Citation Nr: 0004165 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 92-22 475 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Alvin D. Wax, Attorney at Law ATTORNEY FOR THE BOARD Kathleen Reardon Fletcher, Associate Counsel INTRODUCTION The veteran served on active duty from December 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1991 rating decision by the Indianapolis, Indiana RO that denied entitlement to an increased (greater than 10 percent) rating for PTSD. This case was before the Board in May 1994 and March 1996 when it was remanded for additional development. In June 1998, the Board issued a decision denying entitlement to an increased rating for PTSD. On August 9, 1999, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) issued an order that granted a joint motion for partial remand, vacated that part of the Board's June 1998 decision that denied entitlement to an increased (greater than 10 percent) rating for PTSD, and remanded the case to the Board for action in compliance with the joint motion. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim for an increased rating for PTSD has been obtained by the RO. 2. The veteran's service-connected PTSD is productive of no more than mild social and industrial impairment. 3. The veteran's service-connected PTSD is productive of no more than 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. CONCLUSION OF LAW The criteria for a rating greater than 10 percent for the veteran's service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.132, Code 9411 (1996); 38 C.F.R. § 4.130, Code 9411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background By rating action in September 1989, the RO granted service connection for PTSD, effective December 1988, and assigned a 10 percent evaluation under Diagnostic Code 9411. In July 1991, the veteran filed a claim for an increased (greater than 10 percent) rating for PTSD. He indicated that he was currently hospitalized for PTSD. VA hospitalization records note that the veteran was admitted to a VA hospital in July 1991 due to depression and suicidal plans. The veteran reported symptoms of decreased sleep, increasing isolation and increasing irritability. Appetite was noted to be good. Examination revealed that the veteran was alert and oriented times three. Memory was intact in all spheres. Mood was gloomy and affect was appropriate. Judgment and insight were good. There was no homicidal ideation. There were no auditory or visual hallucinations. Speech was normal. Thought content included some flashbacks and some vague suicidal thoughts. Diagnoses included PTSD and history of alcohol abuse. At the time of his discharge, approximately one week after admission, the veteran was considered capable of returning to full employment. VA outpatient treatment reports dated in August 1991 note that the veteran was seen and evaluated for complaints of restlessness, sleeplessness, depressed mood, suicidal tendencies, and alcohol abuse. Impression was depression, some symptoms of PTSD, and alcohol abuse. A July 1992 special VA PTSD examination report notes the veteran's complaints of war-related nightmares, recurrent intrusive memories of bombings, recurrent irritability and sleeping difficulty, and exaggerated startle response. A significant history of hypervigilance with numerous physical fights was also noted. The examiner stated that, with respect to social functioning, the veteran appeared to be quite active. Specifically, the veteran reported playing basketball and cards with friends, attending church functions, and going to restaurants with his girlfriend. Upon mental status examination, the veteran was alert and oriented in all three spheres. The veteran was quite pleasant, cooperative and relaxed; he smiled at times. Memory was intact. Mood was gloomy but affect demonstrated a full range of emotions. The veteran showed no psychotic symptoms and denied suicidal and homicidal thoughts. Judgment and insight were good. Speech was presented in a normal tone with a normal pace. The veteran was able to complete serial 7 calculations as well as demonstrate abstract thinking. Diagnosis was mild PTSD. The examiner noted that the veteran stated he had submitted a claim for increased rating for PTSD due to difficulty dealing with people on the job. The examiner further noted that the veteran appeared to have suffered mild employment impairment in the past, secondary to irritability and hypervigilance. Furthermore, the examiner noted that the veteran "has had a long history of numerous multiple odd jobs over the years but has not worked for the past nine months secondary to the poor economy." It was opined that the veteran was currently "quite capable of maintaining gainful employment." In addition, the examiner stated that the veteran "appears to have symptomatology consistent with mild PTSD but does not give a history consistent with an increase in the intensity or frequency of his symptomatology." It was opined that the veteran did not "demonstrate any impairment in his social functioning" at the time of examination. A November 1992 VA report of hospitalization notes that the veteran was admitted to the emergency room with complaints of hallucinations and suicidal ideation. The veteran denied symptoms of PTSD, including flashbacks and nightmares. It was noted that the veteran had been drinking a half-pint of liquor and or six beers a day. Alcohol withdrawal protocol was implemented. During hospitalization, no suicidal attempts or gestures were attempted. Upon mental status examination at discharge, the veteran was appropriately groomed. The veteran was alert and oriented times four. No defects in memory were noted. Mood was good; affect was somewhat constricted. The veteran denied homicidal or suicidal ideation. He denied any psychotic symptoms. Speech was fluid and lucid. Intellectual functioning was within normal limits although somewhat concrete. Insight and judgment were adequate. No hallucinations or illusions were noted. Diagnoses at discharge included PTSD, alcohol abuse, and atypical psychosis. A VA hospitalization report notes that the veteran was admitted in February 1993 due to major depression, PTSD and suicidal ideation. The veteran indicated that he heard voices commanding him to jump off a bridge. His auditory hallucinations reportedly were associated with flashbacks. The veteran also reported frequent feelings of uselessness and a history of alcohol abuse, which reportedly had ended two years earlier. Upon mental status examination, the veteran was appropriately groomed. No defects in memory were noted. The veteran was alert and oriented times four. Mood was good; affect was constricted. The veteran denied homicidal or suicidal ideation at the time of interview. Speech was fluid and lucid. Intellectual function was within normal limits, although it was somewhat concrete. Judgment and insight were adequate. No hallucinations or illusions were noted. At discharge, the veteran denied auditory or visual hallucinations; denied depression, and denied homicidal or suicidal ideation. Diagnoses at discharge included atypical psychosis, PTSD, and alcohol abuse in remission. On discharge, the veteran was considered stable, and capable of returning to full employment. Also of record is a December 1993 disability determination examination report conducted by Tony Perez, M.D., for the Social Security Administration (SSA). The veteran's history of drug and alcohol abuse, PTSD, and auditory hallucinations "on top of this" was noted. The veteran reported that he still drinks "heavily" on a daily basis. The examiner noted that the veteran's major concern was polysubstance abuse and history of alcoholism, which required further evaluation and rehabilitation. The examiner indicated that the veteran was in no position to hold down a job due to polysubstance abuse. The report of a psychological evaluation conducted in January 1994 for SSA reflects the veteran's reports of a long history of hearing voices that commanded him to harm himself or others. He related that he drank a pint of gin each day, and had consumed a half-pint of whisky before the interview. The examiner noted alcohol on the veteran's breath. Mental status examination revealed no signs or symptoms of thought disorder, but the veteran displayed a blunt affect and prominent signs of depression. He expressed recent suicidal ideation, irritability, and a history of paranoid thoughts and feelings. Although he was clearly able to perform and function in a fairly independent manner, his ability to sustain performance appeared somewhat impaired by psychologically based symptoms such as a reported history of hallucinations, dysphoria, and daily alcohol abuse. Diagnostic impressions included PTSD, alcohol dependence, and major depression with psychotic features. The veteran was considered eligible to receive disability benefits from SSA. A VA hospitalization report notes that the veteran was admitted in February 1994 with complaints that he was hearing voices, which told him to kill himself. He also reported war flashbacks, survivor guilt, loss of sleep and energy, and decreased concentration. Upon mental status examination, the veteran was somewhat disheveled. He was oriented times four. Speech was quiet and affect was somewhat flat. There were no specific delusions. Insight was fair and judgment was poor. At the time of discharge, the veteran was not suicidal or homicidal. Diagnoses included PTSD, alcohol hallucinosis, and alcohol dependence. A December 1994 VA special PTSD examination report notes that the veteran appeared with alcohol on his breath. He reported symptoms of irritability and nervousness. He also indicated that he occasionally heard voices and felt more depressed when using alcohol. He stated that his symptomatology has not particularly changed over the past 20 years. Upon mental status examination, the veteran was alert and oriented in all phases. He displayed no agitation, anxiety, irritability, or anger. His verbalizations were generally coherent and unpressured. There were no psychomotor symptoms. The veteran described his mood as "depressed" and "gloomy." During the examination, the veteran displayed a reasonably full range of emotion with no emotional lability or tearfulness. He was cooperative and pleasant throughout the interview. He denied suicidal or homicidal thoughts or plans. He reported intermittent episodes of auditory hallucinations, possibly related to episodes of significant alcohol consumption. Cognitive functioning was reasonably good. Diagnoses included alcohol abuse, opioid abuse and cocaine abuse in remission, and PTSD. The examiner's conclusion and opinion was that the symptomatology described by the veteran was "only mildly suggestive" of PTSD. The principal diagnosis, considered to be much more appropriate than PTSD, was alcohol abuse with a history of alcoholic hallucinosis. The "very minimal symptoms" of PTSD were considered not to have increased since the veteran's prior evaluation. Substance abuse treatment was the recommendation for any significant improvement in his overall condition. VA hospitalization reports note that the veteran was hospitalized for depression and suicidal ideation from October 1995 to November 1995. During his hospital course he was seen in consultation with the substance abuse program. It was also noted that the veteran progressed throughout the hospitalization to the point where he was no longer suicidal, his affect was significantly improved, and his depression was decreased. Diagnoses included: PTSD; major depressive disorder, recurrent, severe, with mood congruent psychotic features; and polysubstance abuse, in remission. An October 1996 VA special PTSD examination report notes the veteran's complaints of auditory hallucinations. He indicated that he heard voices intermittently, and that the voices were less intense when he was not drinking. He also indicated that he has nightmares sometimes. The veteran reported that he was separated from his wife and was living with his brother-in-law. He indicated that he used to attend bible college, and plans to return to finish his studies. Upon examination, the veteran was alert and oriented in all phases. Verbalizations were in normal tone and cadence. The veteran did not display any pressured or bizarre forms of speech. Behaviorally, he displayed no anger or hostility. He was not hyperalert, distracted or nervous. He described his mood as "down"; affect was quiet with no emotional lability. He denied any suicidal or homicidal thoughts or plans. Thought processes were reasonably grounded in reality. The veteran did not appear to be acutely psychotic. The veteran also reported that his symptoms were substantially reduced with medication. Diagnoses included: alcohol abuse and dependence, chronic and continuing; cocaine abuse, intravenous in reported remission; heroin abuse, in reported remission; substance abuse induced mood disorder, alcohol; substance induced psychotic disorder; and history of PTSD. The examiner's conclusion and opinion was that the veteran was exhibiting the long term deterioration of chronic alcohol abuse and dependence, including signs and symptoms of substance abuse induced mood disorder and substance abuse psychosis. The examiner stated that "the great majority of [the] veteran's symptomatology relates to his chronic an[d] continuing substance abuse." The examiner further stated that the veteran's Global Assessment of Functioning (GAF) scale, would range from 60 to 65, reflecting mild to moderate symptoms that include intermittently depressed mood, mild insomnia, and some difficulty in social or occupational functioning with occasional flat affect and circumstantial speech. The examiner stated: The veteran's principal problem is alcohol dependency. The veteran has shown no willingness or interest in maintaining sobriety as a lifestyle, and continues to abuse alcohol. He says he likes to drink a couple of six-packs and maybe a half pint of whiskey. It appears that the substantial part of this veteran's social and occupational impairment relates to his substance abuse problems and not to his Post Traumatic Stress Disorder. In fact, his PTSD seems quite minimal in relation to his substance abuse problems. The evidence of record also includes VA outpatient treatment records dated from 1989 to 1997, which reflect ongoing medication and intermittent counseling for psychiatric symptoms and substance abuse. Various diagnoses were indicated, to include PTSD, alcohol and drug abuse and dependence, alcohol hallucinosis, atypical psychosis considered possibly secondary to ethanol use, schizoaffective disorder, and major depression with psychotic features. Private medical records dated in May 1997 reflect treatment for cocaine dependence. Analysis Initially, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, he has submitted a claim that is plausible- capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990), Proscelle v. Derwinski , 2 Vet. App. 629 (1992). Moreover, it appears that the evidence has been fully developed and the RO has complied with its duty to assist the veteran in the development of that evidence. However, on the basis of the entire record, the Board finds that an increase is not warranted. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has reviewed the veteran's claim for an increased evaluation for his service-connected psychiatric disorder in light of the history of the disability; however, where, as in this case, 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. Francisco v. Brown, 7 Vet. App. 55 (1994). During the course of the veteran's appeal, the regulations pertaining to psychiatric disabilities were revised. At the time the veteran filed his claim for an increased rating, his service-connected psychiatric disorder was evaluated under 38 C.F.R. § 4.132 as in effect prior to November 7, 1996. Diagnostic Code 9411 (post-traumatic stress disorder) and other codes pertaining to psychoneurotic disorders provide for a 10 percent rating when symptomatology is less than the criteria required for the 30 percent evaluation, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment. A 30 percent rating requires definite impairment in the ability to establish or maintain effective and wholesome relationships with people, where the psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. A 50 percent rating is assigned when the ability to maintain effective or favorable relationships with people is considerably impaired, and by reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. A 70 percent rating is assigned when the ability to establish and maintain effective or favorable 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 rating is assigned when totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality and disturbed though or behavioral process associated with almost daily activities such a fantasy, confusion, panic, and explosions of aggressive energy result in a profound retreat from mature behavior. The veteran must have been demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). On November 7, 1996, the rating criteria for psychiatric disorders were revised and are now found at 38 C.F.R. § 4.130 (1999). The revised rating criteria provides that post- traumatic stress disorder (Code 9411), as well as other mental disorders, are to be assigned a 10 percent rating for 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 rating is assigned 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 rating is assigned when there is 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 assigned 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 worklike setting); inability to establish and maintain effective relationships. 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 name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). As the veteran's claim for an increased rating for a psychiatric disorder was pending when the regulations pertaining to psychiatric disabilities were revised, he is entitled to the version of the law most favorable to him. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Applying the old criteria, the Board finds that there is no persuasive evidence that shows that the veteran's psychiatric disorder in and of itself produces more than a mild (10 percent) degree of industrial impairment. The examiners at all of the veteran's more recent VA examinations (July 1992, December 1994, and October 1996) characterized the functioning impairment due to his PTSD as being "mild." In addition, the Board notes that the veteran's substance abuse is a significant factor in his industrial impairment, as reflected in least in part by a December 1993 SSA examination report and an October 1996 VA examination report. Service connection has been denied for alcohol abuse and applicable regulation prohibits using manifestations not from a service connected disability to establish the evaluation of a service connected disability. 38 C.F.R. § 4.14 (1999). With regard to social impairment, such is significant to the rating process only to the extent that it affects industrial impairment. 38 C.F.R. § 4.129 (prior to November 7, 1996); 38 C.F.R. § 4.126 (since November 7, 1996). Even so, the evidence shows that such is no more than mild in degree. In order to meet the criteria for a rating greater than 10 percent, the veteran would have to show definite impairment in the ability to establish or maintain effective and wholesome relationships with people, where the psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). Definite impairment is construed to mean distinct, unambiguous and moderately large in degree, more than moderate but less than rather large. VAOPGCPREC 9-93 (November 9, 1993). The record demonstrates that when VA examined the veteran in October 1996, his social impairment was largely attributed to his substance abuse problems rather than his service-connected PTSD. VA examiners in 1992 and 1994 described the veteran's PTSD as no more than mild. During the course of the October 1996 VA examination, the examiner described the symptoms as "mild to moderate" with a GAF score of 60 to 65. According to the American Psychiatric Associations DSM-IV, a score between 70 and 61 contemplates mild symptoms, or some difficulty in social, occupational, or school function, but generally the individual was functioning pretty well and had some meaningful interpersonal relationships, and a score between 61 and 51 contemplates moderate symptoms or moderate difficulty in social, occupational or school functioning. With VAOPGCPREC 9-93 in mind, the Board construes the characterizations of the veteran's PTSD as "mild and "mild to moderate" as being significantly less in intensity than "moderately large." Clearly, then, the findings of record would not reflect disability in excess of that contemplated by the currently assigned rating. The treatment records and VA examination report of record show that the veteran's PTSD was more appropriately characterized as mild rather than moderately large in degree. With respect to the new rating criteria, the Board notes that recent medical evidence, including the 1996 VA examination, does not demonstrate that the veteran's PTSD has resulted in 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). An October 1996 VA examination report notes no evidence of anxiety, suspiciousness, panic attacks, chronic sleep impairment or memory loss. The objective medical findings demonstrate that the veteran has problems with a depressed mood; however, the veteran's service-connected PTSD itself is productive of no more than 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. His psychiatric impairment does not exceed that for a 10 percent evaluation under the new rating criteria. Again reference must be made to the GAF assessment as discussed above which weigh heavily against a rating in excess of 10 percent. In addition, the Board again notes that a substantial part of the veteran's social and industrial impairment has been attributed to his substance abuse, rather than his service-connected PTSD. Under the schedular criteria for a 30 percent rating, the symptoms must result in intermittent periods of inability to perform occupational tasks; however, the evidence does not establish that any periods of an inability to perform occupational tasks are due to PTSD symptoms, as opposed to the nonservice connected substance abuse problems. The examiner at the last examination in 1996 characterized the PTSD symptoms as minimal compared to the substance abuse problems. In fact the diagnosis of PTSD was by history only and the examiner in 1994 characterized the PTSD symptoms as very minimal. Under the circumstances, the clear weight of the evidence is against a finding that the PTSD results in more than mild or transient symptoms. Consequently, the Board finds that an increased rating is not warranted under the new criteria. 38 C.F.R. § 4.130, Code 9433 (1999). In conclusion, the Board finds that the weight of the evidence establishes that the veteran's service-connected PTSD is no more than 10 percent disabling under either the old or new regulations concerning ratings for 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); Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER Entitlement to an increased rating for PTSD is denied. C. W. SYMANSKI Member, Board of Veterans' Appeals