Citation Nr: 0002636 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 97-15 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Determination of initial disability evaluation for service- connected post-traumatic stress disorder (PTSD) with dysthymia, evaluated as 50 percent disabling from June 25, 1998, and 30 percent disabling previously. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. N. Booher, Associate Counsel INTRODUCTION The veteran had active service from January 1968 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In September 1998, the Board remanded the veteran's appeal to the RO for additional development. Specifically, the RO was to request and obtain all treatment records from both VA and private healthcare providers regarding treatment that the veteran had received for PTSD and related disorders. Additionally, the RO was to request the veteran to provide employment records or other evidence of the impact of his psychiatric disability on his ability to maintain employment. Finally, the veteran was to be afforded a VA psychiatric examination to determine the extent of his PTSD with dysthymia and the extent and etiology of any major depressive disorder. The RO requested medical records from St. Anthony Hospital, Hillcrest Health Center and CPC Southwind. The RO did not receive a reply from St. Anthony Hospital or Hillcrest Health Center. The veteran advised the RO that CPC Southwind had closed and that it would not possible to obtain medical records from this provider. Finally, the veteran did not submit any additional evidence to the RO regarding the impact of his psychiatric disability on his ability to maintain employment. The case was returned to the Board in September 1999. FINDINGS OF FACT 1. All available evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Prior to August 2, 1997, the veteran's PTSD with dysthymia was manifested by depression and anxiety productive of no more than definite social and industrial impairment . 3. From August 2, 1997, through February 6, 1999, the veteran's PTSD with dysthymia was manifested by symptoms including depression, nightmares, sleep disturbance, intrusive thoughts, impaired concentration, anxiety, and flattened affect; it was productive of considerable social and industrial impairment. 4. From February 7, 1999, the service-connected psychiatric disability has been productive of a number of symptoms, including nightmares, frequent intrusive thoughts, hypervigilance, anxiety, depression, flattened and blunted affect and neglect of personal appearance; it has been productive of severe social and industrial impairment. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for PTSD with dysthymia prior to August 2, 1997, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125-4.132, Diagnostic Code 9411 (1999). 2. The criteria for an evaluation of 50 percent for PTSD with dysthymia for the period from August 2, 1997, through September 6, 1999, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125-4.132, Diagnostic Code 9411 (1999). 3. The criteria for an evaluation of 70 percent for PTSD with dysthymia for the period beginning September 7, 1999, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125-4.132, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The present appeal arises from a rating decision issued in April 1996. In April 1996, the RO granted service connection for PTSD and assigned an initial disability evaluation of 10 percent effective from March 20, 1996, the original date of claim. The veteran perfected an appeal from this rating decision. During the pendency of the appeal, by rating decision dated in November 1997, the RO increased the veteran's evaluation to 30 percent with an effective date of March 20, 1996. In May 1999, the RO assigned the veteran a 50 percent disability evaluation effective June 25, 1998. As the veteran has not expressed any desire to limit his appeal to a specific disability rating, the entire period remains at issue. Accordingly, the Board will consider the entire period of the veteran's disability in order to provide for the possibility of staged ratings. Staged ratings are ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has found the veteran's claim to be well grounded under 38 U.S.C.A. § 5107(a) (West 1991). The Board is satisfied that VA has fulfilled its duty to assist the veteran by obtaining and fully developing all relevant evidence necessary for the equitable disposition of this claim. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (1999). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In the present case, the RO evaluated the veteran's PTSD under Diagnostic Code 9411. During the pendency of the veteran's appeal, the criteria for rating PTSD were revised, effective November 7, 1996. When a law or regulation changes during the pendency of an appeal, the Board must evaluate the veteran's disability under the version most favorable to the veteran, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, as the revised regulations in this case do not allow for their retroactive application prior to November 7, 1996, the Board cannot apply the new provisions prior to that date. Rhodan v. West, 12 Vet. App. 55 (1998). Under the criteria in effect prior to November 7, 1996, a 10 percent evaluation was warranted in a case where the symptoms were less than the criteria for the 30 percent, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment. A 30 percent evaluation was warranted where there was a 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. The Board recognizes that the term "definite" as it relates to the level of impairment under former DC 9400, has been defined as meaning distinct, unambiguous, and moderately large in degree, more than moderate but less than rather large. See VAOPGCPREC 9-93 (November 1993). A 50 percent evaluation was assignable where the ability to establish or maintain effective or favorable relationships with people is considerably impaired. By reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. A 70 percent evaluation was warranted where the 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. Finally, a 100 percent evaluation required that the attitudes of all contacts except the most intimate be 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 aggressive energy resulting in profound retreat from mature behavior; or a demonstrable inability to obtain or retain employment. In Johnson v. Brown, 7 Vet. App. 95 (1994), the United States Court of Appeals for Veterans Claims held that each of the criteria for a 100 percent rating is an independent basis for granting a 100 percent rating. Under the revised criteria, effective from November 7, 1996 to the present, a 10 percent evaluation under DC 9400 is warranted where there is evidence of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent evaluation under DC 9411 is warranted with the presence of 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, recent events). A 50 percent evaluation is applicable where there is evidence 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 70 percent evaluation is assignable with evidence of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The evidence of record shows that the veteran's PTSD symptomatology did not manifest until after he was discharged from service. Treatment records from a VA Mental Health Clinic show that the veteran began experiencing symptoms of an adjustment disorder, symptoms of depression, and had suicide ideation in July 1984. In January 1985, the veteran had sleep disturbance, increased drinking, suicide ideation and hallucinations. In October 1985, the veteran was diagnosed with an adjustment disorder with depressive features and a passive aggressive personality disorder. In December 1986, the veteran reported having problems with intimate relationships after divorcing his wife of 13 years. He indicated that he did not trust other people and that he was experiencing insomnia. He was diagnosed with depression. In May 1988, the veteran was seen for depression and memory problems. The veteran reported daily marijuana use and suicidal thoughts. In June 1988, the veteran indicated that he had been nervous since Vietnam, but he denied experiencing flashbacks. He also reported having difficulty making friends. He was diagnosed with depression, moderate anxiousness with suicidal thoughts and disturbed sleep pattern. In April 1996, the veteran was afforded a VA examination. The veteran reported that since his separation from service he had been married 5 times. He also reported having difficulties in the past with being fired from employment due to confrontations with supervisors. At the time of the examination, the veteran had been employed with Tinker Air Force Base for 14 years and he was having difficulty with his supervisor. He indicated that he worked better on his own. The veteran reported a long history of depression and of taking medication to control depression. The veteran also indicated that he typically stopped taking medication, which resulted in exacerbated symptoms including intrusive thoughts and nightmares. He reported in particular being bothered by thoughts and nightmares regarding a time when he was on patrol and engaged in a confrontation with some Viet Cong while in Vietnam. The examiner noted that the veteran was oriented, had good judgment, was not appreciably anxious or despondent and was not experiencing hallucinations or delusions. The veteran was diagnosed with mild PTSD, recurrent major depressive episode in partial remission and dysthymic disorder. He was assigned a GAF of 60 primarily due to his depressive problems. In January 1997, the veteran was experiencing increased depression and nightmares. He was also distressed with his work situation, as his employer was trying to determine his eligibility for medical retirement for a knee disability. In April 1997, the veteran was diagnosed with dysthymia. He continued to have sleep disturbance and difficulty with his supervisor at work. In June 1997, the veteran reported that everything caused him stress. He expressed concern that he was going to lose his sixth wife and indicated that he continued to experience nightmares and sleep disturbance. He was anxious and unstable. The veteran was diagnosed with depression and PTSD symptoms. On August 2, 1997, the veteran underwent a VA examination. The veteran complained of frequent nightmares about leeches, snakes, shooting people between the eyes and other events that took place in Vietnam. The veteran continued to report sleep disturbance, depression, suicidal thoughts and flashbacks. He indicated that he could not get along with people and that he was nervous around them. Further, he felt paranoid most of the time because he thought people were trying to hurt him and were after him. He indicated that he had a lot of anger and that he was not comfortable with his job, because he had been reassigned from the warehouse to an office job. The veteran indicated that he was unable to talk about, or watch movies about Vietnam. He reported that he had only one close friend and that he had gotten married for the sixth time. The examiner indicated that the veteran had a constricted affect and a depressed mood. He was oriented and his memory was intact. He appeared to have difficulty with attention and concentration. There was no evidence of delusions, hallucinations or illusions. While the veteran often felt suicidal, at the time of the examination he denied suicidal or homicidal ideations. The veteran was diagnosed with moderate PTSD, recurrent major depressive disorder in partial remission and dysthymic disorder. A GAF score of 50- 55 was assigned. The examiner concluded that the veteran's PTSD was slightly progressed. In January 1998, the veteran reported that he was working in customer service which he found difficult due to having to deal with conflict. He did state that he found enjoyment in restoring his old car. He was diagnosed with dysthymia. In March 1998, the veteran reported experiencing daily panic attacks. He stated that he was nervous and had a fear of losing control. These feelings tended to make him forgetful and unable to concentrate. He stated that he had been unable to work a full week of work for approximately 5 months. He indicated that he had frequent violent thoughts. A VA physician noted that the veteran's memory was intact and his judgment and insight were described as fair. He was diagnosed with dysthymia and PTSD by history. In a statement received on June 25, 1998, the veteran alleged that his PTSD had increased in severity. In September 1998, the veteran reported that his relationship with his wife had deteriorated and that he was also having difficulty being around people. It was noted that the veteran felt that he was continuously stressed. The veteran's most recent VA psychiatric examination was performed on February 7, 1999. At this examination, the veteran reported experiencing nightmares regarding Vietnam experiences every night. The veteran stated that he was only able to sleep four to five hours per night and that he frequently screamed, kicked and tore up the bed. The veteran's wife threatened to sleep in another room and even to leave him due to his increasing symptoms and because he refuses to socialize with or relate to anyone. He further indicated that he was having difficulty with his job; he was isolating himself from everyone; he had no friends; he did not trust anyone, including his wife; he became easily angered and he believed these symptoms had worsened over the last year. He also indicated that he experienced panic attacks when he was around people and that over the prior year he had not been able to write checks and pay bills, because he was unable to concentrate. The veteran stated that he is very angry and that small things cause him severe anxiety. At the time of the examination, the veteran was still employed as a supply technician at Tinker Air Force Base. The examiner indicated that the veteran had a somewhat disheveled appearance. The veteran was tense and fidgeted with his fingers. He did not maintain eye contact with the examiner and his mood was depressed. The veteran's affect was flattened and blunted, but he was coherent and goal oriented. There was no evidence of hallucinations, delusions, or memory impairment. The veteran was diagnosed with PTSD which was found to be significantly progressed and dysthymia secondary to PTSD. He was assigned a GAF score of 50 to 55. The examiner indicated that based on the veteran's file and evaluation, his primary difficulty was related to PTSD. He appeared to be having more frequent and more intensive intrusive thoughts, hypervigilance, social isolation and difficulty controlling his anger. The veteran also showed dysthymia/depression. The examiner stated that the depression was directly related to the veteran's PTSD. In deciding the veteran's appeal the Board has considered all of the pertinent evidence, including the VA treatment records. The outpatient records document the veteran's complaints and the impressions and diagnoses rendered. However, the outpatient records do not provide detailed mental status findings or other information needed to assess the degree of severity of the disability. On the other hand, the VA examinations were performed, in part, to determine the degree of severity of the service-connected disability. The VA examination reports provide detailed information needed for rating purposes. Therefore, the Board has found the VA examination reports to be the most probative evidence of the degree of severity of the service-connected disability. In the Board's opinion, the evidence establishes that prior to August 2, 1997, the disability did not more nearly approximate the criteria for a 50 percent rating than those for a 30 percent rating under the new or former criteria. In this regard, the Board notes that the April 1996 VA examination report reflects that although the veteran reported a number of psychiatric complaints and difficulty with his supervisor at work, it also reflects that the mental status examination was essentially negative and that the examiner found the veteran's PTSD to be mild. The examiner provided a GAF score of 60, which is indicative of moderate symptoms (e.g. flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). See DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition) 44-47. This VA examination report is the most probative evidence of the degree of impairment from the service-connected psychiatric disability during the period prior to August 2, 1997, and it provides no reasonable basis for concluding that the disability more nearly approximated the new or former criteria for a 50 percent evaluation. On the other hand, the mental status examination in connection with the VA examination performed on August 2, 1997, disclosed that the veteran's affect was constricted, his mood was depressed, his concentration and attention span were impaired, and he was suspicious and paranoid. A GAF score of 50 to 55 was provided. A GAF score of 50 is indicative of serious symptoms. In addition to the aforementioned symptoms, such symptoms as suicidal ideation, severe obsessional rituals, and frequent shoplifting may be present, or there may be serious impairment in social, occupational, or school functioning manifested by such symptoms as having no friends or an inability to keep a job. See Id. The Board also notes that the August 1997 VA examiner specifically noted that the service-connected psychiatric disability had progressed since the most recent VA psychiatric examination. Therefore, the Board finds that for the period commencing August 2, 1997, the disability did more nearly approximate the new and former criteria for an evaluation of 50 percent. For the period prior to February 7, 1999, there is no substantiation in the record that the disability was productive of more than considerable social and industrial impairment. While the veteran reported that he experienced difficulty with work and getting along with other people, he was able to maintain his employment and to maintain effective relationships with others as evidenced by his remarriage and his ability to maintain a close friend. Further, the veteran was able to find enjoyment in restoring his old car. In addition, the medical evidence for the period prior to February 7, 1999, does not document the symptoms required for a 70 percent evaluation under the new criteria. Therefore, the Board concludes that the disability warrants a 50 percent evaluation for the period from August 2, 1997, through February 6, 1999, but not higher. The VA examination on February 7, 1999, disclosed that the veteran's service-connected psychiatric disability had progressed significantly since the August 1997 VA examination. At the February 1999 examination, the veteran reported an increase in severity of his psychiatric symptoms. In addition, the examiner found the veteran to be disheveled, tense, and depressed. The examiner noted that the veteran avoided eye contact and was nonspontaneous. In addition, the veteran's affect was noted to be flattened and blunted. The examiner commented that the veteran was experiencing more frequent and intensive, intrusive thoughts, hypervigilance, social isolation and difficulty controlling his anger. In the Board's opinion, the February 7, 1999, VA examination report establishes that the disability more nearly approximated the new criteria for a 70 percent evaluation than the new criteria for a 50 percent evaluation. Accordingly, a 70 percent evaluation is warranted from that date. The record reflects that notwithstanding the increase in severity of the veteran's psychiatric disability, the veteran has maintained his employment at Tinker Air Force Base and has maintained his current marriage. He has not manifested symptoms contemplated by a 100 percent evaluation under the former or new criteria. In sum, the evidence demonstrates that from February 7, 1999, the disability has more nearly approximated the criteria for a 70 percent evaluation than those for a 100 percent evaluation, under the new and former criteria. Accordingly, an evaluation in excess of 70 percent is not warranted. ORDER An evaluation in excess of 30 percent for PTSD with dysthymia for the period prior to August 2, 1997, is denied. A 50 percent evaluation for PTSD with dysthymia is granted for the period from August 2, 1997, through February 6, 1999, subject to the criteria governing the payment of monetary benefits. A 70 percent evaluation for PTSD with dysthymia is granted for the period commencing February 7, 1999, subject to the criteria governing the payment of monetary benefits. SHANE A. DURKIN Member, Board of Veterans' Appeals