Citation Nr: 0005323 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 96-45 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE The propriety of initial ratings assigned for post-traumatic stress disorder (PTSD) following a grant of service connection. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. L. Rippel, Associate Counsel INTRODUCTION The veteran had active service from November 1965 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office in Hartford, Connecticut (RO), which granted service connection for PTSD and assigned a series of disability ratings for that disability. The Board notes a statement of the case issued in August 1998 incorrectly listed the issue as entitlement to an earlier effective date for the assignment of a 100 percent evaluation for PTSD. However, the veteran's October 1996 substantive appeal communicated disagreement with the evaluation of his PTSD symptoms, and is within the appeal period of the original May 1996 rating decision. The veteran has consistently maintained that he should be awarded a 100 percent schedular evaluation for PTSD from July 1994, the date of his claim. Thus, the veteran has actually disagreed with the initial rating decision. In a recent decision, the Court distinguished between an appeal of a decision denying a claim for an increased rating from an appeal resulting from a veteran's dissatisfaction with an initial rating assigned at the time of a grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). In the latter event, the Court held that "staged" ratings could be assigned, in which separate ratings can be assigned for separate periods of time based on the facts found. In the instant case, the veteran has expressed his dissatisfaction with the effective date assigned for the 100 percent evaluation, arguing that the effective should be July 26, 1994, the date of claim. Accordingly, the issue currently before the Board is entitlement to an initial 100 percent rating for the veteran's service-connected PTSD for the period from July 26, 1994, to August 14, 1996. Further, the veteran has urged that inasmuch as he has had PTSD for many years, the effective date for the grant of service connection should be much earlier than July 1994. In this regard, a 1983 decision of the Board denied service connection for a nervous condition, including PTSD. Though the veteran testified before the undersigned Board member that he was interested in filing a motion for revision of a prior Board decision on the basis of clear and unmistakable error, no such motion has been formalized, and the dismissal of that claim is the subject of a separate decision. The veteran may still pursue a claim for an earlier effective date for the grant of service connection for PTSD, but such a claim is not the subject of the current appeal. This matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. In a May 1996 rating decision, the RO granted service connection for PTSD and assigned a 50 percent evaluation effective July 26, 1994, and a 70 percent evaluation from effective September 14, 1995; the veteran disagreed with the ratings awarded in October 1996, and a 100 percent schedular rating was assigned in a May 1997 rating decision, effective August 11, 1996. 2. Prior to September 14, 1995, PTSD was manifested by not more than considerably impaired ability to establish and maintain effective or favorable relationships with people and, by reason of psychoneurotic symptoms, reduced reliability, flexibility, and efficiency resulting in considerable industrial impairment. 3. From September 14, 1995, PTSD has been manifested by symptoms such as recurrent nightmares, intrusive thoughts, depression, and persistent danger of hurting self and others, rendering the veteran demonstrably unable to obtain or retain employment. CONCLUSIONS OF LAW 1. The schedular criteria for a 50 percent evaluation for PTSD have been met effective from July 26, 1994; the schedular criteria for an evaluation in excess of 50 percent have not been met prior to September 14, 1995. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.125-4.132, Diagnostic Code 9411 (1996). 2. The schedular criteria for a 100 percent evaluation for PTSD have been met effective from September 14, 1995. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.125- 4.132, Diagnostic Code 9411 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A May 1996 rating decision granted service connection for PTSD. The RO initially assigned a 50 percent evaluation effective July 26, 1994, the date the claim for that benefit was received, and a 70 percent rating effective September 14, 1995, the date of a VA hospitalization for PTSD. The veteran filed an application for a total rating based on unemployability due to service-connected disabilities, which was denied, and ultimately filed a notice of disagreement with the evaluation of his PTSD in October 1996. This appeal ensued. During the pendency of this appeal, a May 1997 rating decision granted an increased evaluation to 100 percent for the veteran's service-connected PTSD. Rather than assigning an effective date for the 100 percent rating back to the date on which service connection was established (July 26, 1994), the RO assigned an effective date of August 14, 1996. In so doing, the RO determined that August 14, 1996, was the date in which the veteran's PTSD first became 100 percent disabling under the rating schedule. The veteran disagreed with that decision, stating that the correct effective date for the 100 percent evaluation should be July 26, 1994. As noted in the Introduction, the Court has held that "staged" ratings could be assigned, in which separate ratings can be assigned for separate periods of time based on the facts found. Fenderson, supra. Thus, the issue currently before the Board is entitlement to an initial 100 percent rating for the veteran's service-connected PTSD for the period from July 26, 1994, to August 14, 1996. The Board finds that this claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a), which gives rise to the VA's duty to assist. Under these circumstances, the VA must attempt to obtain all such medical evidence as is necessary to evaluate the severity of the veteran's disability from the effective date of service connection through August 14, 1996. Fenderson, 12 Vet. App. at 125-127; see also 38 C.F.R. § 4.2 (ratings to be assigned "in the light of the whole recorded history.") The Board finds that all relevant evidence has been obtained and that no further duty is required under the provisions of 38 U.S.C.A. § 5107. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Essentially, when the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The veteran's PTSD has been rated under Diagnostic Code 9411. During the course of this appeal, VA issued new regulations for the evaluation of psychiatric disabilities, effective as of November 7, 1996. Where the law or regulations governing a claim change while the claim is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary. See Karnas v Derwinski, 1 Vet. App. 308, 312-313 (1991). The effective date rule established by 38 U.S.C.A. § 5110(g), however, prohibits the application of any liberalizing rule to a claim prior to the effective date of such law or regulation. Id.; Rhodan v. West, 12 Vet. App. 55, 57 (1998). Accordingly, the Board is generally required to review both the pre- and post-November 7, 1996, rating criteria to determine the proper evaluation for the veteran's disability due to a psychiatric disorder. However, since the veteran has already been assigned a total schedular evaluation effective to August 1996, the Board is concerned with the period of time from the date of claim, July 1994, through August 1996. Thus, a discussion concerning the application of the new criteria would be moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Prior to November 7, 1996, a condition such as PTSD could be evaluated using criteria from the general rating formula for psychoneurotic disorders. See 38 C.F.R. § 4.132, Diagnostic Code 9400 (1996). Under this formula, a 10 percent rating required emotional tension or other evidence of anxiety productive of mild social and industrial impairment. A 30 percent rating required definite or "moderately large" impairment in the ability to establish or maintain effective and wholesome relationships with people, with psychoneurotic symptoms resulting in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite impairment. The VA General Counsel, in response to an invitation by the United States Court of Appeals for Veterans Claims (Court) to construe the term "definite" in a manner that would quantify the degree of impairment, concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." O.G.C. Prec. 9-93, 59 Fed. Reg. 4752 (1994). See also, Hood v. Brown, 4 Vet. App. 301 (1993). Under the former criteria, a 50 percent evaluation would be appropriate where the ability to establish and maintain effective or favorable relationships with people was considerably impaired and, by reason of psychoneurotic symptoms, the reliability, flexibility, and efficiency were so reduced as to result in considerable industrial impairment. See 38 C.F.R. § 4.132, Diagnostic Code 9400 (1996). A 70 percent evaluation would be warranted for psychoneurotic symptoms of such severity and persistence that there is severe impairment in the ability to obtain and retain employment and the ability to establish or maintain effective or favorable relationships with people is severely impaired. A 100 percent evaluation requires virtual isolation in the community, totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, or demonstrable inability to obtain or retain employment. Id. The 100 percent evaluation may be assigned as long as the veteran meets one of three listed criteria: total isolation, gross repudiation of reality, or unemployability. See 38 C.F.R. § 4.132, Diagnostic Code 9400-9435; Johnson v. Brown, 7 Vet. App. 95, 96 (1994); see also 38 C.F.R. § 4.21. The Board finds that the veteran's PTSD symptoms have been significant throughout the appeal period. However, as the following discussion of the record will explain, sustained findings, signs and symptoms which put the issue of unemployability in relative equipoise have been demonstrated from September 14, 1995, when the veteran underwent VA hospitalization, to the present. Prior to September 14, 1995, the manifestations of the veteran's PTSD have been considerable as defined by the criteria for rating psychoneurotic disorders; nevertheless, these symptoms are not consistent with severe PTSD as contemplated under the criteria for a 70 percent evaluation. Thus, the veteran's PTSD is most consistent with a 50 percent rating under the schedular criteria for that time period. Service personnel records, lay statements and testimony show that this Vietnam veteran served in the Air Force with a military specialty of ground radio operator. He spent approximately one year in the Republic of Vietnam during the Vietnam War. He was ordered to Khe Sanh, where he spent approximately 77 days in intense combat while that base, a unified forces site, was under siege. There were many casualties. The veteran was one of only a few Air Force personnel, and he was continually forced into a variety of tasks in an effort to defend the base and keep the aircraft moving. The veteran received the Bronze star with V for valor for his service, along with a presidential unit citation. The veteran has asserted that the experience at Khe Sanh permanently changed his life. He has been plagued by nightmares, grief, guilt, rage, anger, and an inability to express any positive emotions since service. This has affected his ability to relate to his wife and two children as well as his ability to interact with coworkers and supervisors. The veteran's treating psychiatrist for many years has been Vladimir Coric, M.D. In a June 1987 report he related that he had begun treating the veteran in February 1980. An evaluation of the veteran by Dr. Coric dated in October 1994 indicates that the veteran presented as disheveled. Dr. Coric noted that the veteran always wore sunglasses, had his hair in a pony tail and was inappropriately dressed. He was guarded, suspicious, angry, belligerent, fidgety, and easily agitated. His affect was labile, his mood depressed, and his voice was loud and threatening when angry. He spoke about suicide, discussing grenades and machine guns, and he reported dreaming of coffins and funerals. He was easily startled, nervous, fearful and isolated. He reported that helicopters and shotguns made him nervous. He reported smelling dead bodies. Dr. Coric opined that the veteran's job functioning was severely impaired due to anger and inability to cope with stress. It was noted that his family life was also severely impaired, and that the veteran had turned to drinking and drug use to deal with his emotional pain and his memories. He had no friends, attended no church or other organization. It was noted that his psychiatric future had been complicated with a back injury in the past year, that he was on medical leave from his job and that he was presently incapacitated to do his work. It was reported that anti-depressants and minor tranquilizers were only minimally effective. The diagnosis was PTSD, chronic, and alcohol abuse. A letter written in December 1994 by Suzanne Pazameta, M.S., a VA readjustment counseling therapist, indicated that she had seen the veteran for three months, during which time he appeared closed and angry, bordering on hostile. He reported major symptoms of PTSD including depression, rage, isolation, sleeplessness, and increased anxiety. It was reported that he was begrudgingly cooperative, and that progress on the case was minimal. A social worker's report from the Norwich Veterans Center dated in August 1995 includes a detailed history of the veteran's Vietnam experiences, as does a lay statement from a chaplain who served with the veteran in Khe Sanh. The Board finds the above records to be compelling evidence of considerable impairment caused by PTSD symptoms. However, the level of functioning suggested by the reports do not show psychoneurotic symptoms of such severity and persistence to produce severe impairment in the ability to obtain and retain employment and the ability to establish or maintain effective or favorable relationships with people. It is noted that the report from Dr. Coric suggests that the veteran's back problem played a large part in the veteran's reportedly prolonged medical leave from his job. Further, the level of treatment reflects less than severe PTSD signes and symptoms. Beginning in September 1995, a series of VA examinations and hospitalization reports show that the veteran manifested severe symptoms of PTSD which resulted in total occupational impairment. Specifically, a hospital report shows that the veteran was hospitalized from September 14, 1995, through September 21, 1995, for chronic, severe PTSD which compromised his ability to work. The veteran was admitted to the PTSD unit when he presented for evaluation of PTSD and back problems. He reported on admission that he had one previous psychiatric hospitalization in the 1970's but that this was his only recent hospitalization. He reported that he was employed, had worked at the same place for many years, but had changed jobs with his employer because of back pain. He noted sporadic visits to a local vet center as well as ongoing treatment with Dr. Coric and the fact that he was currently receiving psychiatric medications from Dr. Coric. The veteran reported numerous medical concerns but focused on a low back injury reportedly sustained in November 1993. He also reported a history of substance abuse but added that he had cut back drastically since he injured his back. He presented as dysphoric, negative and anxious. Throughout the course of his hospital stay, he was observed to have significant impairment of interpersonal skills. He was very sensitive to feelings of rejection and criticism and prone to flare ups. He was noted to be on leave from his job and concerned with getting a disability retirement. The veteran stated that he had homicidal urges, especially towards authority figures. The diagnosis was rule out PTSD, severe, history of alcohol dependence and abuse. The veteran's Global Assessment of Functioning (GAF) score was 40 at the time of the examination, estimated at a high of 45 for the previous year. A report of VA hospitalization shows additional inpatient treatment for PTSD from October 24, 1995, through November 3, 1995. At that time, the pertinent diagnosis was PTSD, severe and chronic, and alcohol dependence and abuse in remission. The GAF score was 40 at the examination and 45 for the past year. The veteran was assessed as essentially the same as he had been in the September 1995 hospitalization. The veteran was noted to get enraged to the point of having homicidal ideation toward authority figures, especially those at work and caregivers. It was noted that he was employed, but had been unable to perform his job for many weeks due to physical and emotional problems. He was working out a disability retirement agreement with his employer. A report of VA examination dated in February 1996 reveals a diagnosis of PTSD, major depression and alcohol dependence, with a GAF score of 50. This report notes essentially the same degree and severity of symptoms as the hospitalization reports. A report of VA hospitalization dated in August 1996 shows that the veteran was essentially continuing in his previously noted symptomatology. He was very nervous and had requested admission secondary to feeling out of control at home. He was noted to be unemployed due to PTSD. In describing his past psychiatric history it was noted that he had been hospitalized in the fall and winter of 1995 because of exacerbation of his PTSD symptoms. He described hypervigilence, hyperarousal and insomnia. Substance abuse was noted to be in remission. The pertinent diagnosis was wartime-related, severe, chronic PTSD. The GAF score was 40 at present and 35 over the past year. At his travel Board hearing, the veteran stated his belief that he had been unable to work for many years due to PTSD. It was also indicated during his hearing that he had been working as a laborer until he had a back injury. He also expressed his belief that he had been treated unfairly by the government and the VA particularly over the years, and that his complaints and his attempts to get help had been treated in a dismissive manner in part due to the fact that he was a member of the Air Force. He stated that initially people refused to offer him rehabilitation services because they believed that he could not have experienced significant trauma as an Airman. To that extent, the undersigned would note that it is uncontroverted that this veteran underwent an extremely intense combat situation and that his service is certainly to be commended. As noted, the Board finds that the evidence supports a finding that the veteran was no more than considerably impaired from the date of claim until the hospitalization in September 1995. Specifically, the record does not show considerable impairment in the ability to establish and maintain effective or favorable relationships with people or, by reason of psychoneurotic symptoms, considerable industrial impairment caused by reduced reliability, flexibility, and efficiency. The Board points to the fact that, while the veteran was treating with Dr. Coric and visiting a counselor sporadically, there is no GAF score prior to September 1995 in the record or other statistic or similar evidence which would allow for a quantification of the severity of his PTSD. As such, the Board has assessed the weight of the evidence from Dr. Coric and the counselors and determined that the elements of a rating in excess of 50 percent are not warranted. The Board finds that the lack of ongoing treatment, coupled with the lack of specificity in the record regarding the ongoing nature of the symptoms, and the fact that the veteran was employed is compelling evidence to conclude that the manifestations of the veteran's disability were no more than considerable; accordingly, an evaluation in excess of 50 percent is not warranted prior to September 14, 1995. As of the date of the September 1995 hospitalization, the veteran's PTSD has rendered him totally impaired in both occupational and social functioning due to such symptoms as hypervigilence, angry outbursts, nightmares and intrusive recollections about combat, paranoia, a decrease in concentration, homicidal rage, fear, and an inability to get along with others resulting in isolation. Such a determination is consistent with findings in the aforementioned VA assessments and hospitalization reports. As noted, with the exception of the even lower score of 35, all reported GAF scores fall between 40 and 50. Under the Diagnostic Criteria from DSM-IV, a score of 40 is appropriate where behavior is manifested by some impairment in reality testing or communication (e.g., speech is at times illogical, obscure or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A score of between 41 and 50 is appropriate where behavior is manifested by serious symptoms such as suicidal ideation, severe obsessional rituals or frequent shoplifting, or any serious impairment in social, occupational or school functioning, such as having no friends or being unable to keep a job. See Quick Reference to the Diagnostic Criteria from DSM-IV at 46-47 (1996) (emphasis added). The veteran's testimony before the undersigned Board member, supported by medical records, provides evidence of significant signs and symptoms of PTSD as contemplated for a 100 percent schedular rating as early as September 14, 1995. Specifically, the veteran's repeated references to and preoccupation with homicidal rage toward authority and employers are evidence that he presents at least a potential danger to others. His severe sleep problem, inability to get along with others, inability to concentrate due to anxiety over recurrent memories of his wartime trauma and need for isolation result in decreased ability to perform even the most basic activities of daily functioning on a sustained basis. The veteran's candid description of his angry outbursts and ever-growing need for isolation establish a long-term problem with grossly inappropriate behavior related to PTSD. These manifestations of PTSD have been demonstrated during his inpatient hospitalization dating from September 14, 1995, and are consistent with his GAF scores, the findings on VA examinations and hospitalization reports, and his description of his daily coping problems. The Board finds the evidence of total occupational and social impairment to be substantial and at least in relative equipoise from the date of the September 1995 hospitalization. In conclusion, after a review of all the evidence of record, it is the Board's judgment that the veteran's PTSD warrants a 100 percent schedular evaluation under Diagnostic Code 9411 from September 14, 1995. The Board has also considered whether an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) is warranted for the period prior to September 14, 1995. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In the instant case, however, there has been no showing that the veteran's service-connected PTSD had caused marked interference with employment, necessitated frequent periods of hospitalization, or otherwise rendered impracticable the application of the regular schedular standards prior to September 14, 1995. Although he was working out the details of a disability retirement, the record does show considerable occupational impairment but does not show that he was unable to work due to PTSD during that time period. Much of the recorded complaints relevant to that time period, by the veteran's own admission, relate to the veteran's back pain. In fact, the veteran's retirement date was August 18, 1996. Further, he did not become active in his treatment at VA essentially until that time. While it is not the intention of the Board to minimize the significance of PTSD in the veteran's daily life during that time period, the Board is compelled to conclude that the impairment at that time, while considerable, did not present an unusual disability picture as contemplated by 38 C.F.R. § 3.321(b)(1). Thus, the Board determines that the criteria for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 237, 239 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In conclusion, the Board finds that the preponderance of the evidence is against an evaluation in excess of 50 percent for PTSD prior to September 14, 1995, but that a 100 percent rating is warranted for this condition since September 14, 1995. ORDER An initial evaluation in excess of 50 percent for the veteran's PTSD for the period prior to September 14, 1995, is denied. Subject to the laws and regulations governing the award of monetary benefits, a 100 percent evaluation for PTSD for the period since September 14, 1995, is granted. STEVEN L. COHN Member, Board of Veterans' Appeals