Citation Nr: 0002923 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 96-00 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to an increased disability rating for post- traumatic stress disorder (PTSD), currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and Dr. Jose A. Juarvez ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The veteran served on active duty from January 1952 to June 1954. This appeal comes before the Board of Veterans' Appeals (Board) from a March 1995 rating decision of the San Juan, Puerto Rico, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied entitlement to a disability rating in excess of 30 percent for PTSD. In May 1998, the Board issued a decision denying an increased rating for PTSD. In March 1999, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999)(hereinafter, "the Court") vacated the May 1998 Board decision, and remanded the case to the Board to obtain translation of documents in the claims file from Spanish into English, and to readjudicate the appeal. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The evidence reasonably shows that the veteran is unable to retain employment as a result of his PTSD. CONCLUSION OF LAW The criteria for a 100 percent disability rating for PTSD are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996); 38 C.F.R. §§ 4.2, 4.7, 4.10 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking a disability rating greater than 30 percent for his service-connected PTSD. A person who submits a claim for veteran's benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The Court has defined a well grounded claim as a plausible claim; one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A claim for an increased rating for a disability is generally well grounded when an appellant indicates that the severity of the disability has increased. See Proscelle v. Derwinski, 2 Vet. App. 629, 631-32 (1992). The veteran claims that his PTSD has worsened, and the Board finds that his claim for an increased rating is a well grounded claim. When a veteran has presented a well grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), VA has a duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). In this case, the Board finds that the facts relevant to the veteran's claim have been properly developed, such that VA has satisfied its statutory obligation to assist the veteran in the development of his claim. Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (1999). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2 (1999). Nevertheless, the present level of disability is of primary concern, and the past medical reports do not have precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. § 4.10 (1999). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (1999). The veteran's PTSD is evaluated under 38 C.F.R. Part 4, Diagnostic Code 9411. While the veteran's appeal for a higher rating has been pending, revised criteria for rating mental disorders, including PTSD, became effective. See 61 Fed. Reg. 52,965 (1996) (codified at 38 C.F.R. Part 4, effective November 6, 1996). The Court has held that when a law or regulation changes after a claim has been filed, but before the administrative appeal process has been concluded, the version most favorable to an appellant applies. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). In the present case, the Board finds that the regulations in effect prior to November 6, 1996 (the former regulations) are more favorable to the veteran. Therefore, the Board will apply that version of the regulations to his claim. Under the former regulations, PTSD was rated as follows: The attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. 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 aggravated energy resulting in profound retreat from mature behavior. Demonstrably unable to obtain or retain employment .................................................. 100 percent Ability to establish and maintain effective or favorable relationships with people is severely impaired. The psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment .............. 70 percent Ability to establish or maintain effective or favorable relationships with people is considerably impaired. By reason of the psychoneurotic symptoms the reliability, flexibility, and efficiency levels are so reduced as to result in considerable industrial impairment ................................................... 50 percent Definite impairment in the ability to establish or maintain effective and wholesome relationships with people. The psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment ..................................... 30 percent Less than criteria for the 30 percent, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment ............ 10 percent There are neurotic symptoms which may somewhat adversely affect relationships with others but which do not cause impairment of working ability ... 0 percent 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). The Court has indicated that satisfaction of any one of the criteria for a 100 percent rating under Diagnostic Code 9411 warrants a grant of a 100 percent rating. Johnson v. Brown, 7 Vet. App. 95, 99 (1994). On VA psychiatric examinations in 1986 and 1987, the veteran reported that while he was serving in Korea, he was wounded by mortar fragments in both legs. He reported that when he was wounded by the mortar fire, three or four of his friends were killed. He reported that he saw a very close friend killed very near him. He reported that he frequently relived those events, and that memories and nightmares about the events made him nervous. He reported that at present he was easily startled by loud noises, and that he had insomnia. He stated that he occasionally heard imaginary voices, and felt that people were following him. The veteran reported that after service he had worked in a factory, but that as of 1986 he had been unemployed for five years. He reported that he was married, and that he spent time socializing with friends and relatives. He stated that he felt afraid when he was around crowds or any kind of confrontation. On examination in August 1986, the VA psychiatrist's diagnosis was PTSD. In an August 1987 examination, the examining psychiatrist noted that the veteran's affect and mood were characterized by chronic depression. The examiner's diagnosis was PTSD, moderately severe. VA outpatient treatment notes from 1991 through 1993 indicated that, in addition to a psychiatric disorder, the veteran has hypertension, diabetes mellitus, and facial paralysis with Bell's palsy. On psychiatric evaluation in March 1993, the veteran reported insomnia, low stamina, and feelings of worthlessness. He reported some impairment in orientation, and he described having everyday forgetfulness. The veteran reported that he had last worked as a security guard, and that by 1991, due to increasing insomnia, he felt that he was not able to work any more. The examiner noted that the veteran was logical and approachable. The examiner observed that the veteran's judgement, insight, and concentration were very poor. The examiner concluded that the veteran was not able to engage in gainful employment. The examiner's diagnosis was depressive neurosis. In a June 1993 psychiatric evaluation, the veteran reported symptoms of insomnia, nervousness, anger for little or no reason, anorexia, intolerance of noises, crying spells, and hearing voices of his army buddies. The veteran's wife reported that the veteran hardly slept at night, and that the veteran was argumentative and frequently angry for little or no reason. The veteran reported that mental and physical disorders had caused him to stop working. He reported that he presently lived with his wife, and spent most of his time at home. The examining psychiatrist, Robert Toro Soto, M.D., noted that the veteran was under treatment, with medication, for his psychiatric disorder. Dr. Toro Soto observed that the veteran was coherent and logical, with a blunted affect, a depressed mood, and deficient concentration. Dr. Toro Soto's diagnosis was primary, late onset dysthymia. In a November 1993 report, psychiatrist Angel L. Rodriguez, M.D. indicated that he had interviewed the veteran. The veteran reported that he had insomnia, incoherent speech at times, and hallucinations. Dr. Rodriguez reported that there was not clear evidence of PTSD. Dr. Rodriguez's diagnoses were residual schizophrenia, and dysthymia. In January 1994, the veteran underwent a VA evaluation by a board of two psychiatrists, Miriam Marti, M.D., and J. Garcia-Saavedra, M.D. Dr. Marti reported the veteran did not provide details about combat and being wounded, even when asked. The veteran reported a post-service work history that included about fifteen years working as a merchant marine. Dr. Marti noted that the veteran had not reported that merchant marine work in earlier interviews. Dr. Marti noted that the veteran had a very flat affect, with no expression of emotion, and that he was very vague in his answers when interviewed. Dr. Marti and Dr. Garcia-Saavedra reported diagnoses of PTSD, by record; depression, not otherwise specified; and strong schizoid personality features. They described the veteran's level of functioning as fair to poor. In an April 1994 psychiatric evaluation, the veteran reported that he had ceased working in 1991 because of his emotional condition. The examining psychiatrist, Luis A. Escabi, M.D., noted that the veteran's emotional condition was characterized by episodes of depression, crying, bad temper, and despair. The veteran reported that he had suicidal ideas, great difficulty sleeping, and episodes of poor self- control. Dr. Escabi reported that he had been treating the veteran since November 1990. Dr. Escabi reported that since April 1991 the veteran's emotional condition had been so impaired that he was not able to perform any type of work. Dr. Escabi's diagnosis was major depressive disorder, with psychosis. Dr. Escabi assigned a Global Assessment of Functioning (GAF) of 51. In September 1994, the United States Social Security Administration (SSA) found that the veteran had been totally disabled since December 1991, with a primary diagnosis of depressive neurosis. In a November 1994 psychiatric evaluation, Dr. Toro Soto observed that the veteran was coherent and logical, but seemed detached at times. Dr. Toro Soto noted that the veteran had an anxious affect and depressed mood, with adequate memory but deficient concentration. Dr. Toro Soto's diagnoses were PTSD, and dysthymia secondary to physical disorders including diabetes mellitus and Bell's palsy. On VA psychiatric evaluation in August 1995, the veteran expressed that he felt depressed and angry. He indicated that he frequently argued with his wife and stepdaughter. He reported that when he became particularly angry, he left the house for several hours, until he was able to calm down. The veteran reported feeling depressed and empty most of the time, but he did not express any active suicidal or homicidal ideas. He did not report any hallucinations. VA psychiatrist Miriam Marti, M.D., noted that the veteran's affect was very flat and expressionless, and that his mood as sullen and withdrawn. Dr. Marti noted that the veteran responded to questions, but did not elaborate or volunteer further information. Dr. Marti's diagnosis was PTSD, by record, and depression, not otherwise specified. Dr. Marti assigned a GAF of 51. In a March 1996 hearing at the RO, psychiatrist Jose A. Juarvez, M.D., testified regarding the veteran's psychiatric condition. Dr. Juarvez reported that he had interviewed the veteran several times, and that he had reviewed the veteran's claims file. Dr. Juarvez reported that the veteran had a very flat affect. He noted that the veteran had expressed that he wished he had died in Korea. Dr. Juarvez noted that the veteran had expressed that he was particularly troubled by not having saved a soldier who was killed in Korea by a mortar round that exploded near the veteran and that soldier. Dr. Juarvez noted that the veteran had reported frequent nightmares about the death of that soldier, and hallucinations of the soldier during waking hours. Dr. Juarvez noted that, despite taking psychiatric medications, the veteran had frequent nightmares and could not sleep more than two hours at a time. Dr. Juarvez noted that the veteran had a very explosive temper, and frequently became angry at his wife and stepdaughter. The veteran reported that when he became angry he isolated himself and tried to avoid any contact with his family members. Dr. Juarvez noted that psychiatrists who had examined the veteran had diagnosed both PTSD and depression. Dr. Juarvez expressed the opinion that the veteran's depressive symptoms and all of his psychiatric symptoms were manifestations of his PTSD, with origins in his experiences in Korea. When asked whether he agreed with a GAF of 51 that another psychiatrist had assigned, Dr. Juarvez stated that he disagreed with that assessment. Dr. Juarvez noted the veteran's lack of tolerance for his family members, his aggression and hostility toward his stepdaughter, and his withdrawal and isolation, all despite taking psychiatric medication. Dr. Juarvez stated that the veteran was at risk for suicide and homicide, and stated that he would assign a GAF of 10 for the veteran's current condition. He stated that the veteran was unable to work as a result of his psychiatric disorder. The many psychiatric findings and opinions regarding the veteran's mental condition contain some differences in diagnosis. The psychiatrists who have examined the veteran have found symptoms of PTSD, depression (or a similar diagnosis), or both. The assignment of a rating for the veteran's service-connected PTSD is affected by what part of the veteran's psychiatric disability is considered to be attributable to PTSD. The Board notes that one psychiatrist, Dr. Rodriguez, specifically found that there was no evidence that the veteran had PTSD. Dr. Juarvez, in contrast, asserted that all of the veteran's psychiatric symptoms, including his symptoms of depression, are part of his PTSD and related to his experiences during service. Several psychiatrists have noted both PTSD and depression without addressing whether the diagnoses represent one disorder, overlapping disorders, or separate disorders with distinguishable manifestations. Except for Dr. Rodriguez, the psychiatrists who have provided a diagnosis that does not include PTSD have not specifically indicated that the veteran's symptoms are inconsistent with PTSD. The Board recognizes that psychiatric diagnoses of a particular patient frequently encompass considerable variation of opinion. The Board finds that the diagnoses and detailed reports from multiple psychiatrists adequately establish that PTSD forms at least part of the veteran's psychiatric disability. Furthermore, the Board finds that the opinions of the psychiatrists who have examined the veteran do not provide a clear argument or basis for separating manifestations of PTSD from manifestations of depression. Therefore, the Board concludes the most reasonable course is to evaluate the veteran's PTSD based on the evidence regarding his overall psychiatric impairment. The veteran has reported on a number of occasions that he stopped working when his psychiatric symptoms worsened. The examination reports provide history regarding the veteran's problems in interacting with his family members. Dr. Juarvez stated that the veteran was unable to work as a result of his psychiatric disorder. Dr. Escabi concluded that the veteran's psychiatric disorder made him too impaired to perform any type of work; and SSA found that the veteran was disabled primarily due to a psychiatric disorder. Overall, the evidence supports a finding that the veteran is unable to retain employment due to his PTSD. In light of the Court's holding in Johnson, supra, at 99, that satisfaction of any one of the criteria for a 100 percent rating for PTSD warrants a grant of a 100 percent rating, the Board finds that the effect of the veteran's PTSD on his employability calls for a 100 percent rating for his PTSD. In light of the present grant of a 100 percent rating under the rating schedule, the Board finds that it is not necessary to address whether the appropriate authority should consider the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). ORDER Entitlement to a 100 percent schedular rating for PTSD is granted, subject to laws and regulations controlling the disbursement of monetary benefits. JEFF MARTIN Member, Board of Veterans' Appeals