Citation Nr: 0007468 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 94-46 887A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to a rating in excess of 50 percent for post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Debbie A. Riffe, Associate Counsel INTRODUCTION The veteran served on active duty from April 1967 to April 1970. This case comes to the Board of Veterans' Appeals (Board) from an October 1993 RO decision which granted service connection for PTSD and assigned a 10 percent evaluation, effective from March 1992. In a December 1998 action, the RO assigned a 50 percent rating for PTSD, effective from March 1992. The veteran appeals for a higher rating. The Board notes that the veteran submitted a VA Form 9 in December 1994 and in July 1996. On the latter, he indicated a desire for a personal hearing before a member of the Board in Washington, D.C. The Board contacted the veteran by telephone in February 2000 to clarify whether he still desired a hearing, and the veteran stated that he no longer wanted a hearing and requested the Board to proceed with its review of his appeal. FINDING OF FACT The veteran's service-connected PTSD produces no more than considerable social and industrial impairment; and the condition produces no more than occupational and social impairment with reduced reliability and productivity due to various symptoms. CONCLUSION OF LAW The veteran's PTSD is not more than 50 percent disabling. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996), and § 4.130, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran served on active duty in the Army from April 1967 to April 1970. Service department records show that he served as a construction equipment operator in Vietnam from December 1967 to December 1968. Service medical records do not show any treatment or diagnosis of a psychiatric disorder. An October 1990 VA counseling intake assessment shows the veteran sought marriage counseling. He gave a past history of alcohol abuse, and he reported current marijuana use. The assessment indicated that he was somewhat emotionally constricted in his marital relationship and experienced a great deal of anger and anxiety which he "self-medicates" with cannabis. In March 1992, the veteran submitted a claim for service connection for PTSD. A November 1992 VA social survey indicates that the veteran's primary area of employment was in construction and that he currently worked as a cement finisher. The veteran acknowledged abusing drugs and alcohol. He noted that he has never had inpatient psychiatric care and had been seen at the VA for a year concerning PTSD. He reported that he was taking an anti-depressant and an anti-anxiety drug. He reported that he was currently depressed, had no self-esteem, experienced flashbacks and nightmares/night sweats, struck out at his wife at night, easily went into rages without reason, distrusted others including his wife, and was a loner with difficulty socializing. On a November 1992 VA examination, the veteran complained of experiencing signs and symptoms compatible with PTSD, to include recurrent and intrusive distressing recollections of events in Vietnam, flashbacks and possible hallucinations, avoidance of stimuli and thoughts associated with trauma, markedly diminished interest in significant activities, feelings of detachment or estrangement from others including family, a sense of foreshortened future, and increased arousal symptoms (such as difficulty sleeping, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response). The veteran reported that he has had difficulty in getting along with other men and has been close to losing his temper at work or jeopardizing his job due to inappropriate, unprovoked, and aggressive episodes. He stated that with the help of ongoing therapy he has been able to at least maintain the status quo. On examination, the veteran was cooperative. His affect was appropriate to the purpose of the interview. His mood was "okay". His thought processes were within normal limits. His thought content was negative for any suicidal ideation, intention or plan. There was no homicidal or paranoid ideation or delusions or hallucinations. His attention span, concentration, memory, and orientation were within normal limits. He denied any drug or alcohol use. The diagnosis was PTSD, chronic, mild to moderate in severity. The Global Assessment of Functioning (GAF) scale score was approximately 60 currently and 70 (highest) in the past year. The examiner commented that the veteran appeared capable of managing his own benefit payments. A March 1993 VA outpatient record from the Chemical Dependency Clinic (CDC) indicates that the veteran was seen on an initial intake visit. It was noted that he continued to feel depressed on an ongoing basis; that he denied suicidal ideation although it had crossed his mind; and that he seemed to want to work on his relationship with his wife who expressed her unhappiness, frustration, and pain. VA outpatient records dated from April to September 1993 show that the veteran attended therapy sessions with his wife and children in the CDC. A doctor's note in April 1993 indicates that the veteran's concentration and sleep were better and that he could better handle situations at home when he had thoughts of Vietnam. In an October 1993 decision, the RO granted service connection and a 10 percent rating for PTSD, effective March 27, 1992, the date of receipt of the claim. Medical records from Community Memorial Hospital show that the veteran was hospitalized in December 1993 for syncope. At the time, he also complained of anterior chest pain. An examination was unremarkable. The final diagnoses were syncope, chest pain, and history of PTSD. On a January 1994 VA biopsychosocial assessment from the CDC, the veteran reported his substance abuse history. An outpatient note that month indicates that he continued to have daily symptoms of PTSD. A February 1994 VA outpatient record indicates that the veteran was seen in the CDC for a medical evaluation. It was noted that his PTSD symptoms consisted of sleep fragmentation (mild to moderate), startle reflex, and intrusive thoughts. It was also noted that he had quit alcohol, cigarettes, and marijuana and that he had a strained marital relationship. In a statement received in April 1994, the veteran expressed his disagreement with the RO's October 1993 decision, contending that his disability was much more disabling than reflected in his assigned rating. He stated that his symptoms included an unusually severe startle response; that he was a union cement finisher who only worked four months out of the year and that his startle response made his productivity suffer; that he had frequent and violent rages after discovering that a co-worker scared him on purpose; that his symptoms also included severe depression, feelings of worthlessness, frequent nightmares and night sweats, and difficulty sleeping; that he argued daily with his wife and did not have many friends; that he never went out socially with his wife except for therapy; and that he has considered suicide. An April 1994 VA outpatient record from the CDC relates that the veteran remained abstinent from alcohol and marijuana and that his relationship with his wife began to improve since their participation in couples therapy. The veteran continued to complain of depression over and above his PTSD symptoms. A January 1995 VA outpatient record from the CDC indicates that the veteran continued to do well in his recovery and remained abstinent of nicotine and caffeine, with short relapses regarding beer and cannabis. In a February 1995 letter, Richard Cohen, M.D., indicated that he saw the veteran with a complaint of headaches and that there had been no discussion as to whether or not they were a result of PTSD. An August 1995 VA outpatient record from the CDC indicates that the veteran relapsed on alcohol and marijuana and that he desired to resume clinic visits for support with abstinence. In a statement received in November 1995, the veteran requested re-evaluation of his PTSD. He stated that his life was a "nightmare" and that his job had become increasingly difficult due to his paranoia. He stated that his boss delighted in doing things to provoke his startle response. He indicated that as he would not be able to find a job that would pay what he was currently earning he endured the abuse at work. He indicated that he had great difficulty when Orientals were around and that his job site with its noises and smells contained reminders evoking daily flashbacks of Vietnam. He stated that he has plotted suicide and that PTSD has destroyed a normal relationship with his family. In a statement received in November 1995, the veteran's wife indicated that their marriage was a "shambles," attributing it to the veteran's drastic behavioral change since returning from Vietnam. She described the veteran's unpredictable behavior, nightmares, isolation from others, strained relationship with the family, anger episodes, humiliation at work, self-medication with alcohol and marijuana, obsessions, and emotional unavailability. She indicated that she could not rely on the veteran to remember from one day to the next what he said he would do (even making lists as a reminder did not help him when he was on a "downhill") and that he could not function enough to follow through with his responsibilities. She related that their children did not like to be left alone with the veteran for too long, fearing his mood changes and episodes of rage. A December 1995 VA outpatient record from the CDC indicates that the veteran remained abstinent from alcohol although his marital relationship was dissolving. In a January 1996 statement, the veteran indicated that he could not tolerate life without taking Prozac daily because otherwise he would become angry and lose control. A VA outpatient record from the CDC indicates in May 1996 that the veteran has been off all psychoactive drugs for two months. On another outpatient record in July 1996, a doctor indicated that the veteran had been feeling better ever since his abstinence from alcohol and marijuana and that he was more alert at work and his marital problems have lessened. The doctor noted that he would compose a letter in support of raising the veteran's disability rating from 10 percent to 30 percent, as the veteran was moderately disabled and occupational retraining was indicated. In a July 1996 letter, a VA staff doctor in the CDC indicated that the veteran's PTSD symptoms impacted dramatically on his occupational and social functioning, despite his ability to work and the fact that he had a wife and family. He stated that the veteran was trained in construction cement work but that his ability to perform effectively on a continuous basis was severely impaired, noting that the veteran's severe startle reaction to sudden loud noises in the workplace overrode his own equipment sounds and caused him to "drop down on all fours." The doctor stated that this reaction could be dangerous on construction sites, that co-workers made fun of such frequent reactions, and that new co-workers evoked suspiciousness (as had new replacements in Vietnam). He indicated that socially the veteran's cue-related flashbacks and avoidant behaviors markedly diminished family relationships. He noted that the veteran's symptoms have worsened since he was in good alcohol recovery. The doctor concluded that the overall effect of the veteran's PTSD symptoms was that he was severely limited occupationally; that his work was seasonal (four to five months) and his symptoms precluded finding suitable employment at other locations; that his symptoms substantially impaired his social relationships; and that the chronic strain of PTSD symptoms on him and his wife made their marital relationship precarious. On an October 1996 statement, the veteran indicated that he would not be functioning at all on the job but for the fact that he was a seasonal employee. He stated that since Vietnam he has become a loner in life including on the job site and that his co-workers delighted in seeing him in agony over unexpected noises, sirens, and visitors (those of Oriental appearance). He suspected that his hospitalization in December 1993 was due to the stress he worked with on a continual basis and that he was relieved of this stress in the winter months when he was not working. VA outpatient records from November 1996 to January 1997 show that the veteran was seen for individual counseling sessions to discuss his anxiety and relationships. On a February 1997 VA examination, the veteran reported that over the past few years his condition had not changed dramatically, although over the past four months he had been feeling worse regarding his sleep since he stopped drinking alcohol and using marijuana. He reported that he worked in construction as a cement finisher usually six months out of the year and that his symptoms were much worse when he worked because he encountered people and situations that triggered many of his symptoms. He indicated that he might lash out, with his difficulty in controlling his temper. He reported difficulty in dealing with co-workers and was afraid of losing his job. He stated that he was trying to change his job to work in the post office where he would be working alone most of the time. The veteran indicated that he was presently taking Prozac with minimal response and that when he was not working he stayed home and tried to avoid people. On examination, the veteran was calm and cooperative, with no psychomotor agitation or retardation. There were no tremors or abnormal movements. He had good eye contact, and his mood was good. His affect was appropriate and of full range. His thought processes and content were within normal limits. His cognition was intact and his insight and judgment were good. The diagnosis was PTSD, chronic, moderate. The GAF scale score was 65 currently and 70 over the past year. The examiner commented that it appeared that the veteran's PTSD symptoms fluctuated, depending on his job situation, but that it seemed that his symptoms were not severe enough to significantly impair his job performance. The examiner stated that nevertheless it might be better for him to work in a job with less stimuli to trigger his PTSD symptoms, as noted by the veteran. A March 1997 VA outpatient record indicates that the veteran complained of intermittent chest pain provoked by anxiety and anger. A work-up showed that he was non-cardiac. A July 1998 VA outpatient record from the CDC indicates that the veteran had a difficult time since his last visit and that his PTSD symptoms had increased. It was noted that he had changed jobs and bosses which was stressful and that his irritability had increased. The veteran reported that he relapsed with alcohol and was attending individual counseling so that he could deal with his rage. He requested inpatient treatment for PTSD in the coming winter when he would not be doing his usual construction work. An October 1998 record notes that the veteran has remained abstinent from alcohol since June and that he continued occasional use of cannabis as a stress reduction agent, although it caused difficulties with his wife. It was noted that the veteran continued to have symptoms of PTSD, which had worsened initially when he tried to moderate his alcohol use but now had stopped worsening from the cessation of alcohol because the veteran appeared to be in control of alcohol abstinence. On an October 1998 VA examination, the veteran reported that he was seeking a higher rating for PTSD due to more frequent nightmares and more intensive symptoms. He reported frequent episodes of depression, a severe startle reaction to loud noises, and an increasingly low tolerance for people. He related being hypervigilant to stimuli, such as Oriental voices. The veteran reported that he worked six months a year in construction as a cement finisher and that his symptoms worsened during that period. On examination, the veteran's affect and demeanor were appropriate, and he was oriented in all three spheres. His insight and judgment were poor. His cognition was intact. The veteran related that he heard voices in the past, particularly during episodes of suicidal ideation when he wanted to kill himself in his car or use a chain saw on himself. He had been on several medications and was currently taking Wellbutrin. He was currently being seen in the VA's PTSD clinic and CDC. He was considered competent to handle VA funds. He underwent psychological testing that revealed results consistent with moderate to severe depression, combat-related PTSD, and an affective disturbance such as PTSD. The testing revealed a man who was highly vulnerable in the past, moody and opinionated, and there was evidence of possible thought disorder. Also, the veteran was found to be "characterological" in the sense that that was consistent with his chemical dependency history. The diagnosis was PTSD, moderate, chronic. The GAF scale score was 53. In a December 1998 determination, the RO increased the rating for PTSD to 50 percent, effective March 27, 1992. A January 1999 VA outpatient record from the CDC indicates that the veteran has been experiencing increased irritability and reactiveness while on his medications. VA medical records show that the veteran was hospitalized from February to March 1999 for PTSD. On admission, he was considered competent and employed. While in the hospital, he attended individual and group therapy. He was diagnosed primarily with PTSD and secondarily with cannabinoid dependence (in early full remission) and alcohol abuse (episodic). The GAF scale score was 54 currently and 50 (highest) in the past year. In an April 1999 decision, the RO granted a temporary total evaluation for PTSD due to hospital treatment in excess of 21 days, pursuant to 38 C.F.R. § 4.29, effective from February 1, 1999 through March 1999. II. Analysis Initially, it is noted that the veteran's claim for a rating higher than 50 percent for PTSD is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. The Board is satisfied that all relevant evidence has been properly developed and that no further assistance is required to comply with the duty to assist as mandated by 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. The Board notes that the regulations pertaining to evaluating mental disorders were revised effective November 7, 1996, during the pendency of the present appeal. Under the circumstances of this case, either the old or new rating criteria may apply, whichever are most favorable to the veteran. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Under the old rating criteria, in effect prior to November 7, 1996, a 50 percent evaluation for PTSD requires that the ability to establish or maintain effective or favorable relationships with people is considerably impaired and that by reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. A 70 percent evaluation for PTSD requires that the ability to establish and maintain effective or favorable relationships with people is severely impaired and that psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent evaluation is warranted where the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; or where there are 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; or the individual is demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). Under the new rating criteria, in effect since November 7, 1996, a 50 percent evaluation for PTSD requires 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. A 70 percent evaluation 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); inability to establish and maintain effective relationships. A 100 percent evaluation requires 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 (1999). In addition to his service-connected PTSD, the veteran has non-service-connected alcohol and drug dependence which has been the subject of extensive treatment during the period of the appeal. Impairment from the non-service-connected substance abuse may not be considered in support of a higher compensation rating. 38 C.F.R. § 4.14. The veteran contends that his service-connected PTSD is more disabling than is reflected by his 50 percent rating. However, after consideration of all evidence of record, the Board concludes that the veteran's PTSD is not more than 50 percent disabling; it does not meet the rating criteria for a 70 percent rating under either the old or new regulations. The medical evidence shows that the veteran was primarily treated for PTSD at VA clinics. Since 1990, he has received counseling and therapy with regard to improving his relationships with his family and coping with PTSD. He underwent three VA examinations, in November 1992, February 1997, and October 1998, and was hospitalized on one occasion from February to March 1999. On the medical records and in statements, the veteran related that he has worked a seasonal job in construction as a cement finisher for a number of years and that the job has been a major source of stress for him, exacerbating his PTSD symptoms. On the November 1992 VA examination, his GAF score was 60, representing moderate symptoms or moderate difficulty in social or occupational functioning. In the opinion of one VA doctor expressed in a July 1996 letter, the veteran's PTSD symptoms severely limited him occupationally and substantially impaired his social relationships. On the February 1997 VA examination, the veteran's GAF score was 65, representing some mild symptoms or some difficulty in social or occupational functioning but generally functioning pretty well with some meaningful interpersonal relationships. The VA examiner stated that the veteran's symptoms were not severe enough to significantly impair his job performance. On the VA examination in October 1998 and VA hospitalization from February to March 1999, the veteran's GAF score was 53 and 54, respectively, representing moderate symptoms. The 1998 VA examiner opined that the veteran was moderately industrially handicapped. Considering the old rating criteria, the veteran's overall disability picture does not reflect that his condition is productive of more than considerable (50 percent) social and industrial impairment. The veteran is gainfully, if seasonally, employed and working as a cement finisher. On all occasions when the veteran's overall occupational and social impairment level was assessed, his GAF score reflected that his PTSD was no more than moderately disabling. The one exception to this was on the veteran's VA hospital report in March 1999, which indicated that his GAF score in the past year was 50, representing serious symptoms or severe impairment in social and occupational functioning. Nevertheless, this finding is inconsistent with the GAF score of 53 furnished just a few months prior to the hospitalization at the time of the October 1998 VA examination, which is viewed as a more accurate assessment of the severity of the veteran's PTSD because it was based on a contemporaneous and comprehensive examination. Additionally, the VA doctor's opinion in the July 1996 letter described the veteran's occupational impairment as severely limited by PTSD symptoms. That same doctor, however, also opined on an outpatient record earlier in the month that the veteran was moderately disabled. The veteran and his wife submitted letters in November 1995 describing the harmful effects of PTSD on the veteran's work and family; however, after review of the entire record, the Board finds that the veteran's PTSD rating does not warrant a rating higher than 50 percent. The veteran's overall psychiatric disability picture also does not meet the new rating criteria for a 70 percent rating; PTSD symptoms do not result in occupational and social impairment with deficiencies in most areas (such as work, family relations, judgment, thinking, and mood) due to various symptoms. There is no objective evidence of obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; neglect of personal appearance and hygiene; and inability to establish and maintain effective relationships. The veteran's poor insight and judgment, episodes of irritability and rage, and significant difficulty in establishing and maintaining work and social relationships are reflective of the criteria for a 50 percent rating. In sum, the evidence demonstrates that the veteran's PTSD produces no more than occupational and social impairment with reduced reliability and productivity due to various symptoms. No more than a 50 percent rating is warranted under the new criteria. In conclusion, the Board finds that the preponderance of the evidence demonstrataes that the level of the veteran's social and occupational impairment from PTSD is no more than 50 percent disabling under either the old or new rating criteria. Thus, the benefit-of-the-doubt doctrine is inapplicable, and a higher rating for PTSD must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 50 percent for PTSD is denied. L. W. TOBIN Member, Board of Veterans' Appeals