Citation Nr: 0002022	
Decision Date: 01/27/00    Archive Date: 02/02/00

DOCKET NO.  96-40 617	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Togus, 
Maine


THE ISSUE

Entitlement to an initial disability rating in excess of 30 
percent for post traumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Maine Division of Veterans 
Services


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. Jeffers, Associate Counsel

INTRODUCTION

The veteran had active service from April 1964 to April 1966.

This case previously came to Board of Veterans' Appeals 
(Board) from a July 1995 rating decision of the Hartford, 
Connecticut, Department of Veterans Affairs (VA), Regional 
Office (RO), which granted service connection for PTSD and 
assigned a 10 percent rating.  The veteran testified at a 
personal hearing in September 1996 and submitted additional 
evidence.  In a September 1996 decision, the hearing officer 
granted an increased 30 percent rating.  On November 7, 1996, 
various amendments became effective as to sections of the VA 
Schedule for Rating Disabilities pertaining to Mental 
Disorders.  The RO reconsidered the issue on appeal but 
denied entitlement to a higher disability rating under both 
the 'old' and 'new' versions of this regulation in a May 1997 
supplemental statement of the case.

In June 1997, the veteran's representative informed VA that 
the veteran was presently a resident of Maine.  Therefore, 
jurisdiction of his claims file was transferred to the Togus, 
Maine RO.  The record also indicates the veteran failed to 
appear for his hearing before a Traveling Member of the Board 
in Togus, Maine that was scheduled on October 16, 1997.

In November 1997, the Board remanded this case to the Togus, 
Maine RO for additional evidentiary development.  Following 
compliance, the RO confirmed and continued the denial of the 
benefit sought in an October 1999 supplemental statement of 
the case.


FINDINGS OF FACT

1.  The veteran filed his 'original' claim for service 
connection for PTSD on October 5, 1994.

2.  Evidence developed since October 1994 reveals that the 
veteran's PTSD has been no more than "definite" occupational 
and social impairment, and is primarily manifested by an 
occasional decrease in work efficiency and intermittent 
periods of inability to perform occupation tasks due to 
symptoms such as difficulty falling or staying asleep, 
irritability or outbursts of anger, difficulty concentrating 
and hypervigilance.  Reduced reliability and productivity due 
to symptoms such as flattened affect, speech disturbances, 
panic attacks, etc. are not shown.


CONCLUSION OF LAW

The schedular criteria for a disability rating in excess of 
30 percent for PTSD are not met.  38 U.S.C.A. §§ 1155, 
5107(b) (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.7, 
4.129, 4.130, Diagnostic Code 9411 (1996); and § 4.126(a), 
Diagnostic Code 9411 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran's claim of entitlement to a disability rating in 
excess of 30 percent for PTSD is well grounded within the 
meaning of 38 U.S.C.A. § 5107(a) (West 1991).  That is, he 
has presented a claim which is plausible.  Generally, a claim 
for an increased evaluation is considered to be well 
grounded.  A claim that a condition has become more severe is 
well grounded where the condition was previously service-
connected and rated, and the claimant subsequently asserts 
that a higher rating is justified due to an increase in 
severity since the original rating.  Proscelle v. Derwinski, 
2 Vet. App. 629, 632 (1992).

VA has a duty to acknowledge and consider all regulations 
which are potentially applicable based upon the assertions 
and issues raised in the record and to explain the reasons 
used to support the conclusion.  Schafrath v. Derwinski, 1 
Vet. App. 589 (1991).  These regulations include, but are not 
limited to, 38 C.F.R. § 4.1 (1999), that requires that each 
disability be viewed in relation to its history and that 
there be an emphasis placed upon the limitation of activity 
imposed by the disabling condition, and 38 C.F.R. § 4.2 
(1999) which requires that medical reports be interpreted in 
light of the whole recorded history, and that each disability 
must be considered from the point of view of the veteran 
working or seeking work.  38 C.F.R. § 4.10 (1999) states 
that, in cases of functional impairment, evaluations are to 
be based upon lack of usefulness, and medical examiners must 
furnish, in addition to etiological, anatomical, 
pathological, laboratory and prognostic data required for 
ordinary medical classification, full description of the 
effects of the disability upon a person's ordinary activity.  
These requirements for the evaluation of the complete medical 
history of the claimant's condition operate to protect 
claimants against adverse decision based upon a single, 
incomplete or inaccurate report and to enable VA to make a 
more precise evaluation of the disability level and any 
changes in the condition.

The United States Court of Appeals for Veterans Claims (known 
as the United States Court of Veterans Appeals prior to March 
1, 1999) (hereinafter, "the Court") has held that where the 
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 
appellant will apply.  Karnas v. Derwinski, 1 Vet. App. 308, 
313 (1991).  Thus, unless it has retroactive effect, a new 
law or VA regulation is not applicable to a claimant where it 
is less favorable, requiring VA adjudication of a claim under 
both the new and old versions to determine the extent to 
which each may be more favorable.  DeSousa v. Gober, 10 Vet 
App 461, 467 (1997) (citing Lasovick v. Brown, 6 Vet. App. 
141, 151 (1994)).  Moreover, a recent opinion of the VA 
Office of General Counsel held that whether the amended 
mental disorders regulations are more beneficial to claimants 
than the prior provisions should be determined on a case by 
case basis.  VAOPGCPREC 11-97 (Mar. 25, 1997).

In this regard, the regulation in effect prior to November 7, 
1996, provided for a 30 percent rating when the veteran's 
ability to establish and maintain effective and wholesome 
relationships with people was definitely impaired; by reason 
of the psychoneurotic symptoms result in reduction in 
initiative, flexibility, efficiency and reliability levels as 
to produce definite industrial impairment.  A 50 percent 
rating required that the ability to establish and maintain 
effective or favorable relationships with people be 
considerably impaired; by reason of psychoneurotic symptoms 
the reliability, flexibility and efficiency levels as to 
produce considerable industrial impairment.  A 70 percent 
evaluation required that the ability to establish and 
maintain effective or favorable relationships with people be 
severely impaired; the psychoneurotic symptoms must be of 
such severity and persistence that there is severe impairment 
of the ability to obtain work or retain employment.  A 100 
percent evaluation required that the attitudes of contact 
except the most intimate are so adversely affected as to 
result in virtual isolation in the community.  There must be 
totally incapacitating psychoneurotic symptoms bordering on 
gross repudiation of reality with disturbed thought and 
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.  The veteran must be demonstrably unable to 
obtain or retain employment.  38 C.F.R. Part 4, Diagnostic 
Code 9411 (1996).

Under the criteria which came into effect on November 7, 
1996, a 30 percent evaluation is required when there is 
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 required when 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 rating is required 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 in adapting to stressful circumstances (including 
work or a worklike setting); inability to establish and 
maintain effective relationships.  A 100 percent rating is 
required when 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. Part 4, Diagnostic Code 9411 (1999).

In Hood v. Brown, 4 Vet. App. 301 (1993), the Court stated 
that the term "definite" in 38 C.F.R. § 4.132 was 
"qualitative" in character, whereas the other terms were 
"quantitative" in character, and invited the Board to 
"construe" the term "definite" in a manner that would 
quantify the degree of impairment for purposes of meeting the 
statutory requirement that the Board articulate "reasons or 
bases" for its decision.  38 U.S.C.A. § 7104(d)(1) (West 
1991).  The General Counsel of VA also concluded that 
"definite" was to be construed as "distinct, unambiguous and 
moderately large in degree" to the extent that it represented 
a degree of social and industrial inadaptability that is 
"more than moderate but less than rather large."  VAOPGCPREC 
9-93 (November 9, 1993).  The Board is bound by this 
interpretation of the term "definite."  38 U.S.C.A. § 7104(c) 
(West 1991).

Because the veteran has perfected an appeal as to the 
assignment of an initial rating following the initial award 
of service connection for PTSD, the Board is required to 
evaluate all the evidence of record reflecting the period of 
time between the effective date of the initial grant of 
service connection until the present.  See Fenderson v. West, 
12 Vet. App. 119 (1999).
VA outpatient treatment records developed between July 1991 
and October 1994 included a late-October 1994 clinical record 
which shows that the veteran was seen in the Mental Hygiene 
Clinic (MHC) after being fired from his job.  He stated that 
he was not well off financially, but was working for himself.  
He added that he was afraid of not making the right decision.  
The diagnostic assessment was that the veteran needed 
structure - recommended that he continued to try to build 
business - financial problem appears temporary.

The veteran was afforded VA examination in July 1996.  On 
mental status examination, he was alert and oriented to time, 
place and person.  His affect was anxious and sad.  His mood 
was dysphoric, but there was no evidence of suicidal or 
homicidal ideas or plans.  His thought process and thought 
content were organized and free of any delusional thinking or 
hallucinations.  He was able to do substractions 7 and 
similarities.  His proverb interpretation was colored by his 
pessimistic thinking.  His memory was intact.  He was able to 
recall three words after five minutes.  His insight and 
judgment were fair.  The Axis I diagnosis was chronic, mild, 
combat-related PTSD.  The examiner commented that the veteran 
suffers from combat-related PTSD which was severe in the past 
but now appears to be mild in nature.  He had an episode of 
major depression in the past and now has a dysthymic 
disorder.  This appeared to be related to his PTSD, which 
caused chronic internal distress and chronic impairment in 
functioning.  The veteran was noted to be employable because 
he was highly motivated to work.  He was also competent.

A July 1996 statement from the veteran's VA readjustment 
therapist, a registered nurse, indicated that he belonged to 
a weekly support group.  His delayed stress reactions 
symptoms for combat-PTSD were listed as co-occurring 
depression, nightmares, anger, emotional constriction, 
isolation, frustration, hyper-alertness, avoidance, anxiety 
and intrusive thoughts.  The readjustment therapist indicated 
that the veteran remains socially and occupationally 
impaired.

A September 1996 statement from the veteran's clinician, a 
registered nurse, indicated that, pursuant to the DSM IV 
Manual, the veteran's Axis I diagnoses are: chronic, delayed 
treatment, combat-related PTSD; recurrent, severe major 
depression; and alcohol dependence in remission for 3 years 
with one day relapse in 1995, suicide attempt with beer and 
drug overdose (O.D.) on a friend's Valium.

The veteran also testified at a personal hearing held by the 
Hearing Officer (HO) in September 1996.  He reported that he 
last worked in May 1994 as an arborist in the tree industry, 
and has been employed in that field since military service.  
He stated that he was fired after he got into a major verbal 
confrontation with the regional manager.  The veteran noted 
that he had been able to get some tree work, but he had only 
earned $2,000.  He explained that he had a tough time looking 
for jobs and keeping food in his stomach.  He noted that he 
goes to a group therapy session once a week, near his home, 
which has been arranged through the Veterans Center.  He 
further indicated that he stopped drinking in 1991, and that, 
since that time, his PTSD symptoms have erupted.

VA treatment records developed between April 1995 and 
December 1997 show treatment on occasion for PTSD and major 
depression.

In early-August 1998, the veteran was afforded a Social and 
Industrial Survey to assess his employment and functioning 
capabilities.  He and his wife were co-jointly interviewed by 
a VA social worker.  It was noted that the veteran was a 
bearded man of average height and build, who was dressed 
casually with better than average care.  He was tense but 
actively participated in the interview process which focused 
primarily on his educational and employment background.  He 
had been employed for about 2 years as a temporary postal 
clerk for the US Postal Service. He was living in Connecticut 
but had voluntarily transferred to Maine when an opening at 
another post office occurred.  He stated that he enjoyed his 
job; he was working a split shift which consists of stacking 
mail in the rear of the post office.  He worked alone and 
enjoyed not having to interact with other employees.  He was 
placed on the window servicing customers but found this too 
stressful.  He stated his work is meaningful but he is very 
tired when he comes home and usually has to retire to bed 
around eight in the evening.  His primary form of employment 
had been in the tree company business.  He had with one 
company in Connecticut for the prior eight years and with 
another company in Massachusetts for 20 years before that 
time.  He eventually supervised about 25 men for the company 
in Connecticut.  The veteran stated that he always felt 
irritable and would have frequent disagreements with both his 
boss and subordinates, but his overall performance was 
apparently satisfactory.  His boss at the company in 
Massachusetts, "Mr. O", fired him after 20 years of 
employment.  The veteran readily admitted that he drank up 
until 1991, when he suffered a cardiac attack and had to stop 
drinking at the advice of his physician.  The veteran is a 
high school graduate.  He attended three colleges, but never 
completed the first year at any of these 3 institutions.  He 
was a patient at the local VA outpatient clinic.  He took 
Prozac and more recently Zoloft.  He had chronic sleep 
disturbance and more recently had been put on some sleep 
medication to help him sleep more restfully.  The veteran had 
very little social life.  He enjoyed working in a small 
flower and vegetable garden in his back yard.  His spouse 
stated that he is very uncomfortable in groups and in public 
places such as restaurants and shopping malls.

In late-August 1998, the veteran was afforded a VA mental 
disorders examination.  At that time, he complained of sleep 
disturbance (difficulty getting to sleep, waking up in cold 
sweats and dreams, and difficulty getting back to sleep), 
anger when his routine gets broken, and social isolation.  He 
noted that these problems probably began in Vietnam, 
indicating that he first recognized them when he stopped 
drinking in 1991.  His more recent stressors included limited 
contact with his children and military trauma memories.  His 
identified emotional resources included his wife and his 
psychiatrist.  On mental status examination, it was noted 
that the veteran had a neat appearance which suggested the 
ability to maintain personal hygiene.  He was alert and 
oriented to person, place, and time.  His attitude was 
cooperative.  His motor activity was normal.  His mood was 
somewhat anxious and depressed.  His affect was constricted 
in range and appropriate to content.  The veteran reported 
limited panic symptoms, including chills and nervousness, 
which occur with anger when his routine is altered.  This 
experience may occur once a week and last for a few seconds 
but only momentarily interferes with functioning.  He 
reported that he is "regimented" and engages in some 
checking behaviors (e.g., double checking the alarm clock), 
but indicated that this behavior does not interfere with 
routine activities.  His speech flow was spontaneous, and his 
speech quality was good.  His thought process was coherent.  
Attention/concentration was noted to be fair.  His recall 
memory was good.  His recent and remote memory were 
apparently adequate upon screening.  His abstraction was 
concrete for proverb and good for similarities.  His 
reliability and self-report appeared adequate.  The veteran 
did not appear to describe any history of auditory or visual 
hallucinations, although he did note that he sometimes thinks 
he hears radio songs in his head.  He did not describe any 
delusions.  He denied recent suicidal ideation, plans or 
intent.  He did, however, acknowledge a history of one 
suicide attempt (1995, alcohol and medication overdose).  He 
contracted for safety.  He denied recent homicidal ideation, 
plans or intent.  He acknowledged some history of fight (nine 
in many years).  He thought that his impulse control was 
better than in the past, although with occasional temper 
outbursts (verbal and physical aggression to objects).  The 
veteran reported sleep disturbance even with medication, 
including sleep onset problems (weekly, due to thinking and 
inability to rest his mind), and mid sleep awakening (weekly, 
due to sweats), and although tired, he indicated that this 
does not interfere with his daytime functioning. He described 
his appetite as fair, with no significant recent weight 
change.  Bowel functioning was reportedly normal.  The 
veteran described the following typical daily routine: waking 
up at 4:00 a.m., having two or three coffees and cigarettes, 
showering, eating breakfast, going to work, sorting mail, 
going home, having a couple of more coffees, watching a 
little TV, taking a nap, getting up and showering, going back 
to work, getting the mail out, going home, relaxing, eating 
supper, watching TV, getting clothes laid out for the next 
day, going to bed before 9:00 p.m., and falling asleep 
between 9:00 p.m. and midnight.  The veteran identified as 
most bothersome the following traumatic events: (1) being 
beat up and thrown in the brig overnight by military police 
in Japan on the way to Vietnam; (2) upon arriving in Vietnam, 
pulling perimeter guard without any ammunition; (3) being 
told to fire artillery without projectiles as defense against 
being overrun (fortunately they were not overrun); (4) a 175 
mm artillery gun blowing up and killing and maiming members 
of his battery, including one sergeant whose legs were blown 
off; and (5) having his at the Air Force Base in Saigon 
levels by Vietcong shelling during his last night in Vietnam.  
These traumatic events involved actual or threatened death or 
serious physical injury of self or others.  During these 
events, the person's response reportedly involved intense 
feelings of helplessness or terror.

Clinical interviewing of the veteran on the 1998 VA 
examination identified the following current and persistent 
symptoms of re-experiencing the trauma: (1) recurrent and 
intrusive distressing recollections of the event, including 
images, thoughts or perceptions; (2) recurrent distressing 
dreams of the event; (3) intense psychological distress at 
exposure to internal or external cues that symbolize or 
resemble as aspect of the traumatic event; and (4) 
physiological reactivity on exposure to internal or external 
cues that symbolize or resemble an aspect of the traumatic 
event.  Based on the foregoing, the examiner identified the 
following current and persistent symptoms of 
avoidance/numbing (not present before the trauma): (1) 
efforts to avoid thoughts, feelings or conversations 
associated with the trauma; (2) markedly diminished interest 
or participation in significant activities; (3) feelings of 
detachment or estrangement from others; (4) restricted range 
of affect; and (5) a sense of a foreshortened future.  The 
examiner was also able to identify the following current and 
persistent symptoms of increased arousal: (1) difficulty 
falling or staying asleep; (2) irritability or outbursts of 
anger; (3) difficulty concentrating; and (4) hypervigilance.  
It was noted that overall, the veteran met diagnostic 
criteria sufficient to confirm a current DSM-IV diagnosis of 
PTSD, chronic.  The context of the evaluation suggested that 
these results are a fairly valid representation oft the 
veteran's current symptoms.  The veteran's MCMI-II profile 
was valid with regard to attention and item comprehension.  
Modifier indices suggested possible moderate exaggeration of 
current emotional problems, while retaining interpretative 
validity.  Adjusted for possible distortion, his profile 
suggested dependent, avoidant, and compulsive personality 
features.  Clinical scales suggested prominent somatoform 
concerns and anxiety, and the presence of dysthymia.  The 
examiner cautioned that these results should be regarded as 
hypotheses regarding the veteran's personality style and 
psychological functioning which need to be cross-validated 
with life history and behavioral observation data over time.  
The Axis I diagnoses were chronic (mild to moderate) PTSD and 
not otherwise specified depressive disorder.  The examiner 
commented that the veteran suffered from combat-related PTSD.  
He had a history of depression, with some apparent continued 
depressive symptoms.  He has a prior history of alcohol 
dependence, reportedly in remission.  The examiner noted that 
a GAF score of 60 was assigned since the service-connected 
psychiatric conditions appear to result in definite 
occupational impairment and considerable social impairment, 
due to such symptoms as: difficulty in establishing and 
maintaining effective work and social relationships, 
depressed mood, anxiety, and chronic sleep impairment.

After a review of the record, the Board finds that a higher 
initial disability evaluation for PTSD under the 'old' or 
'new' rating criteria is not warranted.  In reaching this 
conclusion, the Board is cognizant of the positive findings 
of increased anger, depression, and hostility.  The Board is 
also cognizant of the veteran's emotional and social 
impairment, in that he encounters difficulty with authority 
figures.  As such, the requisite criteria for an initial 
rating of 30 percent under both the 'old' and 'new' versions 
of the applicable regulations are met.

Although the veteran complains of self-isolation and 
depression, the Board is satisfied, based on a review of the 
record, that the veteran's mental disorder does not manifest 
itself in such considerable occupational and social 
impairment with incapacitating psychoneurotic symptoms, such 
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; as to require the next higher evaluation 
under 38 C.F.R. § 4.130 (1996) or § 4.126(a) (1999).  Indeed, 
the objective clinical findings show that the veteran has 
been consistently oriented in all spheres, has adequate 
attention and concentration, and intact recent and remote 
memory.  The veteran is coherent and relevant, and exhibits 
no indications of a psychotic disorder, including delusions, 
hallucinations, or current suicidal or homicidal ideation.  
His thoughts have been coherent.  He also remarried during 
the period in question.  Although the veteran also claims 
that his PTSD symptoms have greatly inhibited his 
employability, causing his to be fired after a major verbal 
confrontation with his boss in mid-1994, the Board observes 
that he was able to pursue his own business and thereafter 
obtain and maintain employment with the United States Postal 
Service.  While the veteran's symptomatology has undoubtedly 
increased since he quit drinking in 1991, his numeric GAF 
scores have been no lower than 60 which denotes no more than 
definite impairment.

In conclusion, the weight of the evidence establishes that 
the veteran's PTSD is no more than 30 percent disabling under 
either the old or new criteria for rating psychiatric 
disorders. As the preponderance of the evidence is against 
the claim, the benefit-of-the-doubt doctrine does not apply, 
and an increased rating must be denied.  38 U.S.C.A. § 
5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App 49 
(1990).


ORDER

A higher initial disability above the current rating of 30 
percent for PTSD is denied.



		
	CHRISTOPHER P. KISSEL
	Acting Member, Board of Veterans' Appeals