Citation Nr: 0004892 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 95-26 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an evaluation in excess of 70 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: R. Edward Bates, Attorney WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from October 1967 to May 1970. The current appeal arose from an August 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The RO granted entitlement to a temporary total evaluation based on hospital treatment in excess of twenty-one days for PTSD effective from January 20, 1993 to August 31, 1994; reinstated the previous 30 percent evaluation for PTSD with denial of entitlement to an evaluation in excess thereof, and denied entitlement to a total disability rating for compensation purposes on the basis of individual unemployability (TDIU). The veteran presented oral testimony before a Hearing Officer at the RO in February 1997, a transcript of which has been associated with the claims file. In August 1997 the RO Hearing Officer affirmed the prior denial of entitlement to an evaluation in excess of 30 percent for PTSD. In September 1998 the Board of Veterans' Appeals (Board) remanded the case to the RO for further development and adjudicative actions. In September 1999 the RO granted entitlement to an increased evaluation of 70 percent for PTSD, effective from September 1, 1994; and granted entitlement to a TDIU, effective from October 1, 1996. The case has been returned to the Board for further appellate review. FINDING OF FACT PTSD has rendered the veteran unable to obtain and maintain substantially gainful employment. CONCLUSION OF LAW The 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, 4.132, Diagnostic Code 9411 (effective prior to November 7, 1996); 38 C.F.R. § 4.130; Diagnostic Code 9411; 61 Fed.Reg. 52695-52702 (Oct. 8, 1996) (effective November 7, 1996). REASONS AND BASES FOR FINDING AND CONCLUSION Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably 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). 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 U.S.C.A. § 1155; 38 C.F.R. Part 4. The inquiry into disability evaluations centers on the ability of the body or system in question to function in daily life, with specific reference to employment. 38 C.F.R. § 4.10. In considering the residuals of injury, it is essential to trace the medical-industrial history of the disabled person from the original injury, considering the nature of the injury and the attendant circumstances, and the requirements for, and the effect of, treatment over past periods, and the course of the recovery to date. 38 C.F.R. § 4.41. 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2 (1999). Where there is a question as to which of two evaluations shall be applied, 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. The Board notes that the VA Schedule for Rating Disabilities that addresses mental disorders was amended, effective November 7, 1996. 61 Fed.Reg. 52695. Thus, the regulatory criteria governing the evaluation of the appellant's PTSD changed while his claim was pending. Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to the appellant will apply unless Congress provided otherwise. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Under the previous regulations, a 70 percent evaluation for PTSD was assigned when the ability to establish and maintain effective or favorable relationships with people was severely impaired. The psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain and retain employment. A 100 percent evaluation was assigned when the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community. It was required that there be 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. There had to be demonstrable inability to obtain or retain employment. 38 C.F.R. § 4.132; Diagnostic Code 9411 (effective prior to November 7, 1996). Under the criteria which became effective November 7, 1996, a 70 percent evaluation for PTSD 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 in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Under the regulations which became effective November 7, 1996, a 100 percent evaluation may be assigned for PTSD when there is 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. 38 C.F.R. § 4.130; Diagnostic Code 9411 (effective November 7, 1996). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Factual Background A review of the service medical records discloses the veteran served a tour of duty with the United States Marine Corps as a rifleman during the period of hostilities in Vietnam. His decorations include a Combat Action Ribbon. PTSD was included as a diagnosis when the veteran was hospitalized by VA during May and June, 1983. PTSD was reported as the primary disability treated when the veteran was hospitalized by VA from January to July 1992. In August 1992 the RO granted entitlement to service connection for PTSD with initial assignment of a total rating based on hospitalization treatment therefor effective from January 6 through June 30, 1992, with assignment of a 30 percent evaluation effective July 1, 1992. VA conducted a special psychiatric examination of the veteran in May 1994. Among other things, it was reported that he was then employed part time as a welder, but had completely isolated himself from individuals because they persisted in sneaking up behind him and provoking symptomatology associated with PTSD. The examination concluded in a diagnosis of PTSD with strong depressive trends. During the course of a June 1994 VA special psychiatric examination the veteran reported that he isolates himself and withdraws from people, is agitated at times, has trouble sleeping and racing thoughts, experiences trouble concentrating and self-deprecatory thoughts and depression, and has a variable appetite. PTSD with associated dysthymia was diagnosed. In an August 1994 letter of record a VA psychologist reported on the veteran's psychotherapy treatment program. He stated that despite his progress in completing the program, he still experienced intrusive thoughts, limited sleep, nightmares, irritability, limited frustration tolerance, and anger control problems. He continued to experience avoidance symptoms, but had learned to cope with some of them. In September 1996 a VA staff psychologist reported that the veteran's PTSD continued to be productive of severe symptomatology which caused him to miss work occasionally. While he maintained a fairly stable family life, he continued to remain isolated. His most frequently treated problem was emotional numbing and attacks of rage. He reacted with anger, depression, and anxiety to abrupt changes in work assignments. He remained marginally fit for employment. The veteran presented testimony before a Hearing Officer at the RO in February 1997. He elaborated on the disabling manifestations of PTSD. Private psychotherapy reports dated in 1997 show the veteran's symptoms were reported to remain severe. The veteran was hospitalized by VA in June 1997 for psychiatric disorders for which service connection has not been granted. Associated with the claims file are VA outpatient treatment reports showing the veteran's ongoing psychotherapy throughout the 1990's. VA conducted a special psychiatric examination of the veteran in July 1999. He had been in receipt of ongoing psychotherapy. He complained of anxiety, depression, paranoia, sleep disturbance, isolation, irritability, rage, and anger. The foregoing symptomatology was said to occur on a daily basis. He reported that he had not worked during the past year because he felt that his symptoms remained ongoing and would not go away. He acknowledged that he could not stand anyone telling him what to do no matter how nicely it is said. He reported that he has no social life. He had been out of his home for the first three months of the year. The veteran complained that he suffered from PTSD which limited him in what he could do. He stated that personal relationships always ended in rage. He considered himself to be living in a hostile environment. He was always on edge trying to protect himself from being hurt. He felt that he could never return to being a person who could interact comfortably with other people. He acknowledged that such difficulty was with himself. The veteran reported that he had been depressed since serving in Vietnam. He did not think that he could take his life, but wished that he could just go away. He reported brief periods of euphoria. With respect to his future, he viewed it in terms of anxiety, depression, isolation, and sadness. He reported that he had to quit his job. He admitted to difficulty concentrating. He was unable to be comfortable with himself. He described limited activities in the domestic environment. On examination he appeared dysphoric. He was well oriented to time, place, person and date. His judgment appeared intact. The examiner reported sleep impairment and depressed mood. PTSD was diagnosed. The Global Assessment of Functioning score was 55 - 68. It was the opinion of the examiner that the veteran's PTSD was responsible for all his symptoms and that it rendered him unemployable. Analysis Initially, the Board finds that the veteran's claim of entitlement to an evaluation in excess of 70 percent for his PTSD is well grounded within the meaning of 38 U.S.C.A. § 5107(a); that is, a plausible claim has been presented. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In general, an allegation of increased disability is sufficient to establish a well grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The veteran's assertions concerning the severity of his service-connected PTSD (that are within the competence of a lay party to report) are sufficient to conclude that his claim for an increased evaluation for that disability is well grounded. King v. Brown, 5 Vet. App. 19 (1993). The Board is also satisfied that, as a result of the September 1998 remand of the case to the RO for further development and adjudicative actions, all relevant facts have been properly developed to their full extent and that VA has met its duty to assist. Godwin v. Derwinski, 1 Vet. App. 419 (1991); White v. Derwinski, 1 Vet. App. 519 (1991). A review of the record discloses that the veteran's PTSD is evaluated as 50 percent disabling under Diagnostic Code 9411 of the VA Schedule for Rating Disabilities. The Board is of the opinion that the previous criteria for rating mental disorders is more favorable to the veteran's claim and his psychiatric disability is discussed in this regard. The Board finds that the current 70 percent evaluation contemplates severe social and industrial impairment. As was reported earlier, the veteran's therapists have repeatedly categorized his overall PTSD symptomatology as severe in nature, thereby warranting at least the current 70 percent evaluation. However, the Board finds that the evidentiary record is clear in showing that the appellant's PTSD is more disabling than is contemplated in the current evaluation. The maximum schedular evaluation of 100 percent requires that the attitudes of all contacts except the most intimate be so adversely affected as to result in virtual isolation in the community. Alternatively, 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 warrant a 100 percent evaluation. Finally, a 100 percent evaluation is warranted if a veteran is demonstrably unable to obtain or retain employment due to PTSD. 38 C.F.R. § 4.132. This is the veteran's case. As the Board discussed in the foregoing paragraphs, VA and non-VA examiners have categorized the veteran's PTSD symptomatology as severe in nature. The clinical manifestations of PTSD have been shown to adversely affect the veteran's adjustment in a social or industrial setting to a severe degree. As to whether the veteran is totally disabled due to PTSD, the Board acknowledges that competent medical opinion has already been expressed identifying PTSD as the singular reason for the veteran's inability to work. The evidentiary record in general shows that the veteran requires ongoing psychotherapy for PTSD symptomatologic manifestations which are intense and unrelenting so as to have affected him in his daily life situation. It is clear from the record that the veteran, who has admitted as much, is unable to acclimate himself in a social or industrial setting. His absence from the labor market and social isolation of many years standing has rendered him a poor candidate for even the most minimal kind of employment. From a review of the record it appears unlikely that the veteran could return to a structured environment as he is unable to withstand even the pressures of his life style of many years which has involved no meaningful social or industrial interaction. Accordingly three of the criteria for a 100 percent rating are independently met in the veteran's case. Johnson v. Brown, 7 Vet. App. 95, 97 (1994). In this regard, the veteran is socially isolated, he suffers from disturbed thought and behavioral processes associated with almost all daily activities, and most of all, the veteran is demonstrably unable to work. For the foregoing reasons, the Board concludes that the record supports a grant of entitlement to a 100 percent evaluation for PTSD. 38 C.F.R. § 4.132; Diagnostic Code 9411 (effective prior to November 7, 1996). In view of the Board's determination granting a 100 percent schedular rating for PTSD under the previous criteria, the Board need not evaluate the propriety of rating the veteran under the amended criteria which became effective November 7, 1996. ORDER Entitlement to a 100 percent evaluation for PTSD is granted, subject to the governing criteria applicable to the payment of monetary benefits. RONALD R. BOSCH Member, Board of Veterans' Appeals