Citation Nr: 0002959 Decision Date: 03/28/00 Archive Date: 09/08/00 DOCKET NO. 97-23 769A DATE MAR 28, 2000 On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama ORDER The following corrections are made in a decision issued by the Board in this case on February 7, 2000: On line 26, page 10, "20 percent" is corrected to read "30 percent." On line 2, page 11, "20 percent" is corrected to read "30 percent". SANDRA L. SMITH Acting Member, Board of Veterans' Appeals Citation Nr: 0002959 Decision Date: 02/07/00 Archive Date: 02/10/00 DOCKET NO. 97-23 769A) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by:The American Legion WITNESSES AT HEARING ON APPEAL Appellant, his wife and sisters INTRODUCTION The veteran served on active duty from February 1969 to September 1970, to include a tour of duty in the republic of Vietnam. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an April 1997 rating decision of the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA), that denied the veteran's claim for service connection for chronic dermatitis due to exposure to herbicides, and also awarded service connection for PTSD with an initial rating of 10 percent disabling. The issue of entitlement to a higher disability evaluation for the veteran's serviceconnected PTSD was remanded to the RO in July 1999, for further consideration in accordance with Fenderson v. West, 12 Vet. App. 119 (1999). The action was accomplished and this issue is now ready for appellate review. FINDINGS OF FACT The veteran's service-connected PTSD is currently manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as depressed mood, anxiety, and chronic sleep impairment, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation; or by definite social and industrial impairment. CONCLUSION OF LAW The criteria for the assignment of a 30 percent rating, but no higher, for PTSD have been satisfied. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.31, 4.130, Diagnostic Codes 9411-9400 (1994-1996) 9411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim for a higher rating is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). That is, he has presented a claim which is plausible. VA has a duty to assist the appellant to develop facts in support of a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet. App. 78 (1990). All necessary development was performed. The veteran underwent VA examination, and has asserted that there are no relevant VA treatment records. He has not asserted and there is nothing in the record that shows that there are missing, relevant records. For these reasons, the Board finds that VA's duty to assist the appellant, 38 U.S.C.A. § 5107(a) (West 1991), has been discharged. Furthermore, the undersigned finds that this case has been adequately developed for appellate purposes. A disposition on the merits is now in order. In evaluating the appellant's request for a higher rating, the Board considers the medical evidence of record. The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1999). In so doing, it is the Board's responsibility to weigh the evidence before it. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In evaluating service-connected disabilities, the Board looks to functional impairment. The Board attempts to determine the extent to which a service-connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.2, 4.10 (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). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 1991). A review of the evidence of record shows that the veteran served on active duty from February 1969 to September 1970, which included a tour of duty in the Republic of Vietnam. The RO initially denied the veteran's claim for service connection for a psychiatric disorder in July 1982; and specifically for PTSD by rating decision dated November 1987, which was confirmed by the Board in a decision dated February 1989. In August 1996, the veteran submitted a request to reopen his claim for service connection for PTSD. Review of private medical records, dated 1982 to 1995, revealed no evidence of complaint or treatment of a psychiatric disorder, to include PTSD. Report of VA psychiatric examination conducted in March 1997, indicated that the veteran related some of his traumatic combat experiences while in the Republic of Vietnam. Since service he had consistently been employed, primarily as an assemblyman building utility trucks. He was currently married to his second wife since 1992. His only spontaneous complaint was poor sleep interrupted mostly by nightmares. Further questioning revealed that he also experiences current symptoms of avoidance, startle response, fidgeting, and anxiety. The examiner found that he had symptoms of intrusive memories and repetitious dreams of traumatic events of combat. He exhibited avoidance behavior, was hypervigilant and had increased startle response. He had acted out significantly during flashbacks and as a consequence of his vivid dreams. However, it was also noted that his thoughts were clear and goal directed and his affect was appropriate. He was oriented, alert and pleasant during the interview. The final diagnosis was: PTSD, chronic, slightly industrially impaired and slightly socially impaired. He was assigned a score of 65 on the Global Assessment of Functioning Scale, which is representative of some mild symptoms or some difficulty in social, occupational or school functioning but generally functioning pretty well, with some meaningful interpersonal relationships. By rating decision dated April 1997, the RO awarded service connection for PTSD and assigned a 10 percent disability evaluation. The veteran in written statements and testimony presented at a personal hearing conducted at the RO before a hearing officer in September 1997, has consistently contended that his PTSD warrants a higher disability evaluation than the assigned 10 percent rating. At the September 1997 hearing, the veteran indicated he was taking medication prescribed by his private physician, Dr. Mitchell, and which helped his nightmares considerably. Dr. Mitchell was a general practitioner, not a psychiatrist. He had never received any counseling or other psychiatric treatment for his PTSD. He was currently temporarily "laid off", but when working he got along okay with his fellow workers. He told them that he did not engage in horseplay or kidding around, and they left him alone. He had three sons from his first marriage that ended in the late 1970's. Currently he was married to a lady with five children aged 9 to 16 and they all got along well. The veteran's wife and sisters also testified at the personal hearing in September 1997. The wife indicated that although they had been married since April 1992, the longest they had lived together was approximately 12 months. They had physically separated several times due to his behavior. He was very suspicious, "jumpy", and would "blow up" over little things. Once they had separated due to him hitting her daughter. Since their marriage, he had been employed at probably five or six different companies. She knew that he lost one particular job because of his temper. She believed he had become more violent since she had known him. He still had horrible nightmares. Sometimes he ran out the door in the middle of the night completely naked or in just his underwear. He was currently taking Ativan, 1 mg, at night, which helped him sleep through the night. Since he had been on the medication, his behavior was a little better. The veteran's two sisters also testified that they believed the veteran's condition was gradually worsening. Each had observed instances of violent temper as well as bizarre behavior. Although he was a little calmer with his current medication, he had not really improved. Legal Analysis Initially, the Board notes that the pertinent regulations governing evaluations for mental disorders were recently amended, effective November 1996. The United States Court of Veterans Appeals (hereinafter Court) has stated that where the law or regulation changes during the pendency of a case, the version most favorable to the veteran will generally be applied. See West v. Brown, 7 Vet. App. 70, 76 (1994); Hayes v. Brown, 5 Vet. App. 60, 66-67 (1993); Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). A recent opinion of the VA Office of the General Counsel held that whether the amended mental disorders regulations are more beneficial to claimants than the prior provisions should be determined on a case by case basis. VA O.G.C. Prec. 11-97 (Mar. 25, 1997). The veteran's psychiatric disorder is currently rated as 10 percent disabling under Diagnostic Code 9411 for PTSD. Prior to November 1996, the criteria for 10, 30, 50, 70, and 100 percent ratings for PTSD were as follows: Less than criteria for the 30 percent, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment. [10 percent] Definite impairment in the ability to establish or maintain effective and wholesome relationships with people. The psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. [30 percent] Ability to establish or maintain effective or favorable relationships with people is considerable impaired. By reason of psychoneurotic symptoms the reliability, flexibility, and efficiency levels are so reduced as to result in considerable industrial impairment. [50 percent] Ability to establish or maintain effective or favorable relationships with people is severely impaired. The psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. [70 percent] The attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. 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. Demonstrably unable to obtain or retain employment. [100 percent] 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). PTSD is now rated under the "General Rating Formula for Mental Disorders," Diagnostic Code 9411. 38 C.F.R. § 4.130 (1999). As amended, the regulation reads: 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. [10 percent] 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). [30 percent] 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. [50 percent] 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); inability to establish and maintain effective relationships. [70 percent] 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 names of close relatives, own occupation, or own name. [100 percent] 38 C.F.R. § 4.130, Diagnostic Code 9440 (1998). In addition, other related regulations were amended in November 1996. According to the amended rating criteria, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a) (1999). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b) (19998). The Board finds based upon application of the old and amended regulations, that the veteran is entitled to an increased evaluation of 30 percent, but no higher for his service- connected PTSD. The most recent VA PTSD examination report concluded that the veteran had PTSD with mild social and occupation impairment. However, this assessment was based solely on the examiner's one interview of the veteran. In light of the credible testimony of his wife and sisters as to their longitudinal observations of the veteran's behavior and moods, the Board believes that the severity of the veteran's actual symptoms "more nearly approximates" the criteria for a 30 percent rating under either the old or new Diagnostic Code 9411. 38 C.F.R. § 4.7 (1999). See summary of testimony set forth above. Although it could be argued that his recent work record is more indicative of occupational and social impairment with reduced reliability and productivity, so as to warrant the assignment of a 50 percent rating, the general rating formula states that this would be 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Only disturbances of motivation and mood are reported. The presence of the other enumerated symptoms are not contended or shown. Rather, the veteran has goal- directed thought processes, no apparent impairment of cognitive functioning or memory, and testified that he does not have a difficulty getting along with people per se, although he isolates himself at times. Thus, the Board concludes that the veteran's symptoms of PTSD more nearly approximate the criteria for the 30 percent rating, and no higher. The symptoms appear to produce a moderate amount of industrial impairment, as shown by the veteran's frequent job changes and terminations. Nonetheless, as both the veteran and his lay witnesses have indicated, the veteran has maintained his family relationships. When considering the totality of his symptoms - on the one hand, no impairment of grooming, memory, cognitive function, etc., and on the other hand recurring nightmares and resultant sleep disturbance, anxiety, and mood disturbances, etc. - the Board concludes that not more than definite social and industrial impairment have been shown. For the reasons discussed above, the evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). In this case, the RO granted service connection and originally assigned a 10 percent evaluation for PTSD as of the date that the veteran's claim was received, August 29, 1996, which has been confirmed and continued to the present time. See 38 C.F.R. §3.400 (1999). The Board has reviewed all the evidence dating from the time of the reopened claim and has determined that at no time from that time to the present has the evidence supported a rating in excess of 20 percent for the veteran's service-connected PTSD. Id.; Fenderson v. West, 12 Vet. App. 119 (1999). ORDER A 20 percent rating, but no higher, for PTSD is granted. SANDRA L. SMITH Acting Member, Board of Veterans' Appeals