Citation Nr: 0006957 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 97-17 101A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased evaluation in excess of 10 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Amanda Blackmon, Counsel INTRODUCTION The appellant served on active duty from June 1949 to February 1950, and from August 1950 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to a higher rating evaluation for the appellant's service-connected PTSD. The record reflects that the appellant filed a notice of disagreement with this rating decision in May 1997. In conjunction with this correspondence, the appellant requested a hearing before the RO. A statement of the case was thereafter issued to the appellant in May 1997. He perfected his appeal in this matter in June 1997. In the context of his substantive appeal, the appellant again requested a personal hearing at the RO in this matter. The record discloses that in July 1998, a hearing was scheduled in this matter, and notice of the scheduled hearing date was forwarded to the appellant at that time. In August 1998, however, the appellant canceled his hearing request. In November 1999, the RO confirmed and continued the assigned rating evaluation for the service- connected disability. FINDINGS OF FACT 1. All available, relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The appellant's PTSD is currently characterized by mild to moderate symptoms of depression, anxiety, sleep disturbance due to nightmares, exaggerated startle response, and flashbacks; and is productive of mild social and industrial impairment. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for post-traumatic stress disorder have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant's claim for an increased evaluation for his service-connected PTSD is well- grounded pursuant to 38 U.S.C.A. § 5107(a). This finding is predicated upon the evidentiary assertions by the appellant, and medical evidence of record documenting treatment for the claimed disability. Drosky v. Brown, 10 Vet. App. 251, 254 (1997) (citing Proscelle v. Derwinski, 2 Vet. App. 629 (1992)). The Board is also satisfied that all procurable data has been assembled for appellate review, and that the duty to assist as mandated by 38 U.S.C.A. § 5107 has been met. Service connection was established for PTSD in a rating decision dated in May 1985. The evidence reviewed in conjunction with this rating determination consisted of the service records and the reports of VA examination and outpatient treatment, dated from December 1983 to October 1984. These records reflect that following a VA psychiatric examination conducted of the appellant in October 1984, the resulting diagnosis was of PTSD. This examination report indicated that the appellant reported subjective complaints of sleep disturbance, impaired memory, depression, anger, and survival guilt. The appellant also reported a two year history of insomnia and nightmares. He indicated that the content of his dreams involved Vietnam. It was noted that the appellant described episodes in which he experienced outbursts of temper, for which he is unable to recall the episode or to identify the precipitating event. He reported that he also experienced flashbacks and startled response related to his Vietnam experiences. The appellant indicated that he socialized very little, and was being seen at the VA medical facility for treatment. It was the appellant's belief that treatment he received through the mental health clinic had been beneficial. The appellant reported a history of combat experience during the Korean Conflict, and during two tours of duty in Vietnam. On mental status examination, the appellant was observed to be well dressed, and pleasant, and appeared his stated age. The examiner noted that the appellant's posture was slumped, and that his face was expressionless during the course of the interview. The appellant exhibited no spontaneous verbalization. The examiner noted that the appellant required prodding to answer questions, and that his responses were short and nonproductive. There was no evidence of loose associations or flight of ideas. The appellant's mood was constricted, and he demonstrated a mixed mood of hostility and depression. The appellant was generally observed to be angry at no particular person or system. He did not verbalize any ideas of violence toward himself or others. The appellant reported pseudohallucinations, described as noises of trucks, talking, and yelling. The examiner evaluated the appellant as alert and oriented. His recent memory appeared to be without problems. Remote memory was evaluated to be impaired "only on the time frame of the Vietnam experience [but] not 100 percent." It was noted that his concept formation was 50 percent abstract and 50 percent concrete. His judgment was evaluated to be without any problems. The diagnostic impression was chronic PTSD (Axis I). Based upon the evidence described above, a 10 percent evaluation for PTSD was assigned effective from July 1984, and this evaluation has remained in effect since that time. Under 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. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Although the regulations do not give the past medical reports precedence over current findings, consideration is to be given to the applicability of a higher rating for the entire period in which the appeal has been pending. See Powell v. West, 13 Vet. App. 31, 34-35 (1999) (explaining the Court's decision in Francisco v. Brown, 7 Vet. App. 55 (1994)). PTSD is rated under 38 C.F.R., Part 4, Diagnostic Code 9411 (1996 & 1999). Effective November 7, 1996, the rating schedule for mental disorders was amended and redesignated as 38 C.F.R. § 4.130. 61 Fed.Reg. 52700 (1996). The evaluation criteria have substantially changed in the new rating schedule and now focus on the individual symptoms as manifested throughout the record, rather than on medical opinions characterizing overall social and industrial impairment as mild, definite, considerable, severe, or total. Under the criteria in effect prior November 7, 1996, a 10 percent evaluation for PTSD is warranted where a psychoneurotic disorder is manifested by less than the criteria for the 30 percent evaluation, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment. A 30 percent evaluation is warranted where there is definite impairment in the ability to establish or maintain effective and 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 (1996). In Hood v. Brown, 4 Vet. App. 301 (1993), the Court stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other terms were "quantitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate "reasons and bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a precedent opinion, dated November 9, 1993, the General Counsel of the VA concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more that moderate but less than rather large." See VAOPGCPREC 9-93 (VA O.G.C. Prec. 9-93), 59 Fed. Reg. 4753 (1994). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c) (West 1991). Under the criteria which became effective November 7, 1996, a 10 percent is warranted for PTSD where the disorder is manifested by 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 warranted where the disorder is manifested by 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). Regarding the question of whether the former or newly revised diagnostic criteria for PTSD apply to the appellant's case, the Board notes that where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant applies unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary does so. Marcoux v. Brown, 9 Vet. App. 289 (1996); Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991); see also VAOPGPREC 11-97 (O.G.C. Prec 11-97). Since the RO has received VA outpatient records pertaining to treatment of the appellant's service-connected PTSD as early as March 1996, the date of this VA record is to be considered the date of receipt of the claim for increase. 38 C.F.R. § 3.158(b) (1999). Thus, the appellant's service-connected PTSD must be evaluated under both the former and the newly revised rating criteria to determine which version is most favorable to him. The appellant filed a new claim for an increased rating evaluation for his service-connected PTSD condition in January 1997. He reported that he was in receipt of treatment for this condition at the VA medical facility. VA clinical records, dated from November 1995 to February 1997, were subsequently received. These treatment reports reflect that the appellant was seen at a VA mental health clinic in March 1996, at which time he reported no complaints and denied any major problems. It was noted that the appellant took medications every other night. He indicated that he experienced dryness of the mouth, but noted that he sleeps well with use of medication. The appellant indicated that he did not wish to change his medication. The appellant was continued on medication, and scheduled for follow-up evaluation in six months. When seen in September 1996, the appellant reported no complaints. He indicated that he was sleeping well with use of medication. The examiner noted that there was no evidence of decompensation. The appellant was continued on medication, and scheduled for further evaluation in six months. On evaluation later that month, the appellant requested an adjustment in medication. He was referred to the clinic for examination the following day, when he reported that he felt drowsy most of the day. He reported symptoms of anhedonia, and decreased energy. The examiner noted that the appellant's medication dosage would be decreased, and the appellant was started on another medication as well. Another clinical notation indicated that the appellant would likely benefit from incentive therapy. In correspondence, dated in June 1997, the appellant indicated that his Vietnam experience haunts him all the time. He reported daily nightmares and flashbacks, avoidance of crowds, and isolation. The appellant indicated that he was unable to watch television, and experienced bad memories and startled response. It was the appellant's belief that his symptomatology had increased in severity. More recently, during a VA examination conducted in October 1997, the appellant reported that he had been employed as a postal worker from 1972 until his retirement in 1996. The mental status evaluation revealed that the appellant was alert, and oriented in all spheres, and cooperative. He was evaluated as mildly to moderately depressed and anxious, and his affect was appropriate to his mood. Although the appellant reported difficulty with sleeping, and episodes of nightmares two to three times per week, he indicated that he is able to return to sleep; and he denied any significant disturbance in appetite. He admitted to occasional suicidal thoughts, but denied any intent or plan. He denied homicidal ideation or intent. His thought processes were goal directed, and his thought content was logical. It was noted that the appellant's wife of had recently passed away and that he retired from his job during the previous year. The appellant indicated that he occasionally sees friends, and attends church. He also reported participating in pool games with friends. He admitted to drinking occasionally, and reported that he has attempted to reduce his consumption. The appellant's ability to concentrate, recent memory, and remote memory were grossly intact. The appellant was able to recall three unrelated objects upon immediate recall, and was able to invert a word. He was also able to perform simple arithmetic tasks. It was noted that the appellant currently received psychiatric care at the VA medical facility. It was further noted that the appellant was taking prescribed antidepressant medication. The appellant was noted to have participated in the PTSD program and group therapy through VA, but discontinued his participation because he determined that this experience was not beneficial to him. It was noted that his current treatment plan was limited to outpatient clinical visits with a psychiatrist. The diagnostic impression was PTSD, mild to moderate (Axis I). According to the examiner, the appellant presented with symptoms of PTSD. It was noted that he was exposed to a traumatic stimulus, and that he experienced recurrent distressing dreams of the event. It was noted that the appellant also demonstrated efforts to avoid thoughts or feelings associated with the trauma, to avoid activities or situations that arouse recollections of trauma, and showed an inability to recall an important aspect of the trauma. It was noted that the appellant also presented with difficulty falling or staying asleep, irritability, and an exaggerated startle response. The examiner concluded that these symptoms resulted in mild to moderate impairment of the appellant's ability to function socially and occupationally, and entered a Global Assessment of Functioning (GAF) score of 65. A GAF score of 65 describes an individual with some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social or occupational functioning, but who is able to function generally well and has some meaningful interpersonal relationships. AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (3rd ed. 1987 & 4th ed. 1994) (DSM-III & DSM-IV); see also 38 C.F.R. §§ 4.125(1996), 4.130 (1999) (incorporating by reference the VA's adoption of DSM-III and DSM-IV for rating purposes). This score, combined with the diagnosis of mild to moderate PTSD in October 1997, indicates a psychiatric disorder which is productive of no more than mild social and industrial impairment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). As such, in the context of the range of rating criteria for mental disorders, the degree of impairment represented by "mild to moderate" is less than that contemplated by "definite." VA O.G.C. Prec. 9-93, slip op. at 4. Thus, even if there is some moderate degree of impairment associated with the appellant's PTSD, as indicated by the most recent examination report, this finding is insufficient for an evaluation in excess of the 10 percent rating under the criteria Diagnostic Code 9411 effective through November 6, 1996. In a similar manner, these same findings from the VA examinations and outpatient reports indicating a longstanding employment history with the postal service, a satisfactory relationship with his friends as well as his recently deceased spouse, and that he is taking medication to control his PTSD symptoms likewise do not warrant a rating greater than 10 percent disabling, under criteria of Diagnostic Code 9411 in effect since November 7, 1996. 38 C.F.R. § 4.130 (1999). Therefore, the Board determines that the appellant's service-connected PTSD warrants a 10 percent evaluation under both former and revised criteria. Accordingly, an increased evaluation is not warranted. In reaching the determination in this case, the Board recognizes that the RO has not addressed the question of whether a higher rating for the appellant's service-connected PTSD is warranted under the former rating criteria that was effective through November 6, 1996. Thus, the Board must consider whether the appellant has been given full notice and an opportunity to be heard, and if not, whether the appellant has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384, 393 (1993). As the evidence previously presented adequately spoke to both the former and revised criteria, and the Board's decision to continue the currently assigned 10 percent evaluation for the appellant's PTSD under both versions of the diagnostic criteria has not altered the ultimate outcome of his claim, the Board concludes that the veteran has not been prejudiced by its action. Id. at 394; Karnas, supra. ORDER An increased evaluation for post-traumatic stress disorder is denied. Deborah W. Singleton Member, Board of Veterans' Appeals