Citation Nr: 0000732 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 98-09 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an increased evaluation for post-traumatic stress disorder (PTSD), currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty from September 1966 to September 1969. This appeal arises from an April 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied an evaluation in excess of 30 percent for PTSD. The veteran's claim for an increased rating for PTSD was remanded to the RO in October 1998. In Stegall v. West, 11 Vet. App. 268 (1998) 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") held a remand by the Court or the Board of Veterans' Appeals (Board) confers on the veteran as a matter of law, the right to compliance with the remand orders. It imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. The RO has complied with the orders in the remand to the extent possible. The veteran's claim has been returned for further appellate consideration. In the introduction to the October 1998 remand the Board referred the issue of service connection for alcohol and substance abuse to the RO for appropriate action. The RO has not developed or certified that issue. For that reason, it is again referred to the RO for appropriate action. In December 1990, J. D. G., M.D., stated that the veteran was totally disabled and would, in all likelihood, never be able to work and recent examination reports show that the veteran has stated the he has been unemployed since 1989. Given the foregoing evidence, the veteran may wish to pursue claims of entitlement to a total rating based on individual unemployability or entitlement to an extraschedular rating based on 38 C.F.R. § 3.321(b)(1) (1999). Because these issues have not been addressed by the RO and are not before the Board on appeal, the matters are referred to the RO for any clarification or development deemed appropriate. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's PTSD is manifested by depression, increased anger, sleep impairment, and nightmares. The veteran, however, has good attention and fair concentration without impaired memory. 3. The disability results in no more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION In general, an allegation of increased disability is sufficient to establish a well-grounded claim when the veteran is seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Thus VA has a duty to assist. At the outset, it is noted that the veteran's combination of psychiatric impairments, some of which are related to PTSD and some of which can be attributed to other or multiple disorders, presented a complex medical question which only a competent medical professional is capable of addressing. When, as in this case, the medical evidence of record was insufficient, or of doubtful weight or credibility, the Board supplemented the record by ordering a medical examination, which was accomplished in March 1999. Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also 38 U.S.C.A. § 7109 (West 1991); 38 C.F.R. § 20.901(a), (d) (1999). Additional medical reports, including SSA reports, were also obtained. Although the Board notes that Dr. E. previously examined the veteran in 1993 and the Board's 1998 remand requested that the veteran be evaluated by an examiner who had not previously examined him, after reviewing Dr. E.'s report and the claims folder in its entirety, the Board finds that the March 1999 examination adequately addresses the severity of the veteran's PTSD and is fair and complete. The mandates of the Board's 1998 remand therefore have been substantially complied with. As such, the Board is satisfied that all relevant facts have been properly developed and no further assistance is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.326 (1999). Relevant Law and Regulations In evaluating the severity of a particular disability, it is essential to consider its history. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (1999). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the rating schedule. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Effective November 7, 1996, the VA Schedule of Ratings for Mental Disorders was amended and redesignated. The new criteria provides a 30 percent evaluation when 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) is demonstrated. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating requires 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 is demonstrated. Id. A 70 percent rating requires 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. Id. A 100 percent evaluation requires 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 names. Id. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of the VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (1999). Factual Background The Board has reviewed the claims folder in its entirety. Review of the claims folder has raised two pivotal questions. One, did the veteran appeal the origin decision by the RO which assigned a 30 percent rating for PTSD? Two, what if any psychiatric symptomatology of the veteran is attributable to his service-connected PTSD? Because these are the pertinent questions to be addressed, the Board has limited its recitation of the facts to the evidence which bear directly on those questions. Of note is the veteran's history of alcohol and substance abuse which is documented throughout the veteran's VA and private medical reports. Generally, medical reports dated from 1986 to 1994 also show that the veteran at various times had been treated for depression, nervousness, irritability, and suicide attempts and that diagnoses such as bipolar disorder, schizophrenia, and a personality disorder had been made. The RO denied the veteran's request to reopen his claim for service connection for PTSD in April 1994. The veteran perfected his appeal to the Board in May 1994. In February 1996 VA examined the veteran. After examination, which revealed that the veteran had recurrent and intrusive nightmares and flashbacks of service, difficulty relating to others, diminished interests, insomnia, and episodes of irritability and decreased concentration, PTSD was diagnosed. At that time, the examiner also stated that the veteran's symptoms showed some significant distress and impairment of social functioning. Based on that examination, the RO granted service connection for PTSD and assigned a 30 percent rating. A November 1996 letter to the veteran from the RO informed him that service connection had been granted and a 30 percent rating assigned. The RO then requested that the veteran inform them if he was satisfied with the decision. The veteran responded in November 1996 that he was satisfied with the decision. Thus the RO informed the Board that the veteran's appeal had been withdrawn. VA reexamined the veteran in February 1997 to determine the severity of his PTSD. On examination, the examiner initially questioned the diagnosis of PTSD, noting that in his opinion the veteran had alcoholic hallucinosis and alcohol and polysubstance abuse coupled with antisocial personality traits. Nevertheless, the examiner stated that the veteran's subjective complaints consisted of anxiety, depression, nervousness, and suspiciousness. The examiner also stated that the veteran had been married twice and had three child. Currently, however, he was unemployed, lived alone, and had no contact with his children. Objective evaluation revealed normal findings. No evidence of hyperalertness, jitteriness, nervousness, hostility, or irritability was shown. The veteran also did not manifest any physical symptoms of an inner emotional turmoil such as an exaggerated startle reflex or sympathetic hyperarousal. Range of affect was normal and suicidal or homicidal thoughts or plans were denied. The veteran did acknowledge being suspicious and guarded. The diagnoses included PTSD by history only. In his conclusion, the examiner stated that symptoms of PTSD were virtually nonexistent. Based on that examination, the RO continued the 30 percent rating for PTSD in an April 1997 rating action. The RO received notice of disagreement with that decision in January 1998 and thereafter issued the veteran a statement of the case. In June 1998 the veteran submitted his substantive appeal. The Board remanded the veteran's claim for a increased rating in October 1998, as a Global Assessment of Functioning (GAF) score had not been assigned. The Board ordered the RO to request that the veteran identify any records of treatment for PTSD. The remand also ordered that the veteran be examined. The examiner was requested to assign a GAF score, give an opinion as to the veteran's employability, and differentiate between the symptoms attributable to PTSD and any other diagnosed psychiatric disorders. In March 1999 the veteran was reexamined to determine the current severity of his PTSD. J. E., Ph.D., Clinical Psychologist conducted the evaluation. Dr. E. had previously evaluated the veteran in November 1993. The examiner noted in his review of the medical records that Dr. W. B., who was a Board certified psychiatrist, had last seen the veteran in 1997. In 1997 the diagnoses were alcohol abuse and dependence, chronic and continuing; cannabis abuse, chronic and continuing; polysubstance abuse; and history of PTSD. A diagnosis of personality disorder, not otherwise specified, specified with anti-social and narcissistic traits was also made. The VA examiner recorded the following complaints of the veteran. The veteran's chief complaint was that people aggravated him to the point that he became hostile and threatened them. For this reason, he stayed away from others and isolated himself in his own home. He, however, lived with his 18-year-old son. The veteran stated that he spent his time drinking. He said that he "self-medicates" by drinking 12 to 14 beers per day. He began drinking as soon as he awakened, which occurred between 3:00 and 5:00 a.m., and he drank beer until he passed out. That was when he slept. The veteran also complained of daily nightmares and "crazy dreams." He then added that he had not worked since 1988 or 1989 and that he used to like to read or fish. But, because of decreased concentration, he could no longer read or fish. He stayed preoccupied with stress. Examination revealed that the veteran was casually dressed and somewhat disheveled. His hygiene was fair. The veteran reported that he was depressed most of the time and his affect during most of the examination was angry. He expressed anger at the people in Frankfurt who took his driver's license away and stated that he would like to get a shotgun and blast them. The veteran then stated that he would not do this because he did not want to spent time in prison. Objective evaluation also revealed that the veteran was alert and well oriented, although he described auditory and visual hallucinations that he currently experienced. The veteran acknowledged seeing silhouettes of people in his house at night and hearing people talk. He denied receiving command hallucinations and having delusional thoughts. His attention was good and his concentration was fair. He was able to perform serial fives from 100 to 73 with one error and was slow in doing serial 7's. He correctly remembered 2 of 3 objects after 5 minutes and four digits forwards and three digits backwards. He also could complete simple calculations although he could not complete two-step calculations. The examiner noted that the veteran's main preoccupation was drinking alcohol. The veteran indicated that when he worked he only took jobs where he would be able to drink. Although he had attempted suicide in the past the veteran indicated that he was no longer having suicidal thoughts. The diagnoses were the following: Axis I: Alcohol Abuse and dependence, Alcohol induced mood disorder, Alcohol induced psychotic disorder, PTSD; Axis II: Personality disorder, not otherwise specified, with anti-social and narcissistic traits; and Axis V: Current GAF 35 to 40, if one includes the alcoholism as well was the PTSD. Disregarding the alcoholism and its consequences, current GAF was estimated to be 60. After examination, the examiner wrote that because of the veteran's heavy drinking, it was not possible to fully separate the alcoholism from his PTSD. He indicated that it was difficult to attach specific symptoms to specific disorders. He added that the veteran's hostility was not caused by a single disorder, but probably had contributions from his alcoholism and his PTSD. The examiner indicated that the veteran's unemployment was probably due to his PTSD as well as his alcoholism and his personality disorder. The only way to separate the symptoms would be if the veteran remained sober for a period of six months to two years. The examiner attributed the veteran's nightmares mostly to PTSD, but even in that case his alcoholism had a prominent effect on his mood and his sleep patterns. At the end of his report the examiner opined, "I also believe that apart from the patient's reported nightmares and insomnia he is not demonstrating significant signs of PTSD." It is also noted that the veteran's Social Security Administration reports dated from 1985 to 1992 are of record. Although the reports show that the veteran maintained that he was disabled due to symptoms attributable to PTSD, the reports primarily show that disability benefits were awarded based on his personality disorder and psychoactive substance dependence disorders. Analysis At the outset, the Board must first address the question as to whether or not the veteran appealed the original RO decision in November 1996. This is pivotal since it determines which mental disorders regulations will apply and whether this is a claim for an increased or an original rating. In this matter, the claims folder does not contain any communication from the veteran dated within one year of November 1996 which could be construed as a notice of disagreement. The only communication from the veteran was the November 1996 Statement in Support of Claim, in which the veteran clearly stated that he was satisfied with the RO's 1996 decision. Additionally, there is nothing in the claims folder that indicates that the veteran filed a claim for an increased rating during the year following the November 1996 RO decision. The records in the claims folder indicate that the RO scheduled the February 1997 VA examination and that the examination was not in response to any act of the veteran. It was not until January 1998 that the veteran expressed dissatisfaction with the 30 percent rating for PTSD and at that time, he clearly wrote that he disagreed with the April 1997 decision of the RO. Accordingly, the Board finds that this is a claim for an increased rating not an appeal of an original rating and that the new regulations which became effective in November 7, 1996 are applicable. An increased rating is based on a comparison of the symptoms of the veteran's service-connected PTSD with the criteria in the appropriate diagnostic code. The Board must consider the factors as enumerated in the various rating criteria for determining the current level of disability from the service- connected PTSD. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). Review of the clinical data and applicable law and regulations shows that the veteran's PTSD is appropriately rated as 30 percent disabling. On recent examination, although Dr. E. attributed the veteran's nightmares and insomnia to PTSD, he also indicated that the veteran's alcoholism contributed to his mood and sleep patterns. A GAF of 60 was assigned for PTSD. As the Court noted in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995), Global Assessment of Functioning is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) [hereinafter DSM-IV]. A 55-60 rating indicates "moderate difficulty in social, occupational, or school functioning." Id. Further, in this case, the veteran's PTSD does not cause impairment of long or short-term memory or present evidence of flattened affect, circumstantial speech or panic attacks. Even though recent examination evinced depression with an angry affect, findings also showed that the veteran's attention was good and his concentration was fair. He also performed serial fives from 100 to 73 with one error and performed serial 7's, although he was slow. He also correctly remembered 2 of 3 objects after 5 minutes and four digits forwards and three digits backwards. He completed simple calculations, too. Additionally, Dr. E. clearly indicated in his diagnosis that the veteran had alcohol induced mood disorder and psychotic symptoms. He further explained that the veteran's thoughts about violence toward others were strongly suggestive of anti-social or psychopathic personality disorder. They were not consistent with a PTSD pattern without a personality disorder. Moreover, Dr. E. stated that the veteran's unemployment was not solely attributable to his PTSD. The Dr. stated that the veteran's employment difficulty was due to alcoholism and personality disorder. He then added apart from the veteran's nightmares and insomnia, significant signs of PTSD were not demonstrated. In light of the foregoing, the Board finds that the veteran's clinical picture associated with PTSD more nearly approximates the criteria required for a 30 percent evaluation. Thus, entitlement to a schedular increased evaluation is not warranted. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. In this case, the Board acknowledges the veteran's representative assertions which maintain that the veteran's symptoms of PTSD and alcoholism are so intertwined that they can not be separated and the veteran's alcoholism is a symptom of his PTSD. However, as the representative correctly noted, the Court recognized in Barela v. West, 11 Vet. App. 280 (1998) that compensation is prohibited for disability which is the result of alcohol abuse. For that reason the evaluation of the veteran's PTSD would not vary, even if service connection for alcoholism were granted. Thus, additional consideration in this respect is not warranted. Based on the aforementioned reasoning, the Board finds that the preponderance of the evidence is against the veteran's claim and is not in equipoise. Entitlement to a schedular increased rating in excess of 30 percent for PTSD is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130; Diagnostic Code 9411. ORDER An increased rating in excess of 30 percent for PTSD is denied. C. Crawford Acting Member, Board of Veterans' Appeals