain medication was 800 mgs of Motrin daily. Although he was medicated for complaints of depression and anxiety, he voiced no suicidal ideation and his participation in unit activities was good. The veteran tested positive twice for marijuana and Darvon, although he denied having done either since he had been hospitalized. Although the veteran was discharged immediately, his condition upon discharge was good and he was to resume counseling at the vet center. The patient was considered competent for VA purposes. A VA psychiatric examination was performed by VA in April 1994. An up-to-date history of his present illness is noted above. The veteran reported complaints of his difficulties at work, to include problems with authority, increasing flashbacks, nervousness, shakiness and recent memory lapses within the last six months and that when he was unable to cope with the pressure at work, so he would often leave to avoid being fired. The mental status examination showed that the veteran's eye contact was fair, he was nervous, anxious, and had tremulous hands, and his mood and affect were sad, although no particularly unusual behaviors were observed. His thought processes were logical and sequential and his thought content was appropriate to questions being asked, although he had difficulty answering questions about his combat experience in Vietnam. He denied suicidal ideation or auditory and visual hallucinations and he acknowledged flashbacks and nightmares, hyperarousal, feelings of detachment and estrangement from others. The diagnosis for Axis I was moderate post-traumatic stress disorder, dysthymia with history consistent with major depression and a history of alcohol abuse; his Axis II diagnoses were a history of histrionic personality traits and back pain, secondary to chronic disc disease. The examiner opined that given the veteran's psychiatric symptoms, he would expect him to have a certain amount of difficulty with interactions at work, although his chronic back problems would also contribute to his problem in obtaining or maintaining gainful employment. The examiner further opined that the veteran could find employment that was primarily solitary work and that required minimum demands for on-the-job performance. In April 1994, the veteran presented with complaints of forgetfulness and lack of orientation that increased his nervousness, although no symptoms of PTSD were noted. By the end of May, the objective findings of the neurological work-up were normal. Analysis The schedular criteria provide that a 30 percent evaluation is warranted for PTSD which produces definite impairment in the ability to establish or maintain effective and wholesome relationships with people, and the psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1991). The schedular criteria call for a 50 percent disability rating for PTSD which is productive of considerable social and industrial impairment. Severe social and industrial impairment leads to the assignment of a 70 percent disability rating. Id. Moreover, 38 C.F.R. § 3.321(b)(1) provides that an extra-schedular rating may be granted where the disability picture is exceptional or unusual with such related factors as marked interference with employment or frequent periods of hospitalization to render impractical the application of the regular schedular standards. After carefully reviewing the evidence of record, it is the finding of the undersigned that an increased evaluation for the veteran's service-connected PTSD is not warranted. The veteran's ability to maintain or obtain employment as revealed by the subjective evidence of record, shows that since his service separation he has quit whatever job he held. Throughout the record, the veteran has consistently reported that he had been unable to handle the pressure on his job, so he would just walk off the job to avoid being fired; in 1993 he stated that he "tends to quit multiple jobs" and in 1994 he stated he "quit" his job due to back pain and then contradicted himself at the same examination and stated that his PTSD symptoms have bothered him more since he retired. Nonetheless, as a layman, the veteran is not qualified to render opinions as to medical causation. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The medical opinions by the VA physicians are the most credible assessment and evaluation for the veteran's degree of impairment due to his service-connected disability. There are two VA examinations that concur with the diagnosis of moderate PTSD; both of the examiners opined as to the veteran's industrial impairment. The examiner of 1994 stated that although the veteran's capacity for employment would be limited to solitary work with minimal demands for on-the-job performance, he could realistically achieve employment of that nature; the opinion was partially based on his PTSD symptom of inability to interact with people at work and partially due to his chronic back pain that also contributed to his difficulty in obtaining or maintaining gainful employment. Secondly, the examiner in 1993 opined that the reason for the veteran's current unemployment was not related directly to his PTSD symptoms but primarily to his back pain. In Hood v. Brown, 4 Vet.App. 301 (1993), the Court of Veterans Appeals stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other terms were "quantitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate "reasons or bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a precedent opinion, dated November 9, 1993 the General Counsel of the VA concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." O.G.C. Prec. 9-93 (Nov. 9, 1993). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c) (West 1991). In this case, there are medical assessments as to the level of impairment. Two examiners have found the PTSD to be moderate in degree. This equates best to "moderately large in degree," or definite, but doe not meet the criteria for a considerable impairment, of "rather large" in degree. Accordingly, the 30 percent evaluation should be maintained. Nor does the evidence of record establish that an extraschedular evaluation is warranted under 38 C.F.R. § 3.321. The record is silent for any attempts by the veteran to obtain employment since he quit his job in 1990 and there is no evidence of any efforts by the veteran to pursue the 1993 VA referral for vocational training. Therefore, the most persuasive reason for the appellant's unemployment is his apparent failure to seek employment since he quit his job in January 1990. Secondly, although the veteran has had three hospitalizations since 1988, the most notable complaint for his most recent hospitalization in 1993 was his chronic back pain, a nonservice-connected disability, rather than another exacerbation of symptoms from his service-connected disability of PTSD. The other hospitalization reports were clearly to provide treatment for his service- connected disability, first of all to detoxify him in order to begin outpatient counseling and the other hospitalization for suicidal symptoms from his service-connected disability. In conclusion, it is the finding of the undersigned that the preponderance of the evidence is against the appellant's claim for an increased evaluation for PTSD. ORDER An increased disability evaluation for PTSD is denied. KENNETH R. ANDREWS, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.