BVA9507242 DOCKET NO. 92-10 855 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased evaluation for post-traumatic stress disorder, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The veteran served on active duty from March 1966 to June 1970. This matter comes before the Board of Veterans' Appeals (the Board) on a appeal from a December 1990 rating by the Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating in excess of 10 percent for the veteran's post-traumatic stress disorder (PTSD). In April 1991, the appellant filed a Notice of Disagreement with this evaluation. The case was remanded by the Board for the appellant to be accorded a social and industrial survey and a psychiatric examination. Both were conducted in August 1993 and are of record. Subsequently, in February 1994, the RO re-evaluated the appellant's claim and granted an increase in the schedular rating from 10 to 30 percent, the appellant's current schedular evaluation. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that his PTSD is productive of a greater degree of disability than is reflected by the 30 percent evaluation now in effect. The appellant asserts that he is unable to work due to PTSD symptoms, including intrusive thoughts, anger, and problems with authority. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the weight of the evidence is in favor of a 50 percent evaluation, but no higher, for the veteran's PTSD. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the agency of original jurisdiction. 2. The appellant reports that he has no friends and has not been employed since 1991. 3. The appellant's disabilities include PTSD, organic hallucinosis, alcohol and polysubstance dependence, and a personality disorder with narcissistic, schizotypal anti-social, and passive-aggressive traits. 4. The appellant's employment opportunities are also compromised by a history of legal difficulties, including multiple periods of incarceration. 5. The appellant's PTSD is principally manifested by anger, irritability, difficulty in sustaining concentration, depression, nightmares, flashbacks, and intrusive thoughts of his Vietnam experiences. 6. The appellant's history of frequently quitting jobs because he thought he had not been promoted quickly enough and his irritability with those in authority is in large measure attributable to the personality disorder with narcissistic traits. 7. The symptomatology resulting from the appellant's PTSD is productive of no more than considerable social and industrial impairment. 8. The PTSD symptoms do not present an exceptional or unusual disability picture such as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for a 50 percent evaluation for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.130, 4.132, Part 4, Diagnostic Code 9411 (1994). 2. The criteria for a 70 percent evaluation for PTSD have not been met; the PTSD does not preclude the appellant from securing or following a substantially gainful occupation or present an exceptional or unusual disability picture. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.130, 4.132, Part 4, Diagnostic Code 9411 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant asserts that his PTSD has increased in severity and precludes employment due to intrusive thoughts, anger, and problems with authority. In light of the evidence in the record and the appellant's assertions as to an increase in disability, the Board holds the appellant's claim well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991). See Proscelle v. Derwinski, 1 Vet.App. 629 (1992); King v. Brown, 5 Vet.App. 19 (1993). Once it has been determined that a claim is well grounded, the VA has a statutory duty to assist the appellant in the development of evidence pertinent to the claim. 38 U.S.C.A. § 5107. As mentioned previously, in February 1993 the Board remanded this case so that a social and industrial survey and a psychiatric examination could be conducted. Both were conducted in August 1993 and are of record. In addition a report of the appellant's hospitalization from July 20 to September 1, 1993 is of record. The Board is satisfied that all relevant facts have been developed and no further assistance is necessary to comply with the statutory duty to assist. Factual Background. The record reflects that the appellant served in Vietnam and in February 1970 sought treatment for injuries sustained in an altercation. A mental health clinic notation dated in February 1970 reflects that he had had continual problems with alcohol and was facing court-martial. The appellant was apparently incarcerated from March to May 1970. When he was released from service in June 1970, his pay grade was E1. On examination for separation from service in June 1970, the appellant reported depression and excessive worry due to being in Vietnam. The appellant initially applied for compensation for psychiatric problems in January 1976 while he was a patient at a VA hospital. He reported that he was not able to cope. He apparently left the hospital against medical advise in February 1976 and was given an irregular discharge. Depression coupled with adult situational reaction was the diagnosis given. In March 1989, the appellant applied for compensation for PTSD. On VA psychiatric examination in September 1989 the appellant reported that he had been a successful college student with a B average before service but that after he returned from Vietnam he felt "out of place;" that he experienced disturbed sleep, night- mares, impatience, an exaggerated startle response, and inability to tolerate the responsibilities of marriage and employment. The examiner noted that he had been treated for alcohol abuse in 1982 and gave the following diagnostic impressions: PTSD and history of alcohol abuse, in remission. In May 1990, the appellant was admitted to a VA hospital for treatment of his PTSD symptoms. He described intrusive thoughts of his Vietnam experiences, nightmares, flashbacks, difficulty with concentration, irritability, and startle responses. He related that he had used alcohol as a coping mechanism. He had a history of cocaine and marijuana abuse. He also reported that he had problems with close relationships and that he could not handle the stress of living with another person. Mental status examination revealed that his affect was constricted and sad. His mood was dysphoric. When released from the hospital in June 1990, the following diagnoses were given: PTSD, moderate severity; alcohol dependence; cocaine abuse; history of cannabis abuse; and personality disorder with narcissistic and passive- aggressive traits. His level of functioning as measured on the Global Assessment of Functioning (GAF) scale was 50-55 in the last month and about 55-70 for the last year. The appellant was again admitted to a VA hospital for increased problems with agitation and behavior control in July 1993. While hospitalized, he was accorded a psychiatric evaluation for compensation purposes in August 1993. The examiner noted that the claims file was available for review. By history it was noted that at the time of the appellant's admission to the hospital in July 1993, he reported nightmares and flashbacks. Additionally, he had recently been released from county jail. Psychological testing conducted in July 1993 indicated that the appellant was vulnerable to depression, perceptual distortion, unusual beliefs and sensory experiences, persecutory ideas and difficulties with attention and concentration. Test results also suggested problems such as conflicts with authority, limited insight, and difficulties with close emotional relationships. There was also evidence of introversion, anger, and impaired impulse control. However, there were also indications that the appellant could be reasonably sensitive to other people. The appellant reported hearing voices which tell him to commit violence against other people, since around the time he was discharged from service. He reported recurrent nightmares, and images of a fellow soldier's suicide, which he witnessed in service. The appellant stated that he was unable to hold a job, and that he usually walked out in anger. He reported that on his most recent job that he was overloaded with work and was required to take too much responsibility. In the hospital, he was referred to a program for homeless appellants, but said he would not stay in a program for long because he has "no respect for authority," which he attributed to an incident during service in which he was beaten up by police while on leave from Vietnam. He stated that he had no friends, and had not had a close relationship in three years. He states that he was frightened to have a close relationship because he might hurt somebody. Axis I diagnoses included a history of PTSD with anger discontrol, a history of polysubstance abuse, and organic hallucinosis. An Axis II diagnosis of personality disorder with narcissistic and anti-social traits was given. The examiner commented that flashbacks were not observed during this hospitalization. Some disturbed sleep was reported, but seemed to improve with an adjustment in medication. The examiner indicated that the appellant's history of frequently quitting jobs because he thought he had not been promoted quickly enough and his irritability with those in authority were suggestive of narcissistic traits. The examiner commented that the appellant's intrusive recollections of his military experiences, chronic sleep disturbance, irritability, and difficulty in sustaining concentration may reflect, at least in part, PTSD symptomatology. The examiner stated that the appellant's symptoms of PTSD "have probably caused significant impairment of his social and industrial capacity." As part of the VA examination, a social and industrial survey of pre-service and post-service functioning was completed in August 1993. Sources of information for the survey included the appellant, his sister, and hospitalization records from August 1993 until the time of the survey, and records from a prior hospitalization from May to June 1990. The survey reflected that the appellant had been unemployed and homeless since 1991, and relied on food stamps and VA benefits. He was married twice, both resulting in divorce. He had three sons with whom he had very little contact. The appellant reported that he has no close friends and had not maintained close relationships with his family members, except for his sister, since his return from service. He had grown increasingly concerned about his inability to control his anger and hold a job. He reported that he had been sober for nine months from all substances. Prior to service, the appellant maintained a good relationship with his family. He was an average student who largely stayed out of trouble. He was a "loner, " but did associate with his peers. The appellant served in the Air Force, and his assignments included service in Vietnam. During this assignment, he experienced frequent rocket and mortar attacks, witnessed deaths of his fellow soldiers, and observed one soldier's suicide. After the military, the appellant started college and then dropped out. He began going from job to job as a result of altercations with supervisors. He reported that he had never been fired from a job, but would often quit or fail to return to work after an altercation with a supervisor or fellow employee. The appellant estimated that he has held at least 40 positions, since he has left service, and reported that he has never held a job for longer than a year. He has worked primarily in food preparation as a chef or a cook. The appellant last worked for a Marriott hotel in 1991. He became irritable at work and angry that he was not being promoted, and quit after four months. He added that the work environment became intolerable when a Vietnamese male joined the staff. The appellant has also experienced trouble with the law, including arrests in the 1980's for public intoxication, and possession of a controlled substance (cocaine). His most recent arrest was in March 1993 and he had been released from jail in July 1993. The appellant's sister indicated that upon his return from Vietnam, the appellant began getting in trouble, avoided family activities, was unable to keep a job, and was irritable and moody. The social worker concluded that the appellant continued to experience symptoms of PTSD and chronic difficulties in interpersonal, occupational and social functioning since his discharge from service. It was commented that, " [D]espite reported sobriety of nine months, functioning appears to have further deteriorated in recent years with two recent hospitalizations and continued legal difficulties." The prognosis for improved functioning in social, familial, and occupational capacities was poor A summary of the appellant's hospitalization from July 20 to September 1, 1993, reflects that the appellant's history included alcohol abuse and PTSD with previous hospital admissions secondary to both, including hospitalization in 1982 for alcohol rehabilitation, and in May 1990 for PTSD. Problems with agitation and behavior control had increased. He had increased financial problems since he had been unable to maintain steady employment due to problems with authority figures. He felt "angry" towards people who "get in his way" which had led to depressive symptoms of anhedonia, insomnia, and occasional suicidal ideation, however, he has never made a suicide attempt. Symptoms related to his PTSD included nightmares and flashbacks. Recently, he reported hearing voices and stated that he needed to be hospitalized to get his life under control. He regularly used alcohol and was involved in drug trafficking. He denied suicidal or homicidal ideations, but related that he occasionally heard voices telling him to get other people, but not to inflict damage on himself. The voices were mainly heard when he was binge drinking. The Axis I diagnoses were as follows: history of PTSD with anger discontrol; history of polysubstance abuse; and organic hallucinosis. Personality disorder with narcissistic anti-social traits was listed as an Axis II diagnosis. He was medicated to control his anger. His hospital discharge condition was good. He was not considered to be suicidal, homicidal, or psychotic. In regard to his industrial capacity, it was noted that he was not employable at the present time secondary to his anger discontrol, but that hopefully, since he was being treated, the condition would "lessen." The summary reflects that the appellant's psychological, social, and occupational functioning as measure on the GAF scale was 55, i.e., reflective of moderate to serious symptoms or moderate to serious difficulty in social and occupational functioning, and that the highest GAF score for the past year was 60. Applicable Criteria. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). It is essential that each disability be viewed in relation to its history. 38 C.F.R. § 4.1 (1994). Medical evaluation reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2 (1994). Consideration of the complete medical history of the claimant's condition operates to protect claimants against adverse decisions based on a single, incomplete or inaccurate report, and to enable the VA to make a more precise evaluation of the level of the disability and of any changes in the condition. In this connection, it is noted that a person may be too disabled to engage in employment although he or she is up and about and fairly comfortable at home or upon limited activity. 38 C.F.R. § 4.10 (1994). It must be kept in mind that the use of manifestations not resulting from the PTSD in establishing the evaluation for this disorder is to be avoided. 38 C.F.R. § 4.14 (1994). Under the VA's Schedule for Rating Disabilities, a 30 percent evaluation is warranted for PTSD when there is definite impairment in the ability to establish or maintain effective or wholesome relationships with people and 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 (1994). A 50 percent evaluation is warranted for PTSD when there is considerable impairment in the ability to establish or maintain effective or favorable relationships with people and when psychoneurotic symptoms result in such reductions in the reliability, flexibility, and efficiency levels as to produce considerable industrial impairment. Id. A 70 percent evaluation for PTSD requires a severe impairment in the ability to establish or maintain effective or favorable relationships with people and psychoneurotic symptoms of such severity and persistence as to result in severe impairment in the ability to obtain or retain employment. Id. A 100 percent evaluation for PTSD is mandated when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community and there are totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes (such as fantasy, confusion, panic, and explosions of aggressive energy) associated with almost all daily activities resulting in a profound retreat from mature behavior. The individual must be demonstrably unable to obtain or retain employment. Id. A total rating may be assigned when the schedular rating is less than total if the disabled person is unable to secure or follow a substantially gainful occupation as a result of his service- connected disabilities. His service-connected disabilities must be sufficient to produce unemployability without regard to advancing age. However, if the only compensable service- connected disability is a mental disorder assigned a 70 percent evaluation, and this mental disorder precludes a veteran from securing or following a substantially gainful occupation, then the mental disorder should be assigned a 100 percent schedular evaluation under the appropriate code. 38 C.F.R. § 4.16(c) (1994). The appellant's mental disorder is his only compensable service-connected disability. In evaluating impairment resulting from psychiatric disorders, social inadaptability is to be evaluated only as it affects industrial adaptability. The principle of social and industrial inadaptability, the basic criterion for rating disability from the mental disorders, contemplates those abnormalities of conduct, judgment, and emotional reactions which affect economic adjustment, i.e., which produce impairment of earning capacity. 38 C.F.R. § 4.129 (1994). The severity of disability is based upon actual symptomatology, as it affects social and industrial adaptability. Two of the most important determinants of disability are time lost from gainful work and decrease in work efficiency. VA must not underevaluate the emotionally sick appellant with a good work record, nor must it overevaluate his or her condition on the basis of a poor work record not supported by the psychiatric disability picture. It is for this reason that great emphasis is placed upon the full report of the examiner, descriptive of actual symptomatology. The record of the history and complaints is only preliminary to the examination. The objective findings and the examiner's analysis of the symptomatology are the essentials. The examiner's classification of the disease as "mild," "moderate," or "severe" is not determinative of the degree of disability, but the report and the analysis of the symptomatology and the full consideration of the whole history by the rating agency will be. 38 C.F.R. § 4.130 (1994). To accord justice to the exceptional case where the schedular evaluations are found to be inadequate, an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be authorized. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1994). 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 (1994). Analysis. 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. Francisco v. Brown, 7 Vet.App. 55 (1994). The most recent evidence of the present level of disability is reflected in the social industrial study of August 1993, the psychiatric consultation also of August 1993, and the record of the appellant's hospitalization from July to September 1993. The considerations crucial to an evaluation of a mental disorder under the rating criteria for PTSD, Diagnostic Code 9411, include the degree to which the PTSD results in reduction in initiative, flexibility, efficiency, and reliability. Consideration of factors wholly outside the rating criteria would constitute error as a matter of law. Massey v. Brown, 7 Vet.App. 204 (1994). A review of this evidence reveals that prior to service the veteran was apparently a successful college student with a B average; after his release from service he attended college but found it difficult to concentrate, became disinterested and dropped out. He reported that he developed a "don't give a damn" attitude in Vietnam which stayed with him and that he felt "out of place" in society upon his return from Vietnam. He indicated that socially his only significant contact is his sister. He has been divorced twice, has very little contact with his three sons, two of whom he has not seen in ten years, and has no friends. Industrially, the appellant has a history of frequently quitting employment. He claims that he has never held a job for more than a year and has held more than 40 jobs since his release from service in 1970. He has not engaged in a gainful occupation since 1991. His PTSD symptoms are shown to consist of anger, irritability, difficulty with concentration, depression, nightmares, flashbacks, and intrusive thoughts of his Vietnam experiences. The appellant has sought inpatient care for his PTSD symptoms in 1990 and 1993. He was accorded psychiatric examination for disability evaluation purposes in August 1983, and a social and industrial survey was also completed in August 1993. These records reflect that his anger has caused him to become involved in conflicts with co-workers and supervisors, and consequently, to walk off jobs without returning. These facts reflect that the appellant has considerably impaired levels of flexibility and reliability. The VA examiner who evaluated the appellant in August 1993 commented that the appellant's symptoms of PTSD "have probably caused significant impairment of his social and industrial capacity." When he was released from the VA hospital in September 1993, the diagnoses include PTSD with anger discontrol, indicating that the anger is a manifestation of the PTSD. The GAF score of 55 given at the time of his release from the hospital in September 1993 reflects moderate to serious difficulty in social and occupational functioning as the result of all Axis I and Axis II diagnoses. However, the VA examiner in August 1993 commented that the appellant's history of frequently quitting jobs because he thought he had not been promoted quickly enough and his irritability with those in authority were suggestive of narcissistic traits. Thus, while the appellant's PTSD symptoms result in significant industrial impairment, the appellant's history of frequently quitting jobs is due in large part to the personality disorder. The Board notes that alcohol and drug use may be factors in the appellant's poor employment history. The Board is of the opinion that the appellant's PTSD symptoms cause considerable, but not severe, impairment in social and industrial impairment. While the VA examiner in August 1993 characterized the degree of impairment as "significant," this term is not used in the rating schedule and the Board considers the degree of impairment resulting from the PTSD to most closely approximates that characterized as "considerable" by the rating schedule. Thus, an increase in the appellant's schedular evaluation to 50 percent is warranted. The Board believes that an evaluation in excess of 50 percent for PTSD is not warranted. The GAF scores assigned when the veteran was released from periods of hospitalization in 1990 and 1993 reflect the presence of moderate to serious symptoms or moderate to serious difficulty in social and occupational functioning. While the GAF scores would not reflect impairment due to physical limitations, they do reflect impairment due to all the Axis I and Axis II diagnoses. As is evidence from the comments of the VA psychiatric examiner in August 1993, a great deal of the industrial impairment is due to the personality disorder. Additionally, the industrial impairment which may result from the appellant's history of legal difficulties and his history of substance abuse problems must be kept in mind in evaluating the impairment due to PTSD. 38 C.F.R. § 4.14 (1994). Given the above considerations, the Board finds that the social and industrial impairment attributable to PTSD, versus that due to other nonservice-connected conditions, is most appropriately characterized as considerable rather than severe. The Board finds that the facts outlined above are controlling in this case and establish that the appellant's PTSD does not result in more than considerable social and industrial inadaptability. The weight of the evidence is against a rating in excess of 50 percent on a schedular basis. The record establishes that the appellant is unemployed and has been unemployed for many years. The appellant had difficulties during service which apparently began while he was serving in Vietnam and which resulted in incarceration prior to his release from service. After 4 years of service, he was released with a pay grade of E1. He may never thereafter have maintained substantially gainful employment. Pertinent regulations provide that a veteran who is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, but who fails to meet the schedular criteria for a 100 percent rating or who fails to meet the percentage standards for a total disability rating based on unemployability should be given extra- schedular consideration. 38 C.F.R. §§ 3.321(b)(1), 4.16 (1994). In the Board's opinion the evidence does not reflect that the appellant's service-connected psychiatric disorder is so disabling as to preclude substantially gainful employment. As noted above, the appellant has many problems which adversely impact upon his ability to obtain and maintain substantially gainful employment, including a personality disorder with narcissistic, anti-social, passive-aggressive, and schizotypal traits, organic hallucinosis, alcohol abuse, cocaine abuse, and marijuana abuse, as well as a history of multiple legal difficulties and periods of incarceration. Consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4 whether or not they were raised by the appellant, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The evidence does not show that the appellant's PTSD presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of a 100 percent evaluation pursuant to the provisions of 38 C.F.R. § 4.16(c) or an extraschedular rating under 38 C.F.R. § 3.321(b)(1). The periods of hospitalization during 1990 and 1993 for PTSD do not reflect the frequency of periods of hospitalization needed for an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). Further, although the condition has interfered with the appellant's employment, such interference is the type of industrial impairment provided and accounted for by a 50 percent rating under Diagnostic Code 9411. Therefore, this case does reflect such an exceptional or unusual disability picture as to render impracticable the application of regular schedular standards. 38 C.F.R. § 3.321(b). The provisions of 38 C.F.R. § 4.7 have also been considered, but are not for application in this instance as the PTSD symptoms do not more nearly reflect the requirements for the next higher rating. ORDER An evaluation of 50 percent for PTSD is granted, subject to the regulations governing the disbursement of monetary benefits. GARY L. GICK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a deter- mination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, pro- vided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.