Citation Nr: 0005809 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 98-01 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to a disability rating greater than 30 percent prior to May 9, 1998 for post-traumatic stress disorder (PTSD). 2. Entitlement to a disability rating greater than 50 percent as of May 9, 1998 for PTSD. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant, Appellant's Wife ATTORNEY FOR THE BOARD V. Marletta, Associate Counsel INTRODUCTION The veteran served on active duty from January 1968 to November 1970. In January 1997 the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA) continued a 30 percent rating effective from the date of service connection and assigned a 50 percent rating from May 9, 1998. FINDINGS OF FACT 1. Prior to May 9, 1998, the evidence shows that the veteran is considerably impaired in his ability to establish or maintain effective or favorable relationships with people and that, because of psychoneurotic symptoms, his reliability, efficiency, and flexibility levels are so reduced as to result in considerable industrial impairment. 2. Prior to May 9, 1998, there is no evidence of severe occupational impairment due to PTSD. 3. Prior to May 9, 1998, there is no evidence of PTSD- related occupational 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 work-like setting); and an inability to establish and maintain effective relationships. 4. As of May 9, 1998, the evidence shows the veteran sustains deficiencies in work, family relations and mood due to such symptoms as suicidal ideation; 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); difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. 5. As of May 9, 1998, the evidence does not establish total occupational and social impairment. 6. As of May 9, 1998, the evidence does not establish totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities. CONCLUSIONS OF LAW 1. Prior to May 9, 1998, the schedular criteria for a 50 percent evaluation for PTSD are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.130, Diagnostic Code 9411 (1996). 2. As of May 9, 1998, the schedular criteria for a 70 percent evaluation for PTSD 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 CONCLUSIONS Factual Background The veteran's claims file indicates that he was first diagnosed with PTSD in May 1993 while undergoing treatment for alcohol dependence in a North Little Rock VA Medical Center (VAMC). A September 1993 compensation and pension (C&P) psychiatric examination report prepared by Dr. Doolos confirms the previous findings, shows a diagnosis of "[p]ost-traumatic stress disorder, [c]hronic, [d]elayed" and comments therein as follows: "This man has ample stressors although it was difficult to get him to talk about them today and has ample symptomatology to make the diagnosis of post-traumatic stress disorder." The September 1993 C&P psychiatric examination report notes the following relevant observations regarding the veteran's employment history and PTSD symptomatology: "Employment history shows that before the service, he did welding. After he got out of the service, he did welding an he was building boats in Arkadelphia. The plant shut down after he had been there 7 years. He later went to another boat company at Benton, Arkansas and worked there nine months and he lost work May, 1993. Then he was in the hospital and in the Alcohol Program first. He said his joints swelled and he could not work after that. The back was giving him too much trouble to go back to work. "He spends his time lying on a heating pad most of the time and it tends to help his back. He does some work around the house and he does some laundry and things of that nature, things that he can do. Socialization is not much. It hurts him to ride much and coming [to North Little Rock] bothered him. He said he may socialize by going to his sister's one or two times a month. She has a pool and he likes to stay in it as it tends to help his back. Crowds bother him a great deal. He does not like them. He likes more seclusion. In a restaurant, he will sit anywhere but does not want a crowd there, especially if it is loud. "He said he hears some voices but he was vague and he says sometimes he talks back to them. Sometimes these voices scold him, telling him things he should have done or things he should not have done. It was difficult to feel that these were hallucinations, however. He does have some delusional material. He has the feeling that people are after him. This comes and goes and it is usually when he is hearing voices and he added 'I am paranoid as hell.' He thinks either God or the devil is out to get him. "Orientals bother him. He does not like them. He said if one came in the room he would try to control himself and feels he could. War movies he does not watch. He does not like anything bloody or gory. Things he avoids because it reminds him of Vietnam are war movies, Orientals, helicopters, and he says when he hears a helicopter, he is in Vietnam and talking about Vietnam he tries to avoid. He feels guilty about some of the things they did in Vietnam and feels now he should not have done them. He has some survivor guilt. He has a few close friends, he says. He tries not to get too close to anyone. He has some intrusive thoughts and he said this is when he used to drink to get rid of them and forget them but it made things worse. Now, he tries to get on another subject or visit someone or do something like that. "Mood shows that he stays depressed and the future looks dim to him. He says he has had crying spells in that he has broken down a few times but hates to have them and he cries because of the things he is talking about. Thought processes were normal. His memory was fair in the interview. He says it is pretty good. He was well oriented in time, place, and person but he says he forgets about some things when he is thinking hard. He was quite alert. There was some question as to whether he had hallucinations. I felt it was not at this time. He has some delusional material however, in that he thinks somebody is after him but I found no schizophrenic thinking as such. He has depression and he also has anxiety. He has thought about suicide but apparently made no attempts. He has thought about homicide, he made no plans. He said the only time he thinks about homicide is where something happens and he wants to do it right then. It goes away, however." The veteran was granted service connection for PTSD in a May 1994 rating decision that assigned a 30 percent disability rating effective May 1993, the date of the veteran's original claim, "based on the post-traumatic stress disorder causing definite social and industrial impairment." The veteran then asked for a re-evaluation in a September 1994 VA Form 21-4138 (Statement in Support of Claim), submitting therewith additional medical records from Dr. McDonald and VAMC. Dr. McDonald's examination report, dated December 1993, indicates a diagnosis of "probable PTSD" and includes the following assessment: "[The veteran] is a 45 year old, white, long married, currently unemployed or restricted welder and Vietnam Vet who presented somatic complaints and a history as well of hospitalization last spring at the VA for psychiatric care and detox. He described, upon inquiry, symptoms of chronic depression and of probable PTSD. (He was extremely avoidant of talking even generally about the content of his cognitive re- experiencing (dreams, intrusive memories, etc.) due to the 'pain, guilt' which he feels about it because his 'buddies were involved'). His chronic depression and his alcohol abuse or self-medication had been progressing, and he had an uncontrolled assaultive outburst toward an acquaintance prior to his VA hospitalization. He attributed though his being unable to 'function' on the job primarily to his physical problems (i.e. 'trouble walking, couldn't lift,' etc.). While he had been able to function adequately, objectively speaking, from a cognitive and emotional standpoint, he had difficulty with the drive to work." The RO continued the veteran's PTSD disability rating at 30 percent in a June 1995 rating decision. That decision became final, as the veteran did not indicate another preference for an increased rating until October 1996, when he filed a Statement in Support of Claim. To support this latest increased rating request, the veteran referenced the medical records from his October 1994 through October 1996 therapy sessions with Dr. McDonald. In the last of these therapy session reports dated October 1996, Dr. McDonald assesses the veteran's progress in relevant part as follows: "His PTSD [symptomatology] has been waxing or has been exacerbated apparently in the face of prolonged stress (e.g. Financial pressures, conflict with family over care and treatment of his ill and elderly mother; his wife's work adjustment problems, physical and emotional problems, etc.) but it is hard to gauge the severity of his symptoms and the disruptiveness of them because he does not like to talk about what he is experiencing when presumably he is trying to suppress. He relates though as usual. His lifestyle remains about the same as far as I can see." Additionally, the veteran submitted to another C&P psychiatric examination in October 1996, the report of which (written by Dr. Doolos) indicates in relevant part as follows: "He walks with a cane. Has some trouble walking. He is underactive, quiet and tense. He complains he stays sore all the time. He has headaches and problems sleeping at night because of nightmares and thinking about Vietnam much of the time... Before the service the patient did welding. After he got out of the service he did welding and worked in several ship yards, mentioning a boat company in Arkadelphia. He worked there four or five years until it was shut down. He worked in Pine Bluff in the 1970's and then went to work for a company in Benton, welding, doing this for nine months. He last worked in May of 1993. He has trouble with alcohol and pain with his joints swelling... This man gives symptoms and stressors in order to make the diagnosis of post traumatic stress disorder and also has symptoms of major depression. He has not improved since I saw him before, in fact, he has gotten worse. I saw him in 19[9]3." Based on the evidence contained in Dr. McDonald's therapy records and on the October 1996 C&P psychiatric examination records, the RO continued the veteran's disability rating at 30 percent in a January 1997 rating decision. The veteran effectively indicated disagreement with regard to the RO's January 1997 rating decision via a Statement in Support of Claim filed in October 1997. Following the issuance of a Statement of the Case in December 1997, the veteran perfected his appeal to the Board in a VA Form 9 filed in January 1998. The RO issued a Supplementary Statement of the Case (SSOC) in April 1998 that again continued the veteran's disability rating at 30 percent. In response thereto, the veteran's wife (on behalf of the veteran) noted the following in a May 1998 Statement in Support of Claim: "His symptoms have become more intense and other symptoms have become more evident, causing greater problems and hardship. He has panic/anxiety attacks almost daily, sometimes several times daily. He has become reclusive, rarely leaves home, refuses to answer the phone. He avoids people, does not want to associate with anyone, including family and friends. He has few friends and they are almost all Vietnam vets. He never wants to go anywhere. He is very uncomfortable anywhere except home or around more than 3 or 4 people. He is distrustful and suspicious of everything and everyone. There is no social life. He is more depressed, staring into space, crying much more often for longer periods. He sleeps less. Flashbacks, nightsweats, nightmares are much worse. He is much easier to anger and more prone to violence..." At a hearing before the RO in October 1998, the veteran, when asked about his prior employment experience, indicated that he had difficulty relating to co-workers and to some of his supervisors. Transcript of Hearing at p. 1 (Transcript). He further noted that he understood the expectations placed upon him by supervisors but failed to complete assigned tasks several times. Transcript at 2. In response to the question "Is your PTSD your primary reason that you're unemployed?" the veteran answered, "I would suppose so." Transcript at 2. A November 1998 C&P psychiatric examination report affirms the veteran's symptomatology, indicates a diagnosis of chronic post traumatic stress disorder and shows a score of 50 on the Global Assessment of Functioning (GAF) scale. The January 1999 C&P psychiatric examination report (compiled by Dr. Doolos) states, "He last worked in 1993, and quit because he physically couldn't do it any more because of arthritis." This report further affirms the veteran's PTSD symptomatology and assigns a score of 45 on the GAF scale. Based on the veteran's testimony at hearing and the above two C&P examinations, the RO, in a January 1999 SOC, increased the veteran's disability rating to 50 percent, effective May 9, 1998. Because the effective date of this increase does not date back to October 1996 (the date of the veteran's latest claim for an increased rating), the time period between October 1996 and May 1998 remains in controversy as to the veteran's eligibility for a disability rating greater than 30 percent. Thus the Board will consider two issues in this decision: (1) the veteran's entitlement to a disability rating greater than 30 percent (prior to May 9, 1998); and (2) the veteran's entitlement to a disability rating greater than 50 percent (as of May 9, 1998). II. Legal Analysis The veteran has presented a well-grounded claim for an increased disability evaluation for his service-connected PTSD within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A claim that a condition has become more severe is well grounded where the condition was previously service connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. See Proscelle v. Derwinski, 2 Vet. App 629 (1992). The veteran has been accorded VA examinations and a personal hearing and his treatment records have been associated with the file. The Board is satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke v. Derwinski, 1 Vet. App. 90 (1990). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). The percentage ratings in the Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (1999). Moreover, each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (1999). 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 (1999). A. Entitlement to a disability rating greater than 30 percent (prior to May 9, 1998) Because the appellant's claim of entitlement to an increased rating for his PTSD was initiated before the rating criteria for evaluating mental disorders were changed on November 7, 1996, the Board will review the claim under both sets of criteria in order to accord him evaluation under the set of criteria that is more favorable to him. Karnas v. Derwinski, 1 Vet.App. 308 (1991). Under the criteria for rating mental disorders that became effective November 7, 1996 (new criteria), a 100 percent evaluation is assigned when PTSD results in 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. A 70 percent evaluation is assigned under the new criteria 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 unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. A 50 percent evaluation is assigned under the new criteria 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 evaluation is assigned under the new criteria for 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). 38 C.F.R. § 4.130, Diagnostic Code 9411, effective November 7, 1996. Under the criteria for rating mental disorders in affect prior to November 7, 1996 (old criteria), a 100 percent evaluation is assigned for PTSD when there are totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior; or when the attitudes of all contacts except the most intimate so adversely affected as to result in virtual isolation in the community; or when the veteran is demonstrably unable to obtain or retain employment. See Johnson v. Brown, 7 Vet.App. 95, 97-99 (1994). A 70 percent evaluation is assigned under the old criteria when the veteran's 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 50 percent evaluation is assigned under the old criteria when there is considerable impairment in the ability to establish or maintain effective or favorable relationships with people, and when, by reason of psychoneurotic symptoms, the reliability, efficiency, and flexibility levels are so reduced as to result in considerable industrial impairment. A 30 percent evaluation is assigned under the old criteria when 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, Diagnostic Code 9411, prior to November 7, 1996. In evaluating the veteran's claim for entitlement to a disability rating greater than 30 percent, the Board can only consider evidence submitted prior to May 9, 1998, the date of the veteran's wife's Statement in Support of Claim. The Board finds that under the old criteria, the veteran is eligible for a 50 percent evaluation for PTSD prior to May 9, 1998. The evidence shows that the veteran is considerably impaired in his ability to establish or maintain effective or favorable relationships with people and that, because of psychoneurotic symptoms, his reliability, efficiency, and flexibility levels are so reduced as to result in considerable industrial impairment. However, the evidence does not support a 70 percent disability rating prior to May 9, 1998 under either the old or new criteria. Under the old criteria, while the Board can infer "considerable industrial impairment" from the veteran's psychiatric records in granting a 50 percent evaluation, without specific evidence relating to the veteran's psychoneurotic symptoms and their effect on his unemployability due to PTSD, it cannot infer severe industrial impairment. Likewise, when evaluating the veteran's claim under the new criteria for a 70 percent disability rating, there is no evidence to connect his PTSD symptoms to any occupational impairment with deficiencies in most areas with obsessional rituals, illogical or obscure speech, near continuos panic or depression, spatial disorientation and neglect of personal appearance. In fact, the evidence shows that his memory was fair, his thought processes were normal, he was well oriented and that he had been able to function on the job from a cognitive and emotional standpoint. B. Entitlement to a disability rating greater than 50 percent (as of May 9, 1998) The Board finds that the veteran is eligible for a 70 percent evaluation for PTSD as of May 9, 1998 under both the new and old criteria. Using the new criteria, the evidence shows the veteran sustains deficiencies in work, family relations and mood due to such symptoms as suicidal ideation; 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); difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. Under the old criteria, the evidence shows that the veteran's 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. This finding is further supported by the veteran's most recent score of 45 on the GAF scale, the indications for which are set forth as follows: "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or moderate difficulty in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." However, the evidence does not support a 100 percent disability rating under either the new or old criteria. Under the new criteria, the evidence does not establish total occupational and social impairment due to the symptoms outlined above. Although the veteran has not worked since May 1993, it has not been shown that he is unemployable due specifically to PTSD. In fact, Dr. McDonald's December 1993 examination report indicates that the veteran attributed his inability to function at work to his physical disabilities. With regard to social impairment, although the veteran's ability to establish and maintain effective or favorable relationships with people is severely impaired, he does maintain ties with a few fellow Vietnam veterans and he is able to interact in group therapy sessions, actions not indicative of total social impairment. Neither does the evidence satisfy the 100 percent disability requirements for PTSD under the old criteria. There are not totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities. Each of the veteran's medical reports indicate he was coherent and able to think and articulate clearly. Further, the evidence shows that he has not demonstrated inappropriate behavior during his hearing before the RO, during psychiatric examinations or during his individual and group therapy sessions. Finally, the Board notes the assertions made by the veteran service representative (VSR) in the Informal Hearing Presentation, filed with the Board in November 1999. The VSR argues that Dr. Doolos' January 1999 C&P psychiatric examination report is incomplete because it fails to offer an opinion regarding the veteran's employability based on his PTSD. The VSR further argues that under the holding in Friscia v. Brown, 7 Vet. App. 294 (1994), the Board has a duty to supplement the record by obtaining an examination which includes an opinion regarding the effect the veteran's PTSD has on his ability to obtain employment. However, the Friscia case can be distinguished by the fact that it was decided in the context of a claim for a total disability rating based on individual unemployability and not as a claim for entitlement to an increased rating. Further, in Friscia, there was ample evidence showing the veteran's unemployability due specifically to PTSD, which is not the case here. While the veteran may at some future date obtain a medical opinion regarding the effect his PTSD has on his employability and, if favorable, submit it to the RO with a new claim for an increased rating, a remand at this point is not the proper vehicle for such action. ORDER A 50 percent evaluation is granted for PTSD prior to May 9, 1999, subject to the laws and regulations governing the award of monetary benefits. A 70 percent evaluation is granted for PTSD as of May 9, 1998, subject to the laws and regulations governing the award of monetary benefits. M. W. GREENSTREET Member, Board of Veterans' Appeals