Citation Nr: 0002295 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 96-44 73 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE The propriety of the initial 10 percent evaluation assigned for service-connected post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: John Stevens Berry, Attorney WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran had active duty from September 1942 to September 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1996 rating decision of the RO, which, inter alia, established service connection for PTSD, and assigned a 10 percent evaluation for PTSD, effective from January 26, 1996, the date of receipt of the veteran's claim. The veteran timely appealed that determined to the Board. In November 1997, the Board rendered a decision on all other issues on appeal. However, at the time, the Board remanded the PTSD claim for additional development, which has since been completed. Because the denial of the claim has been continued, the case is now before the Board for resolution. As the veteran has expressed disagreement with the initial rating assigned, the Board has recharacterized that issue as involving the propriety of the initial evaluation assigned, in light of the Court's recent decision in Fenderson v. West, 12 Vet. App. 119, 126 (1999). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the issue on appeal has been obtained. 2. Since January 1996, the date of the grant of service connection for PTSD, the veteran's PTSD has been manifested by mild to moderate anxiety, complaints of occasional combat- related dreams, hyper-alertness and hyper-vigilance, avoidance, some irritability and stress intolerance, occasional mood shifts, mild memory loss, and sleep and concentration difficulty. 3. The veteran PTSD symptoms appear to result in social impairment that ranges from mild to distinct, unambiguous, or moderately large in degree, or, since November 7, 1996, impairment productive of no more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW With resolution of all reasonable doubt in the veteran's favor, the criteria for a 30 percent evaluation for PTSD have been met since January 26, 1996, the effective date of the grant of service connection. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (1999); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION In July 1996, the RO established service connection for PTSD based on the evidence of record. That evidence included, in pertinent part, a May 1996 VA PTSD examination report. At that time, the veteran denied any problems with restricted affect or a foreshortened future. However, he complained of difficulty falling asleep, irritability, exaggerated startle response, and persistent hyper-vigilance. The veteran reported holding several jobs since his discharge from service more than 50 years ago. However, his most recent occupation was that of mail-carrier, a position in which the veteran indicated he was able to function "pretty well" for a number of years. The veteran gave a history of some isolation and irritability in interpersonal relationships; symptoms which have gradually diminished over the years. The veteran expressed his belief that his divorce from his first wife many years ago was a result of his irritability and rapid changes in mood. On mental status examination, the veteran appeared for his evaluation in a timely fashion, he was friendly and cooperative throughout the interview, and oriented to time, place and person. The veteran was able to pursue a goal idea; he showed no fragmentation or tangential train in thought; he had no underlying thought disorder; and his affect was stable. He showed mild to moderate anxiety. Recent and remote memory were intact, as was his ability to perform abstractions, and there were no reported or observed delusions or hallucinations. The veteran denied any suicidal ideation. His ability to perform mathematical computations was intact. Obsessive-compulsive symptomatology was absent, and there were no strong narcissistic tends or evidence of any underlying thinking disorder. Judgment and insight appeared intact. In summary, the VA examiner found the veteran's psychological profile to include recurrent occasional dreams (apparently of combat situations), hyper- alertness, hyper-vigilance, a tendency to avoid anything that might recall combat trauma, difficulty sleeping, and difficulty concentrating, as well as a background of mild to moderate anxiety. It was also observed that these PTSD symptoms were more active in the past, and are currently mild to moderate in severity. No major depressive pathology was noted. The diagnosis was PTSD, mild. On VA examination in October 1996, the veteran reported avoidance of activities and situation that might arouse recollections of his combat experiences. He reported disturbances in sleep, which consisted of intermittent awakening with feelings of fear and associated perspiration; however, it was reported that this has grown less intense with the passage of time. The veteran also reported some restriction of affect, feeling of a foreshortened future, irritability, problems with concentration, mild exaggerated startle response and hyper-vigilance. The veteran reported that he retired at the age of 63, because of his loss of interest, but primarily because of other physical problems not associated with PTSD. On mental status examination, there was mild to moderate amount of floating anxiety. The veteran's PTSD symptomatology was thought to include sleep pattern problems, difficulty concentrating, some restriction of affect, a degree of hyper-alertness, and hyper-vigilance, irritability, and stress intolerance. Further evaluation revealed moderate penetration through to his employability and interpersonal relationships. The examiner indicated that persistent tinnitus and hearing loss, as well as his shoulder and elbow pain enhanced the veteran's stress. The veteran gave no history of any treatment for PTSD. The diagnosis was PTSD, moderate severity. On VA PTSD examination in June 1998, the veteran reported frequent nightmares and flashbacks, which have since diminished to one per month, each. The veteran reported avoidance of thought, feelings, activities, and situations that would arouse recollections of wartime trauma. Upon discharge the veteran had markedly diminished interest in significant activities, and reduced range or affect, which has since tended to diminish over time. Presently, the veteran complained of some mood shifts, mild irritability, sleep pattern problems, startle response, hyper-vigilance, and decreased concentration. On mental status examination, the veteran was moderately anxious with no marked depression and a stable mood. In spite of recent medication, his recent memory had undergone some erosion. It was felt that the veteran's PTSD had been moderate for the first five to ten years after discharge, with current physical problems. It was recommended that the veteran receive treatment for his associated anxiety. The diagnosis was PTSD, moderate in severity. A Global Assessment of Functioning (GAF) Score of 65-70 was assigned. II. Analysis As a preliminary matter, the Board finds that the veteran's claim for increase for PTSD is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the veteran has presented a claim which is not implausible when his contentions and the evidence of record are viewed in the light most favorable to the claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. Accordingly, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). Under the laws administered by VA, disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 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. The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1 (1999); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Before proceeding with its analysis of the veteran's claim, the Board finds that some discussion of the Fenderson case is warranted. In that case, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case in which the veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. In the former case, the Court held, the rule of Francisco v. Brown (7 Vet. App. 55, 58 (1994)), that the current level of disability is of primary importance when assessing an increased rating claim, applies. In the latter case, however, where, as here, the veteran has expressed dissatisfaction with the assignment of an initial rating, the Francisco rule does not apply; rather, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim - a practice known as "staged rating." In the instant case on appeal, the RO has issued a statement of the case (SOC) and supplemental statements of the case (SSOC's) that do not explicitly reflect consideration of the propriety of the initial rating, or include discussion of whether "staged rating" would be appropriate in the veteran's case. However, the Board does not consider it necessary to remand this claim to the RO for issuance of a statement of the case on this issue. This is because the RO has issued determinations not only in July 1996, but also in December 1996 and September 1998, each of which reflects consideration of additional evidence, as it has been received, under the applicable rating criteria. Thus, the RO effectively considered the appropriateness of its initial evaluation under the applicable rating criteria in conjunction with the submission of additional evidence at various times while the appeal was pending. The Board considers this to be tantamount to consideration of whether " staged rating" is appropriate; thus, a remand of this case would not produce a markedly different analysis on the RO's part, or give rise to markedly different arguments on the veteran's part, particularly given the Board's favorable disposition of the issue on appeal. Prior to November 7, 1996, PTSD was evaluated using criteria from the general rating formula for psychoneurotic disorders. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). Under this formula, a 10 percent evaluation was assigned for PTSD that results in mild social and industrial impairment; the psychoneurotic symptoms resulted in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce mild social impairment. A 30 percent evaluation was assigned upon a showing of a definite impairment in the ability to establish or maintain effective and wholesome relationships with people; the psychoneurotic symptoms resulted in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce definite social impairment. The term "definite" has been defined as "distinct, unambiguous, and moderately large in degree," and as representing 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). A 50 percent evaluation was assigned where an ability to establish or maintain effective or favorable relationships with people was shown to be considerably impaired, by reason of psychoneurotic symptoms the reliability, flexibility, and efficiency levels so reduced as to result in considerable industrial impairment. A 70 percent evaluation was warranted where the veteran's ability to establish or maintain effective or favorable relationships with people was shown to be severely impaired, or by reason of psychoneurotic symptoms, the reliability, flexibility and efficiency levels were so reduced as to result in severe industrial impairment. To warrant a 100 percent evaluation, the attitudes of all contacts except the most intimate must have been so adversely affected as to result in virtual isolation in the community; or there must have been totally incapacitating 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, as a result of the psychiatric disability, the individual must have been unable to obtain or retain employment. These criteria represent 3 independent bases for granting a 100 percent evaluation. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Under the revised criteria, set forth at 38 C.F.R. § 4.130, Diagnostic Code 9411 (1998), a 10 percent evaluation is assigned for PTSD demonstrated to include mild or transient symptoms with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent evaluation is assigned for occupational and social impairment with 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, mild memory loss (such as forgetting names, directions, or recent events). Where there is demonstration of 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 50 percent rating is appropriate. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 work-like setting); and inability to establish and maintain effective relationships. Finally, a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. The Board notes, initially, that comments by recent examiners suggest that the veteran's PTSD may have been more severe prior to the grant of service connection for that condition. Indeed, the October 1996 VA examiner indicated that the veteran's symptoms have diminished over time. However, inasmuch as service connection for PTSD has been granted effective January 26, 1996, and the veteran has disagreed with the initial 10 percent evaluation then assigned, that is the extent of the Board's inquiry. In other words, the Board may only consider the level of impairment resulting from PTSD at, and since, the time of the grant of service connection. Considering the medical evidence of set forth above, the Board notes that since January 26, 1996 (the date of the grant of service connection for PTSD), the veteran's PTSD has been manifested by mild to moderate anxiety, complaints of occasional combat-related dreams, hyper-alertness and hyper- vigilance, avoidance, some irritability and stress intolerance, occasional mood shifts, mild memory loss, and sleep and concentration difficulty. Applying these facts to the relevant rating criteria, the Board finds that these symptoms appear to result in social and industrial impairment that ranges from mild to distinct, unambiguous, or moderately large in degree, under the former criteria. While an examiner's assessment of disability is not, in and of itself, dispositive of the question of the appropriate evaluation to be assigned a disability (see 38 C.F.R. § 4.129 (1996)), it is interesting to note that a VA examiner in May 1996 assessed the veteran's psychiatric impairment as mild, noting that he did not then appear to have any major depressive pathology at that time, although the examiner noted that the veteran's anxiety was then mild to moderate. Five months later, in October 1996, the VA examiner assessed moderate psychiatric impairment, and an assessment of moderate disability also was made, most recently, in connection with the June 1998 examination. The "mild to moderate" assessment is consistent with the June 1998 examiner's assignment of a GAF of 65-70 [which according to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, is indicative of level of impairment falling between mild symptoms (e.g., depressed mood and mild insomnia, although generally functioning pretty well) and moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks). Applying the criteria in effect as of November 7, 1996 (the effective date of the revised rating criteria), the symptoms described above appear to reflect no more than an than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, for which a 30 percent evaluation is assignable under the revised criteria. In this regard, the Board notes that while there is no specific medical evidence that the veteran experiences suspiciousness or panic attacks, several of his other symptoms, such as depressed mood, anxiety, chronic sleep impairment, and mild memory loss, are specifically mentioned in the 30 percent rating criteria. Thus, with resolution of all reasonable doubt in the veteran's favor, the Board finds that, since the date of the grant of service connection, the criteria for a 30 percent evaluation under the former rating criteria, and, since November 7, 1996, the criteria for a 30 percent evaluation under the revised criteria, have been met; hence, that is the evaluation that must be assigned. However, assignment of a higher evaluation under either the former or the revised criteria is not warranted on the basis of the pertinent evidence of record. The record simply does not demonstrate at least considerable impairment, or at least occupational and social impairment with reduced reliability and productivity due to such symptoms circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; or impaired judgment and/or abstract thinking. The record also shows the veteran has received no treatment for the symptoms of his PTSD (although this was recommended on most recent VA examination). Hence, the criteria for assignment of at least the next higher 50 percent evaluation, under either the former or the revised applicable criteria, have not been met. The above decision is based upon consideration of applicable provisions of the rating schedule. Additionally, however, there is no showing that the veteran's disability currently under consideration reflects so exceptional or so unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. In this regard, the Board notes that the disability is not objectively shown to markedly interfere with employment (i.e., beyond that contemplated in the assigned ratings). In this regard, the Board notes that the veteran is shown to have maintained his employment during his post-service years. While he has asserted that his assertions that his PTSD has significantly restricted him in choosing "safer" less riskier employment (apparently, to include impairment in his ability to excess in more advanced positions other than U.S. mail-carrier), there is nothing to support this contention, or evidence indicating that his employment is marginal (see 38 C.F.R. § 4.16). Moreover, the condition is not shown to warrant frequent periods of hospitalization or to otherwise render impractical the application of the regular schedular standards. In the absence of evidence of such factors as those outlined above, the Board is not required to remand the claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Subject to the laws and regulations governing the payment of monetary benefits, a 30 percent evaluation for PTSD is granted. REMAND The instant appeal initially included a claim for service connection for disability claimed as ear infections. In November 1997, the Board established service connection for bilateral otitis media, and the RO implemented this decision in April 1998. In May 1998, the veteran's representative expressed disagreement with the propriety of the initial grant of a noncompensable evaluation for service-connected bilateral otitis medica. To date, there is no evidence that the appellant has been furnished a Statement of Case (SOC) on the issues of the propriety of the initial and current noncompensable evaluation assigned for service-connected bilateral otitis media. As the filing of a notice of disagreement (NOD) places a claim in appellate status, the United States Court of Appeals for Veterans Claims (the Court) has held that the RO's failure to issue a SOC is a procedural defect requiring a remand to the RO. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v Gober, 10 Vet. App. 433, 436 (1997); Godfrey v. Brown, 5 Vet. App. 127, 132 (1993). See also Archibold v. Brown, 9 Vet. App. 124, 130 (1996). Accordingly, this matter is hereby REMANDED to the RO for the following action. 1. The RO should furnish to the veteran and his attorney a Statement of the Case (SOC) on the issue of the propriety of the initial noncompensable evaluation assigned for service-connected bilateral otitis media. The SOC should include a discussion of all relevant evidence considered, and citation to all pertinent law and regulations. Thereafter, the appropriate period for response should be provided. 2. The veteran and his representative are hereby reminded that appellate review of this issue may only be obtained if a timely substantive appeal, perfecting an appeal of this matter to the Board, is filed. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. JACQUELINE E. MONROE Member, Board of Veterans' Appeals