Citation Nr: 0001886 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 97-28 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a higher evaluation for post-traumatic stress disorder (PTSD) currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Cain, Associate Counsel INTRODUCTION The veteran had active service from May 1985 to July 1990. This case comes before the Board of Veterans' Appeals (Board) from an appeal of a rating decision by the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA), in which the RO granted service connection for PTSD and assigned a disability rating of 10 percent. During the appeal, the evaluation of this disability was increased to 30 percent, effective from the date of service connection in April 1996. This issue of entitlement to a higher disability evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The Board notes that the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims, hereinafter the Court), in Fenderson v. West, 12 Vet. App. 119 (1999) held, in part, that the RO never issued a statement of the case concerning an appeal from the initial assignment of a disability evaluation, as the RO had characterized the issue in the statement of the case as one of entitlement to an increased evaluation. Fenderson involved a situation in which the Board had concluded that the appeal as to that issue was not properly before it, on the basis that a substantive appeal had not been filed. This case differs from Fenderson in that the appellant did file a timely substantive appeal concerning the initial rating to be assigned for the disability at issue. The Board observes that the Court, in Fenderson, did not specify a formulation of the issue that would be satisfactory, but only distinguished the situation of filing a notice of disagreement following the grant of service connection and the initial assignment of a disability evaluation from that of filing a notice of disagreement from the denial of a claim for increase. Moreover, the appellant in this case has clearly indicated that what she seeks is the assignment of a higher disability evaluation. Consequently, the Board sees no prejudice to the veteran in either the RO's characterization of the issue or in the Board's characterization of the issue as one of entitlement to the assignment of a higher disability evaluation. See Bernard v. Brown, 4 Vet. App. 384 (1883). Therefore, the Board will not remand this matter solely for a re-characterization of the issue in a new statement of the case. FINDINGS OF FACT 1. All of the evidence necessary for an equitable disposition of the veteran's claim for an increased rating has been developed. 2. The veteran's disability from PTSD is manifested by symptoms of depression and social withdrawal, without more than mild difficulty establishing and maintaining effective work and social relationships; and without occupational and social impairment with 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; or impaired judgment or impaired abstract thinking. 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. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran has presented a well-grounded claim for an increased disability evaluation for her service connected disability within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). It has not been shown that additional relevant evidence exists that is not of record. The Board is satisfied that there is no further duty of VA to assist the veteran in the development of this claim under 38 U.S.C.A. § 5107 (West 1991). The Board must determine whether the weight of the evidence supports the veteran's claim or is in relative equipoise, with the veteran prevailing in either event. However, if the weight of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 4.3(1999); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability ratings are based on the average impairment of earning capacity resulting from the disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Separate diagnostic codes identify the various disabilities. The determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The evaluation assigned for service connected disability is established by comparing the manifestations reflected by the recent medical findings with the criteria in the VA's SCHEDULE FOR RATING DISABILITIES (SCHEDULE), codified in C.F.R. Part 4 (1999). The RO's February 1997 rating decision granted service connection for PTSD and assigned the veteran a 10 percent evaluation under Diagnostic Code 9411 from April 1996. Subsequently, a 30 percent rating was assigned from April 1996. Under the general rating formula for mental disorders, a 100 percent rating is assigned for 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 name of close relatives, own occupation, or own name. A 70 percent rating is assigned for 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 irritability, with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work-like setting); inability to establish and maintain effective relationships. A 50 percent rating is assigned for 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 30 percent rating is assigned where 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, direction, recent events). The veteran's service medical records did not indicate that she suffered from PTSD or any type of psychiatric disorder in service. However, in 1996 she reported that she had been raped while in service and was diagnosed with PTSD related to her rape in service. A March 1996 VA Behavioral Consultation and Liaison Psychology Service report indicated that the veteran was oriented times 3. Her speech was articulate and within normal limits in terms of productivity, coherence, and continuity. Her thought content was negative for preoccupations, obsessions, delusions, homicidal, or suicidal ideation. She denied a history of hallucinations. Her mood was within normal limits. She admitted to persistent dysphoric mood and anhedonia. She reported that she had a breakdown in 1993; she was under a great deal of stress and her mother died. She reported that she was hospitalized for a brief period of time and was given medication, which helped her. She asserted that she was over her mother's death, but still had a significant degree of life stress. She was a full time student and mother of three children. She reported that she had few coping mechanisms and had little social support. She reported depressive symptoms of dysphoric mood, anhedonia, fatigue, crying spells, social withdrawal, and sleep disturbance. VA outpatient treatment records from April 1996 to August 1996 indicated that the veteran had anxiety disorder and she reported continued stress. Those records also indicated that she attended two sessions of the trauma recovery program after being screened by the program and reporting a history of sexual trauma in the military. A September 1996 VA examination report indicated that the veteran reported that she was admitted to the VA medical center in Jackson, Mississippi's cardiology ward in early 1993. She reported that she had stress, anxiety, and depression. She had heart palpitations, tingling of the arms, trouble breathing, and her back pain was depressing her. She saw a cardiologist and was given nerve medication. She described herself at that present time as stressed, anxious, and depressed because of her back and knee pain. She asserted that she wakes up frequently in the middle of the night because of her pain and bad dreams about her rape at least twice a week. She claimed that she relives her rape every day. She did not have a history of hallucinations, homicidal and suicidal thoughts, or drug or alcohol abuse. She was appropriately dressed. She was adequately groomed. She did not exhibit unusual motor activity. Her speech was unremarkable with no flight of ideas or looseness of associations. Her mood was depressed and anxious, as was affect. She denied hallucinations; expressed no clearly identifiable delusions; denied homicidal or suicidal thoughts; and was precisely oriented to person, place, situation and time. Her remote, recent, and immediate recall was good. Her abstracting ability was adequate and her insight was fair. She was diagnosed with PTSD. A December 1997 VA examination report indicated that the veteran was a senior in college and not employed. She was well groomed. Her interpersonal manner was polite and cooperative and she appeared to be alert throughout the interview and testing. Her affect was labile; ranging from pleasant to depressed and agitated to angry. While describing her traumatic event she became tearful. She reported a four-year history of significant depression and anxiety, which she attributed to her traumatic experience. She reported that she avoided relationships with men. She had been celibate for three years. She felt hatred toward men. She reported that her rape has caused her difficulty in trusting people. She is socially withdrawn. She reported that she is excessively tearful, frequently irritable, and has significant difficulty concentrating. The veteran was administered a psychological test, in which her score indicated the presence of severe depressive symptoms. An examination of critical items indicated that she had feelings of unbearable sadness, hopelessness about the future, a complete loss of interest in sex, she cries all of the time, and has to push very hard to do anything. Another test indicated that she was experiencing mild elevation in trait anxiety. An examination of critical items indicated that she sometimes felt that she was about to go to pieces. She indicated that she gets mad easily. She had more difficulty concentrating than others seem to have. She had chronic PTSD with a global assessment of functioning score (GAF) of 55. Her mood disturbance was directly related to her trauma and probably did not merit a separate mood disorder diagnosis. Her daily functioning, depression, and anxiety resulted in social isolation which presented a mild to moderate challenge to normal functioning; her symptoms have caused mild to moderate deficits in social functioning and academic functioning. She was referred for individual psychotherapy for treatment for PTSD. The record contained lay statements from two of her friends that indicated that her psychological well being had decreased after her service. The veteran had a December 1997 hearing in which she testified that she was not presently attending a treatment program for her PTSD. She also testified that the instructor for one of her courses reminded her of her rapist; consequently, she was failing the class. She also testified that she treated her sons different than her daughter. VA medical records from October 1998 to February 1999 indicated that the veteran had depressed mood with crying spells, decreased sleep, decreased energy, feelings of hopelessness/worthiness, and increased irritation. The veteran reported drinking 3-4 glasses of wine daily. A March 1999 VA examination report indicated that she was very depressed all the time, socially withdrawn because of all the memories of the rape that happened in 1985. She ruminated about the incident daily, avoided movies that dealt with that subject, and avoided crowds of people. She denied that she had any intent to kill anyone. She dreamed of her rape nightly. She denied hallucinations, suicidal thoughts, or drug abuse. She admitted to a remote history of homicidal thoughts, but denied attempts to harm others and denied recent thoughts of homicide. She reported abusing alcohol and suffering from middle insomnia. Upon examination she was adequately groomed, and exhibited no unusual motor activities. Her speech was spontaneous and fluent with no flight of ideas or looseness of association. Her mood was depressed and, when discussing trauma, angry. Her affect was consistent with mood. She denied hallucinations and expressed no identifiable delusions. She was precisely oriented to person, place, situation, and time. She would not cooperate fully for formal memory testing, but she exhibited no obvious impairment of remote, recent or immediate recall. She was estimated to be of average intelligence. Her judgment to avoid common danger was good. Her abstracting ability was adequate. Her insight was fair. She had PTSD and a GAF score of 65. In applying the rating criteria of the next higher, 50 percent, rating to the veteran's symptoms, the Board finds that the veteran's PTSD condition does not warrant an increased rating. In reviewing the report from the March 1999 PTSD examination, the Board finds that the veteran does not show evidence of 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; or impaired judgment or impaired abstract thinking. The evidence does show that she had depressed mood and was socially withdrawn. Additionally, the Board finds that the veteran's social withdrawal has made it difficult to establish and maintain social relationships. However, there is no objective evidence that her PTSD affects her social and industrial functioning to such an extent as to support a higher evaluation. The Board acknowledges that the March 1999 VA examiner rated the veteran's PTSD as a 65 on the GAF scale, for some mild symptoms or some difficulty in social and occupational functioning. Based on the above evidence, the Board does not find that the criteria for a 50 percent rating have been satisfied. Rather, the Board finds that the veteran's PTSD condition more nearly approximates the criteria for a 30 percent rating. The record shows evidence of depressed mood, anxiety, suspiciousness, less frequent panic attacks, and chronic sleep impairment. Although the veteran has shown signs of occupational and social impairment, his general functioning, routine daily behavior, and self-care and conversation appear normal. For these reasons, the Board finds the 30 percent rating appropriate. The Board has also considered whether the assignment of a disability rating higher than 50 percent is appropriate. The veteran also does not meet the criteria for the next higher rating, 70 percent. Under the 70 percent criteria for mental disorders, the veteran would have to show such symptoms as suicidal ideation, obsessional rituals, and illogical or obscure speech, near continuous panic depression, spatial disorientation, and neglect of personal hygiene and appearance. The evidence shows that the veteran does not presently display those symptoms. Likewise, the Board concludes that the veteran does not meet the criteria for the next higher rating, 100 percent. Under the 100 percent criteria for mental disorders, the veteran would have to show such symptoms as gross impairment in thought processes or communication, persistent delusions or hallucinations, and intermittent inability to perform basic minimal hygiene. The evidence shows that the veteran has not displayed these symptoms. The Board has considered whether a "staged" rating is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The record, however, does not support assigning different percentage disability ratings during the period in question. The 30 percent disability rating according to the Schedule does not preclude the Board from granting a higher rating for this disability. In exceptional cases where schedular evaluations are found to be inadequate, consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service connected disability" is made. 38 C.F.R. § 3.321 (b)(1) (1999). The Board must find 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 Schedule. Id. The Board first notes that the schedular evaluations in this case are not inadequate. Higher ratings - up to 100 percent - - are assignable when symptoms of mental disorder cause more social and industrial impairment, but the medical evidence reflects that those manifestations are not present in this case. Second, the Board finds no evidence of an exceptional disability picture in this case. The veteran has not required hospitalization for her PTSD, and her PTSD has not had such an unusual impact on her employment as to render impractical the application of regular schedular standards. There is no evidence that the impairment resulting from PTSD warrants extra-schedular consideration. Rather, for the reasons noted above, the Board concludes that the impairment resulting from PTSD is adequately compensated by the 30 percent schedular evaluation. Therefore, extraschedular consideration under 38 C.F.R. § 3.321(b) is not warranted. ORDER A higher rating for PTSD is denied. MARY GALLAGHER Member, Board of Veterans' Appeals