Citation Nr: 0001283 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 98-10 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to a rating in excess of 10 percent for an initial award for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Amanda Blackmon, Counsel INTRODUCTION The appellant served on active duty from July 1964 until his retirement from service in January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office. In a December 1997 rating decision the RO granted service connection for post- traumatic stress disorder, for which a 10 percent rating evaluation was assigned. The record reflects that a notice of disagreement with this rating determination was filed in April 1998. A statement of the case was issued in May 1998. The appellant thereafter filed his substantive appeal in this matter in June 1998. FINDINGS OF FACT 1. All available, relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The appellant's post traumatic stress disorder is currently manifested by depression, anxiety, flashbacks, intrusive thoughts, sleep difficulties, nightmares, and is productive of no more than mild or transient symptoms of social and industrial impairment. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for post traumatic stress disorder have not been met. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1999); 38 C.F.R. § 4.130, Diagnostic Code 9411 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board has finds that the appellant's claim is well grounded pursuant to 38 U.S.C.A. § 5107 in that his claim is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). This finding is based upon the evidentiary assertions by the appellant, and medical evidence of record documenting treatment for the claimed disability. Drosky v. Brown, 10 Vet. App. 251, 254 (1997) (citing Proscelle v. Derwinski, 2 Vet. App. 629 (1992); King v. Brown, 5 Vet. App. 19 (1993). Once it has been determined that a claim is well grounded, as here, VA has a statutory duty to assist the appellant in the development of evidence pertinent to that claim. 38 U.S.C.A. § 5107. The Board is satisfied that all procurable data has been assembled for appellate review, and that the duty to assist as mandated by 38 U.S.C.A. § 5107 has been met. See Hayre v. West, No. 98- 7046 (Fed. Cir. Aug. 16. 1999). Under applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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 VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). It is essential that each disability be viewed in relation to its history, and that medical examinations are accurately and fully described emphasizing limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Medical evaluation reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. As noted above, service connection was established for post- traumatic stress disorder in a December 1997 rating decision with a 10 percent evaluation effective from May 21, 1997, the date of the claim. As the appellant takes issue with the initial rating assigned following a grant of service connection, the Board must evaluate the relevant evidence since military service. In doing so, separate ratings may assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Factual Background A review of the service medical records disclosed a September 1982 clinical report that indicated that the appellant had been under care in the mental health clinic since February 1982 for anxiety and depression. It was noted that the appellant had "responded quite well to psychotherapy and tricyclic antidepressant therapy." It was further noted that the appellant was presently on medication. With respect to the appellant's evaluation for commissioned status, the examiner indicated that the appellant's "job performance had been outstanding, and noted that there was no impairment in his thinking or judgment." The appellant underwent his separation examination in November 1984. The medical examination report indicated that the appellant reported a history of depression or worry. The examiner noted that the appellant was treated for depression, and anxiety. The appellant was evaluated without any psychiatric defect on examination. There was no diagnostic impression of a psychiatric disorder noted. In conjunction with an earlier claim for benefits, the appellant underwent VA examination in May 1985. The appellant reported no significant mental or emotional problems during service, to include the six month period in which the appellant served as a munitions supervisor while stationed in Vietnam. The appellant reported that he was mentally and emotionally without problems, until three years earlier when he served as a recruiting officer. At that time, he experienced a sudden onset of significant depression accompanied by some anxiety. He was treated with anti- depressant medication, and seen on an outpatient basis once monthly for medication checks. He received no significant psychotherapy during this period. The appellant reported improvement with use of medication, and that medication was thereafter discontinued. He indicated that he had not experienced any recurrence of any significant depression or anxiety since that time, and believed that he had been restored to his previous mental and emotional state. The appellant did report that he noticed a recent intolerance to things going wrong, tendency to overreact, and tendency to be more of a perfectionist over the past six to eight months. It was noted that the appellant was presently a college student, and expected to receive his degree within the next six to nine months, following completion of his remaining credits. It was also noted that the appellant was married with children, enjoyed socializing, and occupied himself with activities in and around the home. On examination, the appellant was evaluated as alert and oriented, and appeared his stated age. His mood was one of pleasant cooperation. His affect was appropriate to his mood. There was no evidence of psychosis, thought disorder, hallucination, illusion or delusion on examination. The examiner further noted that there was no evidence of significant depression, anxiety, or other neurosis present. There was also no evidence of significant personality disorder. The appellant's insight was good, and his judgment was intact. In his assessment, the examiner noted that the appellant provided a history of sudden onset dysthymic disorder during service that was successfully treated with anti-depressant medication. It was noted that the appellant has been off medication for approximately two years without recurrence of his symptoms. It was the examiner's opinion that the appellant was at that time asymptomatic of any significant depressive or anxiety related illness. A January 1995 clinical report indicated that the appellant was referred for consultation with a social worker, following clinical evaluation of elevated liver enzyme levels. During the consultation, detoxification options were discussed, but the appellant reportedly declined treatment at that time. He apparently agreed to attend Alcoholics Anonymous (AA) meetings, and to contact the VA counselor if he was unable to abstain from alcohol use. In May 1997, a claim for service connection for post- traumatic stress disorder (PTSD) was filed on behalf of the appellant by his service representative. It was noted that the appellant maintained that his current psychiatric symptomatology was attributable to stressors associated with incidents that occurred during his 20 year military career and, in particular, events that occurred while he was stationed in Vietnam. It was noted that the appellant had been seen by VA counselors. By letter dated in June 1997, the RO requested the appellant to provide information concerning his stressful events of service. In his reply, dated in June 1997, the appellant reported that a close friend of his was lost at sea. He reported that he was selected to replace this friend, who was among that ship's "key personnel." The appellant reported that he was nervous because of his fear of the water, and the sensitive nature of the circumstances surrounding this assignment. The appellant also provided a copy of a news article, which documented the appellant's efforts in attempting to save an enlisted man who had fallen overboard despite his own injuries, and of his receipt of a medal for heroism in recognition of his rescue attempt. VA outpatient reports document intermittent individual consultation with VA social worker from December 1996 to June 1997. During these sessions, the appellant discussed his friend, who was lost at sea, and his feelings of guilt associated with this incident. In that context, the appellant noted that he "advised his friend on the choice he made to be on that ship." The appellant also reported that he had been involved in a similar accident, attempting to save an enlisted man who went overboard. He reported that he used to have nightmares about the incident, and wanted to talk with others about the "trauma from service," but noted that no one seemed to care. These reports show that the appellant was evaluated with PTSD, depression, and alcohol abuse. In a January 1997 assessment, the counselor indicated that the appellant appeared to be in great pain from losses he'd experienced. It was noted that the appellant reported feeling lost and distanced from his culture, and that he was making efforts to regain a sense of culture. The appellant was noted to continue to drink alcohol, but that his drinking had decreased. The appellant reportedly drank to self- medicate. The counselor noted that the appellant appeared to be motivated to treatment. By June 1997, the appellant reported feeling frustrated and stressed due to his low back condition and current treatment plan. He also reported some anxiety due to his son's scheduled trip to the lake, which triggered the appellant's thoughts of his own near drowning experience, and the drowning of his friend. It was noted that the appellant had been experiencing numerous stressors, to include chronic pain, being a newlywed, and recent contact with his illegitimate adult son. The appellant reported a failing sense of motivation. The appellant reportedly lacked 18 credits toward his degree. The appellant reported feeling irritable and frustrated due to his refraining from drinking. The appellant underwent VA PTSD examination in July 1997. The medical examination report indicated that the appellant was under treatment for alcohol dependence and PTSD symptoms at the mental health clinic. The report noted that the appellant had previously received psychiatric treatment. In that context, it was noted that the appellant was seen during service in 1970 for stress related to an accident at sea. It was noted that the appellant responded well to medication. The appellant reportedly committed himself to the hospital for evaluation following his divorce. He indicated that this admission dealt only with issues of his divorce. The appellant was next referred to a social worker and the VA substance abuse treatment program in 1995, after which he began his current outpatient treatment. It was noted that the appellant entered military service shortly after his eighteenth birthday, and served in Vietnam in 1971. Following his release from service, the appellant joined the police force. The appellant reported that his "job has gone well since then." He denied any occupational problems. He divorced his first wife in 1990, and obtained custody of his son. It was noted that the appellant has two adult daughters. The appellant had remarried two months earlier, and was noted to reside with his new wife and son. The appellant reported subjective complaints of very poor sleep, night sweats, frequent nightmares, flashbacks, and intrusive thoughts about past traumatic events. Relative to these symptoms, the appellant reported that he experiences these symptoms on a regular basis. He reported that his symptoms were of such severity as to "greatly disturb his mood and ability to be around people, but they do not impair his vocational performance." He reported no significant remissions of any period of time. The examiner indicated that the appellant had lost no time from work because of his symptoms, but noted that he often needs to be by himself and becomes tearful. The appellant reported that he avoided water and watercraft. He indicated that his sons enjoy spending time at the lake, which causes the appellant much anxiety and distress. The appellant noted that he often goes off by himself, where no one can hear him, and weeps. He reported feeling that he is going crazy at times, and sometimes hears someone calling to him. During the interview, the appellant was oriented in all spheres. His personal hygiene was noted to be normal. His appetite, and interest and pleasure were noted to be intact. The appellant reported that he enjoyed riding horses, running, working out, and dancing. The examiner noted that the appellant's concentration was intact. The appellant's work performance was noted to be good. The appellant acknowledged that he drank two to three six packs per week. It was noted that he was not attending any substance abuse treatment program, and reported that he was unable to do so because of his job. The appellant exhibited no impairment of thought processes or communication. There was no evidence of delusion, hallucination, or inappropriate behavior. He denied suicidal or homicidal ideation. His long and short term memory were intact. His mood was depressed, and his affect was constricted and intense. The examiner noted that the appellant frequently became tearful during the interview. In his assessment, the examiner indicated that the appellant was exposed to a traumatic event, which involved threatened death to himself and others, due to his own accident and his friend's death. The examiner noted that the appellant was re-experiencing the traumas by both recurrent and intrusive recollections, nightmares, and flashbacks. It was noted that the appellant avoids stimuli associated with his trauma. It was further noted that the appellant described symptoms of increased arousal and, particularly, difficulty sleeping, which were noted to have existed since 1978 and reportedly caused clinically significant distress and impairment in the appellant's social and intrapsychic functioning. In his assessment, the examiner further noted that: The [appellant] describes a long and intense history of post-traumatic stress disorder symptoms associated with heavy alcohol use. His current presentation is not consistent with either the evaluation by the psychiatrist [in service], nor with the report of the [appellant's] own description of his symptoms during first psychiatric evaluation by the VA in 1985. There appears to be no reason to doubt the existence of the traumatic events, but the symptoms which he currently describes seem to be a recent phenomenon and the veracity of his report is called into question by the discordance between the symptoms and history which he describes currently and that which was described in 1985. In other words, he denied all the complaints at the former time. The heavy alcohol use to which he admits and which is evident by his elevated liver enzymes during periods of heavy drinking may play a large role in his current distress. As there is no objective way to evaluate the presence or absence of [his] subjective symptoms of PTSD, one is forced to render an opinion based on the [appellant's] current description of his symptoms. At best, one might conclude that he is suffering from delayed onset PTSD symptoms, even if he had been symptom-free for the past dew decades. The diagnostic impression was PTSD, chronic, with delayed onset, mild, causing subjective distress but not objective impairment in social or vocational functioning, and alcohol dependence, partial sustained remission (Axis I). The examiner noted that there were no current stressors. A Global Assessment of Functioning (GAF) score of 70 was noted. By rating action, dated in December 1997, service connection for PTSD was granted. A 10 percent rating evaluation was assigned for this disability under Diagnostic Code 9411, effective May 21, 1997. In correspondence, dated in April 1998, the appellant indicated that the events of service were devastating. He indicated that he continues to experience these events and, on occasion, feels as though they just happened. The appellant reported that he was unable to complete course work toward his degree because of his psychological symptoms. He also noted that his first marriage suffered and ended in divorce as a result of his PTSD condition. He credited his children with providing him with support, and noted that he remained particularly close to them. However, the appellant indicated that he was fearful of developing friendships with others for fear of losing them. The appellant indicated that he has continued to work, but does so out of necessity. He noted his belief that he would never receive a promotion. It was the appellant's contention that he continued to be greatly affected by the events in service, and that his PTSD symptoms were quite severe. Analysis The severity of a PTSD is ascertained, for VA rating purposes, by application of the criteria set forth in Diagnostic Code 9411 of VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4. The Board notes that the regulations governing the assessment of PTSD were revised on November 7, 1996, and 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 should be applied unless provided otherwise by statute. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). However, as the appellant's claim was filed in May 1997, regulations in effect prior to November 7, 1996 are not material to his claim. Under the revised criteria of Diagnostic Code 9411, a 10 percent rating is warranted where the disorder is manifested by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or where the symptoms are controlled by continuous medication. 38 C.F.R. § 4.130. A 30 percent rating is warranted where the disorder is manifested by occupational and social impairment with an 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; and mild memory loss (such as forgetting names, directions, and recent events). Id. The Board notes that the appellant contends that he experiences symptoms of depressed mood, anxiety, suspiciousness, with chronic sleep disturbance and mild memory loss resulting in social and industrial incapacity. In this case, the evidence establishes that the appellant's condition is primarily manifested by a reexperiencing of the drowning and near-drowning trauma during service. The appellant experiences intrusive thoughts, flashbacks, nightmares, and avoids stimuli related to water. The appellant has described subjective symptoms of distress which impact upon his social and industrial capabilities. However, on VA examination, in 1997, the examiner found no objective evidence of impairment in social and vocational functioning. In this regard, the examiner found the appellant's PTSD condition to be manifested by no more than mild symptomatology. His first marriage ended in divorce after 25 years; and, the appellant has recently remarried. While he attributed the failure of his first marriage to his psychiatric symptomatology, he acknowledged that matters related only to his divorce were discussed in the context of his treatment proximate to his 1992 divorce. The evidence further demonstrates that the appellant maintains a close relationship with his children, and has re-established contact with an adult son. Moreover, the appellant has not indicated that his present marital relationship has been affected by his PTSD symptoms. The appellant has also described his involvement in several social activities such as riding horses, running, dancing, and working out. The appellant has indicated that he secured employment as a police officer following his release from service, and that he has continued to work in that capacity since that time. The appellant has denied any occupational problems during the tenure of his career. He has noted a belief that he would not be promoted, but has not specifically addressed the reasons for this belief. At most, the appellant has noted that he works out of necessity. The appellant has further indicated that he was unable to concentrate and, thus, did not complete the remaining credit hours toward his degree. While the appellant has not provided the approximate date when he discontinued his schooling, the record shows that the appellant enrolled in school in approximately 1985. Psychiatric evaluation conducted proximate to this period showed no objective clinical evidence of psychiatric impairment. In fact, the appellant reported that he had not experienced any symptoms of depression or anxiety, and noted that he had been restored to his previous mental and emotional state. It was the examiner's finding that the appellant was asymptomatic. Following a thorough and considered review of the assembled evidence, the Board finds that the criteria for a rating in excess of the assigned 10 percent is not demonstrated in this case. While the appellant continues to be affected by stimuli related to the traumatic experiences, his PTSD condition has not been shown to be productive of more than mild or transient symptoms. However, the totality of his symptoms have not been shown, by the evidence of record, to result in decreased work efficiency, and intermittent periods of inability to perform occupational tasks as would be required for a higher rating evaluation. Consequently, it is the opinion of the Board that the criteria for a higher rating evaluation is not shown. The current medical evidence, as previously discussed, does not reflect that the degree of impairment resulting from PTSD more nearly approximates the criteria required for the next higher evaluation pursuant to 38 C.F.R. § 4.7. As the clear weight of the more probative evidence is against the claim, the benefit of the doubt doctrine is not for application. ORDER A rating in excess of 10 percent for post-traumatic stress disorder is denied. Deborah W. Singleton Member, Board of Veterans' Appeals