Citation Nr: 0002087 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 98-16 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial disability rating higher than 30 percent for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from September 1964 to August 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of August 1998 by the Department of Veterans Affairs (VA) Cleveland, Ohio, Regional Office (RO). The appeal stems from disagreement with the original disability rating assigned for post-traumatic stress disorder. FINDINGS OF FACT 1. All evidence necessary for equitable resolution of the issue on appeal has been obtained. 2. The post-traumatic stress disorder is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: panic attacks more than once a week; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW The criteria for an initial disability rating of 50 percent for post-traumatic stress disorder are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran has appealed the initial 30 percent rating which was assigned in an August 1998 rating decision after granting service connection for PTSD. The is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Fenderson v. West, 12 Vet. App. 119 (1999) (separate rating for separate periods of time or "staged" ratings may be assigned at the time of an initial rating and the claim is inherently well grounded). A claimant will generally be presumed in such cases to be seeking the maximum benefit allowed by law and regulation. AB v. Brown, 6 Vet. App. 35, 38 (1993). The VA has a duty to assist the claimant in developing facts which are pertinent to well grounded claims. See 38 U.S.C.A. § 5107(a) (West 1991). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue on appeal has been obtained. The evidence includes the veteran's service medical records, and post-service medical treatment records. He has been afforded a disability evaluation examination and a personal hearing. The Board does not know of any additional relevant evidence which is available. Therefore, no further assistance to the veteran with the development of evidence is required. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. Pursuant to the regulations in effect November 7, 1996, and thereafter, Diagnostic Code 9411 under redesignated 38 C.F.R. § 4.130 provides that a 30 percent rating is warranted when post-traumatic stress disorder is productive of 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, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted where 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 warranted where 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); and inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The veteran testified in support of his claim for an increased rating for post-traumatic stress disorder during a video teleconference hearing in May 1999 from the Huntington RO. He stated that he had problems for many years since leaving Vietnam. He said that he had held 7 or 8 jobs since then. He also reported that he could not show emotions. He said that he had difficulty sleeping and would wake up during the night to check the lines. He said that he spent much of his time using a computer. He testified that he felt depressed and did not look forward to the future. He said that he knew a lot of people, but did not have close relationships because he did not trust people. He said that he had started to go to church, but did not socialize. He stated that he felt that medication which had been prescribed for him had helped a little bit. He reported doing volunteer work for a couple of hours a few times a week. The report of a clinical assessment prepared by George S. Hall, M.A., L.P.C.C., dated in April 1998 shows that the veteran gave a history of spending 13 months in Vietnam. He also gave a history of having a heart attack in February 1997 at which time his doctors put him into a liquid induced coma for a total of 16 days due to the severity of his condition and his level of agitation. A four-way bypass was performed. The veteran reported that he had problems since returning from Vietnam. He had trouble relaxing, trouble with being agitated, and his sleep was poor with dreams about Vietnam. He had a hard time watching war movies. His wife reportedly had complained that he swung his arms during sleep. He lived in a fairly isolated area, and "watched for movement" when he went outside. He reported sometimes thinking that suicide was the only way out, but he denied having a plan or intent to do so. He reported that he drank for a number of years, but had not do so since 1980. He said that he did not have a need for food or shelter assistance since his wife worked and he was currently receiving disability retirement from the State Teacher's Retirement program. He had been married since April 1969, and had two adult children who were on their own. He had worked for a school district as a custodian, and had been receiving disability retirement benefits since his heart attack. The report further shows that the veteran's daily activities included going to cardiac rehabilitation. He did household chores, but at a reduced pace and amount. He said that his cardiologist had told him to forget about going back to work. He reported having no previous psychiatric treatment and no legal problems. On mental status examination, the veteran was alert and oriented. His mood was depressed, and he showed little emotion. He admitted to suicidal ideation but had no plan or intent. There were no oddities of speech or thought content suggesting psychotic disturbance. His hygiene was appropriate, and he was dressed causally. He was cooperative during the interview process. The diagnostic impressions were post-traumatic disorder, chronic; and dysthymia, late onset. The stressors included being a Vietnam combat veteran and recent job loss due to disability. The examiner assigned a current Global Assessment of Functioning (GAF) score of 60, and estimated that highest GAF score for the past year to be 70. On a VA post-traumatic stress disorder examination in May 1998, it was noted that the veteran had served in the Marines in Vietnam from June 1967 to August 1968. He reported traumatic events including being at Khe Sahn where they were pinned down by rockets and mortars for 77 days. He said that they lost a lot of lives, and that he recalled carrying a soldier who had an un-exploded mortar in his stomach. He also recalled digging two captains out of a bunker. One was dead, and the other had a broken leg. He said that his unit subsequently was placed at Da Nang where they were ambushed and seven men died and six were wounded. He said that he was the only one who was not hit. He also reported an incident in which a radioman died. The veteran reported that he had frequent nightmares related to these incidents. He also said that he sometimes awoke with his heart pounding and his hands shaking. He also said that he had flashbacks off and on. He said that he lived in the woods and that whenever he took his dog out he had to watch everywhere so that he felt safe. He said that he could not hunt anymore. He reported thinking about Vietnam and the terrible incidents daily. He got irritable and did not socialize with anyone. He said that he was a loner. He said that about a month earlier he had started going to a VAMC for treatment and had been placed on medication that he felt had helped. He denied any actual suicide attempts, but said that he had previously driven a car 100 miles per hour. The veteran gave a history of working at a steel mill from 1969 until 1980 when it shut down. He then worked in a high school as a custodian for fifteen years until he had a heart attack in 1997. He had an automatic defibrillator placed in the left chest wall. He said that he was now receiving a pension from the School Employee Retirement System. On mental status examination, the veteran was cleanly dressed and cooperative, honest, and open. He had good eye contact. He was well oriented to three spheres. He complained of forgetfulness and stated that he did not remember much about the previous year. His affect was reactive. There was some anxiety and depression. There were no hallucinations or delusions. No homicidal or suicidal thoughts were present. He reported experiencing insomnia, nightmares, flashbacks, intrusive daily recollections of traumatic events, vigilance and feelings of detachment. The diagnosis was post-traumatic stress disorder. The examiner assigned a GAF score of 51-60. VA outpatient medical records show that the veteran has received treatment for his post-traumatic stress disorder. The records reflect that the severity of the disorder has varied. A VA medical treatment record dated in April 1998 shows that the veteran complained of having mood swings, depression, anxiety and feelings of rage for 30 years. He gave a history of becoming physically violent easily. He said that he had a depressed mood that was worse in the morning. He also reported a decrease in memory and appetite, and feeling withdrawn. He said that he had insomnia and nightmares 2 to 3 times a month. He denied having paranoid ideas or homicidal or suicidal ideation. The examiner prescribed medications. A VA individual psychology treatment record dated in May 1998 shows that the veteran had no overt emotional extremes, but reported throwing a flashlight and narrowly missing a family member. In May 1998, the veteran said that he was doing alright. He denied having any side effects or problems. He said that he no longer had flashbacks or nightmares. His sleep was restful. He also reported that he was no longer depressed or having any panic attacks. A post-traumatic stress disorder clinic record of the same date shows that the veteran's problems were in full remission. A PTSD clinic record in August 1998 also shows that the veteran's problems were in full remission with continued medication. On a November 1998 visit, the veteran said that he was doing alright, but that he became tired easily and slept for 10 hours a night. On mental status examination, he was coherent, relevant and had an appropriate affect. On a psychology assessment dated in March 1999, psychological testing reflected that the veteran had severe depression and severe anxiety. A VA psychology record dated in April 1999 shows that the veteran was extremely socially withdrawn due to feeling increasingly defensive around other people. A GAF score of 51-60 indicates moderate psychological symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational , or school functioning (e.g., few friends, conflicts with peer or coworkers). See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington, DC, American Psychiatric Association, 1994. Based on the foregoing evidence, the Board finds that the post-traumatic stress disorder is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: panic attacks more than once a week; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Accordingly, despite some rather marked improvement with treatment at times, the Board concludes that the criteria for a 50 percent disability rating for post-traumatic stress disorder are met throughout the initial rating period. The Board further finds, however, that the disorder generally has not resulted in 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); and inability to establish and maintain effective relationships. Such symptoms are generally not noted in the medical evidence or have been relatively isolated. His hygiene and appearance, for example, have not been neglected. Further, although the veteran has occasionally reported suicidal ideation, he did not have a plan or intent. The Board also notes that the impairment associated with the veteran's nonservice-connected heart disease may not be considered when assigning the rating for his service- connected psychiatric disorder. See 38 C.F.R. § 4.14 (1999) (the use of manifestations not resulting from service- connected disease or injury in establishing the service- connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided). Accordingly, the Board concludes that a rating higher than 50 percent is not warranted. Finally, the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." See 38 C.F.R. § 3.321(b)(1)(1999). There has been no showing that the veteran's service-connected disorder has resulted in marked interference with employment or necessitated frequent periods of hospitalization. He has not been recently hospitalized for the disorder and there has been no medical evidence that the veteran is unemployable due to PTSD. Rather, the evidence reflects that the veteran's inability to return to work and subsequent retirement followed a heart attack and heart surgery. Under these circumstances, consideration of an extra-schedular rating is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A 50 percent rating for post-traumatic stress disorder is granted, subject to the law and regulations applicable to the payment of monetary benefits. CHARLES E. HOGEBOOM Member, Board of Veterans' Appeals