Citation Nr: 0002761 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 98-21 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. Bohanan, Counsel INTRODUCTION The appellant served on active duty from January 1966 to January 1969. This appeal arises from a May 1998, Department of Veterans Affairs (VA) Regional Office, Montgomery, Alabama (RO) rating decision The Board notes that the appellant, through his representative, appeared to raise the issue of entitlement to a total rating based upon individual unemployability in June 1999 and in the December 1999 informal hearing presentation. This issue is referred to the RO for appropriate action. FINDING OF FACT Manifestations of the appellant's post-traumatic stress disorder include feelings of anger, anxiety, depression, insomnia, nightmares, intrusive thoughts, guilt, and social isolation, with difficulty establishing and maintaining effective relationships. He has no suicidal or homicidal ideation, or psychotic symptoms, and a clear sensorium, with full orientation and intact memory functions. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 50 percent for post-traumatic stress disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Regarding the appellant's claim for a higher disability rating, the Board finds that the appellant has satisfied his statutory burden of submitting evidence which is sufficient to justify a belief that his claim is "well-grounded" and the duty to assist the veteran has been met. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). In evaluating requests for increased ratings, the Board considers all of the medical evidence of record, including the appellant's relevant medical history. Peyton v. Derwinski, 1 Vet. App. 282 at 287 (1991). Disability evaluations are determined by the application of a schedule of ratings based on average impairment of earning capacity, with separate diagnostic codes identifying the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1999). In considering the severity of a disability it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1999). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board notes that this claim is based on the assignment of an initial rating for disability following an initial award of service connection for that disability. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that the rule articulated in Francisco did not apply to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Id.; Francisco, 7 Vet. App. at 58. The Board also notes that it has characterized the issue on appeal in order to comply with the recent opinion by the Court in Fenderson. As in Fenderson, the RO in this case has also misidentified the issue on appeal as a claim for an increased disability rating for the appellant's service- connected post-traumatic stress disorder, rather than as a disagreement with the original rating award for this disorder. However, the statement of the case and the supplemental statements of the case have provided the appellant with the appropriate, applicable law and regulations and an adequate discussion of the basis for the RO's assignment of an initial disability evaluation for the appellant's service-connected post-traumatic stress disorder. In addition, the appellant's pleadings herein clearly indicate that he is aware that his appeal involves the RO's assignment of an initial disability evaluation. Consequently, the Board sees no prejudice to the appellant in recharacterizing the issue on appeal to properly reflect the appellant's disagreement with the initial disability evaluation assigned to his service-connected post-traumatic stress disorder. See Bernard v. Brown, 4 Vet. App. 384 (1993). At a VA examination conducted in December 1991, the appellant reported that he was taking medications for psychiatric symptoms, and a history of chronic anxiety was reported. In February 1998, the appellant completed a post-traumatic stress disorder and provided a history of treatment for alcohol abuse. He indicated that he was taking medication, and denied alcohol use for the past 7 years. A VA Mental Hygiene Intake Assessment by a social worker in February 1998 indicated that the appellant had an Axis I diagnosis of chronic, severe post-traumatic stress disorder with a global assessment of functioning score of 40, with a score of 39 over the past year. Thereafter, the appellant was seen at the Mental Hygiene Clinic by the post-traumatic stress disorder clinical team. The appellant claimed that following his forced retirement due to low back pain, for which he received Social Security, several traumatic experiences in Vietnam had continued to "hurt him." He reported that since his job crisis, his dreams, nightmares, feelings of worthlessness, and hopelessness had intensified. He indicated that he had nightmares and intrusive thoughts that kept him awake at night. He also claimed that he was unable to cope with crowds, pressure, or stress. The appellant reported that he became angry, explosive, and depressed, and was not able to socialize with other people. He indicated that he was currently taking Xanax for anxiety and provided a history of treatment for alcohol abuse in 1980. He denied substance abuse and past suicidal ideation or attempt. However, the appellant claimed that he felt that life was not worth living, daily. No active suicide ideas were verbalized. The assessment was of depression, anxiety; history of alcohol abuse with one successful treatment; rule out post-traumatic stress disorder. Psychiatric, psychological, and psychosocial assessments with group therapy for diagnostic purposes was recommended. Subsequent treatment entries reported that the appellant was seen at the VA mental health clinic in February 1998. The assessment was of chronic and severe post-traumatic stress disorder, with social and occupational impairment. In an April 1998 statement, the appellant reported that he had over twenty different jobs since his military separation in January 1969, but could not get along with his bosses or other people long enough to stay in one place, and in 1993 he received social security for a back disability. VA treatment records were submitted which revealed that the appellant was followed in the Mental Health Clinic for his post-traumatic stress disorder symptoms. March 1998 entries report that the appellant had difficulty sleeping and tended to withdraw emotionally. In April 1998, he reported problems pertaining to explosive anger, emotional numbness in personal relationships, depression, insomnia, nightmares, disturbing dreams, and intrusive thoughts. A VA post-traumatic stress disorder examination was conducted in May 1998. The appellant reported a history of approximately 10 arrests for driving under the influence in the past, and claimed that he had gone to jail several times for assault and battery and disorderly conduct charges. He reported that he had constant thoughts of Vietnam and recurrent distressing dreams. The appellant reported that he got up at night and checked the house. He reported experiencing stress when people brought up the topic of war; that he did not like crowds or social activities anymore; that he felt detached from others; and that he could not trust anybody. When asked about loving feelings he said, "in my marriage we are existing." He reported irritability, angry outbursts, hypervigilance, and exaggerated startle response. He denied current suicidal or homicidal ideation. The examiner observed that the appellant appeared older than his stated age. He was cooperative and supplied the examiner with written information. He was alert and oriented times four. The appellant exhibited good eye contact and had no abnormal motor activity. His mood was described by the appellant as "I am making it." His affect was congruent with his mood. His speech was of a regular rate and rhythm and responsive to cues from the interviewer. His thought process was logical, with no flight of ideas, or looseness of association. He was able to focus, sustain and shift attention. Thought content was negative for auditory or visual hallucinations. There was no thought broadcasting, thought insertion, or thought control. There was no evidence of delusional thinking, and no ideas or reference, obsessions, or compulsions. Short and remote memory were intact. Proverbs were fair, as was insight and judgment. Diagnoses on Axis I were post-traumatic stress disorder, chronic; and a history of alcohol dependence, in sustained remission per his report. Current global assessment functioning score was 50. The examiner summarized that the appellant was able to manage his own affairs. VA outpatient treatment records dated in July 1998 indicate that the appellant reported depression and emotional stress. The examiner indicated that the appellant tended to cover up his depression by becoming explosive and enraged. He continued to report insomnia and restlessness. He further reported intrusive thoughts, noted as perhaps triggered by lack of sleep, emotional tension, and family/marital stress. The examiner assessed post-traumatic stress disorder, chronic/severe, with social and industrial impairment. The global assessment functioning score was 40. The appellant complained of continued anger, frustration, and sleepless nights due to intrusive thoughts in August 1998. He had significant mood swings with the most predominant feelings of anger, rage and frustration. The assessment was that the appellant was depressed, frustrated, and feeling hopeless about the future, with insomnia, secondary to post-traumatic stress disorder symptoms. Global assessment functioning score was reported to be 39/40 and 40, respectively. At his October 1998 personal hearing before the RO, the appellant testified that he had difficulty being around people and would "blow up" with anger and do destructive things. He reported that he took 4 medications for his post-traumatic stress disorder, and claimed that he had thoughts of suicide. A VA psychosocial and treatment update from his social worker dated in October 1998, reported that psychosocial assessment revealed chronic and longstanding marital and family problems, with a past history of violence and alcohol abuse. It was noted that the appellant attempted to control or regulate his acute symptoms of post-traumatic stress disorder through alcohol, which included depression, anxiety, intrusive thoughts, panic attacks, feelings of shame and guilt, anger, rages, insomnia, nightmares, hypersensitivity, social phobia, and an inability to show tender loving care or compassion to others, including significant others in his life. It was noted that television documentaries and movies of war usually triggered or exacerbated acute symptoms. The appellant's global assessment functioning score was continued to be estimated at 38. It was noted that he continued to be unemployable due to explosiveness and unpredictability. Axis I diagnosis remained post-traumatic stress disorder, chronic and severe, with social and industrial impairment. The appellant's global assessment functioning score for the past year was 40. VA outpatient treatment records dated in December 1998, indicate that the appellant's treatment had helped to improve his frustration, tolerance, and irritability, but he still had explosive temper outbursts when his tolerance limit for stress was exceeded, particularly at home. He had impaired sleep and chronic depression. On mental status examination, he was alert with clear sensorium, and full orientation. There were no psychotic symptoms. He was less depressed, and less irritable than prior to beginning treatment. The appellant had no suicidal or homicidal ideation, and his judgment was intact. In April 1999, he was upset and grieving the death of his uncle. He was hypervigilant and hyperalert. He was chronically irritable with low frustration tolerance. The global assessment functioning score was 40. In June 1999, he continued to be hyperalert and was tense and guarded in interaction. The appellant's anger and stress levels escalated with minimal provocation. He was anxious and depressed in mood and affect, with no psychotic symptoms. He had no suicidal or homicidal ideation. In September 1999, the appellant was alert with clear sensorium. He was fully oriented, with intact memory functions. He had depressed mood and affect. He was edgy and irritable with no psychotic symptoms. His global assessment functioning score was 42. Post-traumatic stress disorder is rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411. The regulation reads: 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. [10 percent] 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). [30 percent] 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. [50 percent] 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. [70 percent] 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. [100 percent] The evidence of record reveals no more than reduced reliability and productivity due to post-traumatic stress disorder symptoms. Manifestations of the appellant's post- traumatic stress disorder, include anger, anxiety, depression, insomnia, nightmares, intrusive thoughts, guilt, social isolation, and difficulty establishing and maintaining effective work and social relationships. He has no suicidal or homicidal ideation, or psychotic symptoms, with a clear sensorium, full orientation, and intact memory functions. There is no indication that the has psychiatric symptoms that would more nearly approximate the criteria for a 70 percent disability rating. See 38 C.F.R. § 4.7 (1999). Specifically, the evidence does not indicate that the appellant has suicidal ideation; obsessional rituals which interfere with his routine activities; illogical, obscure, or irrelevant speech; near- continuous panic or depression that affects his ability to function independently, appropriately or effectively; spatial disorientation; neglect of personal appearance and hygiene; or an inability to establish and maintain effective relationships. Accordingly, the criteria for a 70 percent disability rating under Diagnostic Code 9411 have not been met. In this case, the RO granted service connection and originally assigned a 10 percent disability evaluation for post-traumatic stress disorder as of the date of receipt of the appellant's claim, i.e., February 18, 1998. See 38 C.F.R. § 3.400 (1999). Subsequent to this decision, the RO granted a 50 percent disability rating, effective as of February 18, 1998. After review of the evidence, there is no medical evidence of record that would support a rating in excess of 50 percent for the disability at issue at any time subsequent to the date of receipt of the appellant's claim, i.e., February 18, 1998. Id.; Fenderson v. West, 12 Vet. App. 119 (1999). ORDER An initial evaluation in excess of 50 percent for post- traumatic stress disorder is denied. JOY A. MCDONALD Acting Member, Board of Veterans' Appeals