Citation Nr: 0000873 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 97-23 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an evaluation in excess of 70 percent for service-connected post-traumatic stress disorder (PTSD), on appeal from the initial grant of service connection. REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD C. Eckart, Associate Counsel INTRODUCTION The veteran had active service from March 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) from a May 1997 rating decision of the Hartford, Connecticut Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection and a 10 percent rating for the veteran's PTSD. In November 1997, the veteran testified at a personal hearing at the RO. In January 1998, the RO granted a 50 percent rating for the veteran's PTSD. The Board remanded the case to the RO in July 1998 for additional development. In April 1999, the RO granted a 70 percent evaluation for the PTSD, effective October 3, 1996, the date of the original claim for entitlement. Although the veteran's evaluation has been increased to 70 percent disabling in the April 1999 post-remand rating decision, this is not the maximum amount, and there is no documentation from the veteran indicating he desired to limit his entitlement to 70 percent evaluation. In AB v. Brown, 6 Vet. App. 35 (1993) the United States Court of Appeals for Veterans Claims (formerly United States Court of Veterans Appeals) (Court) held that a claim for an original or increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation. The Court also stated that it follows that such a claim remains in controversy "where less than the maximum available benefits is awarded." Id. at 38. Accordingly, this issue is properly before the Board. FINDINGS OF FACT 1. Sufficient evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's PTSD is manifested by impairment in the ability to establish and maintain effective relationships, and to obtain or retain employment, but he is not virtually isolated from the community, does not have totally incapacitating psychoneurotic symptoms, and is not demonstrably unable to obtain and retain employment due to PTSD; occupational and social impairment with deficiencies in most areas is shown, but the evidence does not demonstrate total occupational and social impairment. CONCLUSION OF LAW A schedular rating in excess of 70 percent for PTSD is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (1999); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant's contentions regarding the severity of his disability constitute a plausible or well-grounded claim. Shipwash v. Brown, 8 Vet. App. 218 (1995). The relevant facts have been properly developed, and, accordingly, the statutory obligation of the VA to assist in the development of the appellant's claim has been satisfied. 38 U.S.C.A. § 5107(a) (West 1998); Murphy v. Derwinski, 1 Vet. App. 78 (1991). Furthermore, he was not prejudiced by the RO's referring to his claim as an "increased rating" although the appeal has been developed from his original claim for service connection filed in October 1996. Upon review of the procedural history, it is found that throughout the pendency of the appeal, based on his testimony and evidence received as a result, the RO issued its 70 percent evaluation, to be effective from the time that original entitlement for PTSD arose in October 1996. Thus there is no need to discuss whether the RO properly issued staged ratings in this matter. See Fenderson v. West, 12 Vet. App. 119 (1999) I. Factual Background The veteran served in Vietnam from August 1968 to August 1969. He was awarded a Combat Infantry Badge, a Vietnam Service Medal with two Bronze Service Stars and a Vietnam Campaign Medal with 60/device, among other awards. He is also noted to have sustained a superficial fragment wound to the right knee in September 1968, for which he is service connected. VA medical center (VAMC) treatment records dated from 1993 showed that the veteran regularly attended therapy beginning in July 1993 when he was screened for "racing feelings, anxiety, nightmares, hypervigilant." He was treated with therapy and medication for PTSD, social phobia, and simple phobia, as noted in September 1993. His symptoms were noted to include a great deal of anxiety, plus depressive cognitions and behaviors. He was noted to be married, and apparently had anxiety when his wife was away, as described in September 1993. Vocationally, he was described as able to do well in one on one business dealings with customers, but didn't like to socialize and go to parties, as noted in November 1993. The report from a January 1997 psychiatric evaluation gave a history of the veteran having attended college shortly after being discharged from service. He gave the reason for attending college as due to his feeling unable to hold down a job because he felt "too racy." He described having significant nightmares and being unable to work during that time. He eventually did obtain a bachelor's degree in science, and taught school for three months; however, this became too distressful as he was extremely irritable with his students. After he quit that job, he found sales work later on, working briefly with different companies. For the last 20 years he has been working in one sales job, with minimal office detail. He was said to report to an office once every two weeks or so. The rest of the time, he was said to work independently out of his house, with typically daily visits with his customers. He was said to have long term relationships with these customers. He described that the work has been waning and that he has been unable to get more sales. This job was said to afford him contact with people, many of whom he has known for years at this point. Other significant events were described as marrying around 1980 and raising his wife's children from another man. He considered these children to be his own. Subjective complaints again included that he is too "racy." He reported that he has great difficulty sleeping due to being overly aroused, particularly after discussions about Vietnam. He also described being very irritable, causing great distress to his family during periods. He reported that "I know I'm not easy and my wife knows that too." He reported being extremely anxious regarding his current job situation, with a sense of foreshortened future regarding it. He described his company as being vulnerable, and this caused him great distress, as he believed he would be unable to function in more traditional sales work in an office 10 to 12 hours a day. He was observed to get excited and more rapid in his speech, describing how he would get very "racy" if he had to be in an office. Objective findings from the January 1997 VA examination included thinking about his war experience, and in discussing the traumatic events, he claimed to be able to hear screaming, although he denied actual flashbacks in which he is unaware of where he is. He reported being extremely distressed when discussing events in the war and in seeing certain Vietnam movies. The veteran described avoidance symptoms and reported not describing war-related events to his wife until only recently, wishing to avoid that. He reported having periods of diminished interest in activities and feeling detached from his family. He had minimal contact with his brother and limited contact with his mother, although he spoke with her once a week by phone. He demonstrated constricted range of affect, and spoke with constricted voice. He reported a sense of foreshortened future, and that he expected to lose his job soon, and indicated that he felt that way regarding his job for about six years. He reported difficulty sleeping and staying asleep, particularly when watching war movies or discussing Vietnam, including writing about his stressors. He described continued outbursts of irritability that has been at times violent in the past, but he has never endangered his own family. He also endorsed difficulty concentrating and described his mind jumping from one topic to another at a very fast race, self described as "racy." He also endorsed marked symptoms of hypervigilance such as sitting with his back to a wall in restaurants, and of having slept with a loaded gun under the bed, only ending that behavior out of concern for his toddler grandson's safety. He also reported checking windows and doors before bed, and having exaggerated startle response to fireworks. He did not endorse any current symptoms of substance abuse. He complained that if he had not been in the war, he would have done much better financially. He gave a history of having been accepted into law school and business school, but felt unable to attend, secondary to "racy" feelings. He also gave a history of his irritability and difficulty to engage as resulting in great marital distress, which led to counseling on and off since 1980. He was noted to have done well in college. Based upon his reported symptoms, the examiner did opine that these symptoms have likely impaired his ability to earn a living, as he is unable to pursue sales tasks that would make him more gainfully employed. In fact, he was noted to have worked for 20 years in the same job, citing the flexibility and independence in his schedule. He was noted to spend his time alone doing the job, and to work out of his home the vast majority of the time, with visits to clients scattered throughout the day. He reported having one friend for the past 25 years. He also had friends through his wife and through church. PTSD, chronic (in partial remission) was diagnosed. His Global Assessment of Functioning (GAF) was 60. In a letter dated in January 1997, the veteran's readjustment counseling therapist reported that he had known the veteran since November 1996, when he first sought counseling services at the Hartford Vet Center. He indicated that the veteran's experiences in Vietnam of death and injury, combined with a sense of fear and helplessness, resulted in him having significant readjustment difficulties after service. He had difficulty in many employment positions, especially around authority issues, and his marital relationship had a long history of difficulties. In the letter the therapist noted that the veteran's PTSD was of such severity that his ability to establish and maintain effective or favorable social relationships was substantially impaired and there was severe industrial impairment as a result of his reliability, flexibility and efficiency levels. PTSD, chronic was diagnosed, social isolation and under employed was diagnosed. His GAF was noted to be 43. The veteran and his wife testified at a personal hearing at the RO in November 1997. His wife asserted that he does not sleep well at night and that he has nightmares. She testified that he dislikes crowds, and is very rude to unannounced visitors, including family members, to the point where his parents no longer visit him on holidays. Included in the veteran's testimony is an admission that he is no longer in current treatment, and gave the reason as his unhappiness with treatment procedures. He described his lone improvement in that he no longer carries guns. He described being able to deal with people on a one on one basis in his sales job, although he considered himself underemployed. He testified that he made around $32,000.00 the previous year, described his job duties as generally involving seeing between three to six clients a week, and indicated that his schedule was rather flexible. In a letter dated in September 1998, the veteran's readjustment counseling therapist stated that the veteran continued to receive treatment at the Hartford Vet Center, including weekly PTSD support group and individual counseling. He was said to continue having significant readjustment difficulties because of his military service and combat experiences, and that he continues to work in a very "sheltered" situation; with the flexibility of being on the road, making his own hours and working from home allowing him to maintain his current position, even while not performing at full potential. He was noted to be able to isolate himself vocationally, in an effort to avoid the demands and stress of competitive full time employment. The letter goes on to describe the veteran as continuing to have limited social interactions beyond the few activities he participates in with his wife, and that he has no friends. Identical to the letter this counselor drafted in 1997, PTSD, chronic, social isolation and under employed was again diagnosed and his GAF was again noted to be 43. VA treatment notes from 1996 to 1998 revealed treatment for complaints other than PTSD symptoms. The report from a VA examination in February 1999 gave a history of the veteran having worked for 18 years for the same company selling electronic equipment. He said that he did not have much pressure from this kind of work for the past 18 years and thus was able to survive and be employed all this time. However, he indicated that this company went under new management, and he is expected to do much more and feels that he cannot take that much stress and is afraid that he is going to lose his job. His present complaints included being constantly tormented by experiences from the Vietnam War, including flashbacks and nightmares that occur about 2 to 3 times a month. He described experiencing high anxiety and "shakes" nearly every day. He was said to be hypervigilant and feels that other people might harm him and remains like that nearly every day. He said that he avoids crowds, noises, and is not really able to deal with people very well. Consequently he was said not able to deal with stress, either at work or at home and can get easily angered and nearly becomes violent. However, he denied being violent or having any suicidal or homicidal ideas. He described having good and bad days but the underlying condition is chronic in nature. He has had no particular treatment, although he was put on Prozac one time, which caused hallucinations, and he stopped taking it. A recent history of treatment at West Haven VA was noted. Subjective complaints included anxiety and feeling aggravated all the time. He described that he lives in a state of quiet desperation all the time. Several times he has the shakes. He had panic attacks approximately 1 to 2 times a month. He described frequently hearing his fellow soldiers screaming out for help, and he becomes very distressed. He also was hypervigilant and has a number of guns in the house, in case someone is out to get him. He denied homicidal or suicidal ideations. He also had avoidance behavior, and avoids people, noises and any situation where he might get into confrontation. Therefore he cannot take any pressure and also dislikes confined rooms. He described a sense of foreshortened future and does not trust anybody. The veteran did not have impairment in thought processes or communication; although the voices could be quite vivid, and border towards hallucinations. The examiner did not think the veteran has any formal hallucinations, however. The veteran was said to feel paranoid all the time, but admitted this is because of imagination, rather than a specific feeling that someone is trying to get him. He had no inappropriate behavior, no suicidal or homicidal thoughts, was able to maintain personal hygiene and showed no memory loss or impairment. He presented no obsessive or ritualistic behavior and the rate and flow of speech was normal. He described panic attacks once or twice a month. His mood was depressed and anxious. He said that he easily loses control. He was able to control himself during the examination. There was some sleep impairment, particularly after a hard day. He gave a history of feeling "racy;" feeling depressed and this was speculated as a possible mild bipolar disorder. The veteran was deemed competent to handle finances. The diagnoses rendered included PTSD; rule out bipolar disorder, type II; rule out psychotic illness. His GAF score was 35. The summary included the assessment that the veteran continually reexperiences his combat stressors in the form of hearing voices and seeing things. He was also said to have behavioral avoidance of situations that remind him of the war, particularly in dealing with confrontations. He was said to have sense of foreshortened future and isolation. He was said to satisfy the criteria for PTSD, but also probably suffers some bipolar disorder type II, which needs to be ruled out. However symptoms of PTSD do not appear secondary to this. He was also said to have some associated depression, secondary to PTSD symptoms. His current GAF score was 35, because he has severe symptoms with some impairment in reality testing and communication secondary to PTSD, and is unable to work with people or deal with stressful situations and isolates himself. His life was also said to be governed by ideas that others are trying to get him, although he was aware that this is his imagination and not a full fledged delusion. Judgment and thinking can be seriously impaired, particularly when he feels threatened. He was described as only able to hold a very low level job and live with his very supportive wife. He was described as having few friends and unable to integrate in society. In summary, he was said to suffer from severe PTSD. The social and industrial survey noted a history of the veteran having obtained a bachelor's degree and briefly teaching for about 3 or 4 months, and quit because he lacked patience with the students. Employment in equipment repair from 1978 to 1981 was given, with him subsequently being fired after a "brawl" with a manager. The lengthy vocational history at his current place of employment from 1982 to present was noted, with earnings between $25,000.00 to $33,000.00 per year with bonuses. He expressed that the long term owner of the company died, and his customers were leaving the state, and he was now required to cover more territory. He described having to drive about 200 to 250 miles per day, and having "road rage" driving long distances. He indicated that he finds himself hoping nobody will answer when making a sales call. He expressed deep concern that his job may be phased out, and concern over his financial status if he loses his job, indicating that he may have much difficulty obtaining new employment. Socially, he was noted to be married 21 years, and described his wife as being extremely supportive, and his "soul mate." Activities he enjoyed were described as "sub solitary" such as spending time on his computer or doing chores around the house. He refused to answer the phone, saying he doesn't like to talk with people on the phone. He claimed to have no friends, but acknowledged that he attends church services weekly. He denied socializing with other church members and refused to become involved with a Bible study group. The social worker's assessment was that the veteran's chronic PTSD symptoms have clearly contributed to his significant employment and social dysfunction and impairment in his life. II. Analysis Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. Id. Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2 (1999). For a claim where the veteran has disagreed with the original rating assigned for a service- connected disability, it is necessary to determine whether he has at any time since his original claim met the requirements for a higher disability rating. See Fenderson. It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (1999), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3 (1999). If there is a question as to which evaluation to apply to the veteran's disability, 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. 38 C.F.R. § 4.7 (1999). In Fenderson the Court held that "staged" ratings could be assigned for separate periods of time based on facts found. Nevertheless, where the veteran files a claim for service connection for a disability incurred in service, the degree of disability that is contemporaneous with the claim shall be considered in assigning the initial disability rating and not the degree of disability manifested in service many years earlier. Moreover, unlike awards for increased disability ratings, there is no mechanism for awarding an initial disability rating earlier than the effective date of the award for service connection for that disability. Cf. 38 C.F.R. §§ 3.157; 3.400(o)(2) (1999). In this case, the RO assigned a 70 percent rating for service connection for PTSD effective from October 1996, and the Board will consider the evidence of record since that time in evaluating the veteran's claim. New rating criteria for psychiatric disabilities were promulgated and have been in effect since November 7, 1996. Pursuant to the holding of the Court in Karnas v. Derwinski, 1 Vet. App. 308 (1991), where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran will apply. Where the amended regulations expressly provide an effective date and do not allow for retroactive application, the veteran is not entitled to consideration of the amended regulations prior to the established effective date. Rhodan v. West, 12 Vet. App. 55 (1998); see also 38 U.S.C.A. § 5110(g) (West 1991) (where compensation is awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the Act or administrative issue). Therefore, the Board must evaluate the veteran's claim for a disability rating in excess of 70 percent from November 7, 1996, forward under both the old criteria in the VA Schedule for Rating Disabilities and the current regulations in order to ascertain which version is most favorable to his claim, if indeed one is more favorable than the other. For any date prior to November 7, 1996, the Board cannot apply the revised mental disorder rating schedule. The RO considered the veteran's claim for a disability rating in excess of 70 percent for his service-connected PTSD both under the criteria for evaluating the degree of impairment resulting from a mental disorder prior to revisions to that criteria which were made in November 1996 (see Hearing Officer's decision, dated January 1998) and under the revised criteria in the VA Schedule for Rating Disabilities. Moreover, the veteran was given an opportunity to respond. Accordingly, he will not be prejudiced by the Board's review of his claim on appeal because due process requirements have been met. VAOPGCPREC 11-97 at 3-4; Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). Under the old diagnostic criteria for rating psychiatric disorders, in effect prior to November 7, 1996, a 70 percent rating will be assigned when the ability to establish and maintain effective relationships with people is severely impaired, and the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent evaluation is warranted where 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 aggressive energy resulting in profound retreat from mature behavior, or where the veteran is demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). In Johnson v. Brown, 7 Vet. App. 95 (1994), the Court held that each of the criteria for a 100 percent rating is a separate and independent basis for an award of a total disability rating under code 9400 et seq. Under the new rating criteria, effective November 7, 1996, a 70 percent rating is warranted when there is 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 adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating 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. 38 C.F.R. § 4.130, Codes 9400-9434. Following a review of the evidence of record, the Board finds that the veteran does not warrant a rating in excess of 70 percent rating under either the old or the new criteria, as outlined above. On VA examination and Social and Industrial survey in February 1999, his social relationships were noted to be severely impaired and he was described as only able to hold a very low level job, secondary to his chronic and severe PTSD symptoms. He was found to continually reexperience his combat stressors in the form of hearing voices and seeing things, which tormented him. He was also said to have behavioral avoidance of situations that remind him of the war, particularly in dealing with confrontations. He was said to have sense of foreshortened future and isolation. He very uncomfortable in crowded public places and in social situations and the record reveals that his work situation was unique, in that he had a flexible schedule where he could work from home, and could meet clients on an individual basis. The evidence does not show that he meets the criteria for a 100 percent rating under either the old or the new rating criteria. Under the old criteria, it is not shown that the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. The record reflects that he has been married to his wife for many years, has children, and has relations with his family. He is involved with the church, has acquaintances, and keeps in touch with long term sales customers. He does not have totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, nor does he have 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. On VA examination of February 1999, the veteran did not have impairment in thought processes or communication; nor any formal hallucinations, no inappropriate behavior, no suicidal or homicidal thoughts, was able to maintain personal hygiene and showed no memory loss or impairment. He presented no obsessive or ritualistic behavior and the rate and flow of speech was normal. Moreover, it is not demonstrably shown that he is unable to obtain or retain employment due to PTSD. Although the VA examiner noted there was vocational impairment, and he was forced to work a modified work schedule, the evidence overall showed the veteran able to maintain substantial gainful employment in the same job for nearly 20 years. The January 1997 VA examiner also noted that the veteran's PTSD likely impaired his ability to earn a living; however, he had worked for 20 years in the same job. Hence, the Board finds that the veteran does not exhibit symptoms of any of the criteria for a 100 percent rating under the old rating criteria. Likewise, under the new diagnostic criteria, total social and industrial impairment is not shown. Gross impairment in thought processes or communications, persistent delusions or hallucinations are not shown. On VA examination in January 1997, while the veteran described continued outbursts of irritability that had been at times violent in the past, he reported that he never endangered his own family. On VA examination in February 1999, objective findings included that there were no disturbances of mental stream, thought or perception. Speech and communication were normal. There is no evidence of grossly inappropriate behavior; on examination no unusual mannerisms or behaviors were noted. There is no indication that the veteran poses a persistent danger of harm to himself or others. There is no evidence that he cannot perform tasks of daily living, including personal hygiene; on examination in February 1999, hygiene was normal. Furthermore, the examination found no disorientation of time or place and no memory loss. In short, the veteran does not objectively exhibit symptoms of any of the criteria for a 100 percent rating under the new rating criteria. The Board has also considered the November 1997 testimony of the veteran and his wife and finds that the testimony further supports the currently assigned 70 percent evaluation, in that it further establishes his ability to maintain substantial gainful employment and to maintain social contacts with between 3 to 6 customers per week. Hence, the preponderance of the evidence is against his claim. ORDER A schedular rating in excess of 70 percent for PTSD is denied. P.M. DILORENZO Acting Member, Board of Veterans' Appeals