Citation Nr: 0007243 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 94-49 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased original disability rating for post-traumatic stress disorder (PTSD), currently evaluated as 70 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. L. Wight, Associate Counsel INTRODUCTION The veteran served on active duty from July 1967 to March 1969. This case comes before the Board of Veterans' Appeals (Board) by means of a December 1994 rating decision rendered by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA) wherein service connection for post- traumatic stress disorder was granted and a 10 percent disability evaluation was assigned. The veteran appealed the assignment of this disability rating. During the pendency of this appeal, the disability evaluation was increased to 70 percent disabling. As this is not a full grant of benefits sought on appeal, the claim remains open. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim for an increased disability rating has been developed. 2. The medical evidence shows that the veteran's PTSD results in total inability to establish and maintain effective occupational and social relationships. CONCLUSION OF LAW The criteria for an increased rating of 100 percent for PTSD are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. Part 4, § 4.130, Diagnostic Code 9411 (1996, 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim for entitlement to an increased disability rating for post- traumatic stress disorder is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); that is, he has presented a claim that is plausible. He has not alleged that there are any records of probative value that may be obtained which have not already been associated with his claims folder. The Board accordingly finds that the duty to assist the veteran, as mandated by 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999), has been satisfied. 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; 38 C.F.R. Part 4 (1999). The percentage ratings in the Schedule for Rating Disabilities 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). With respect to the veteran's PTSD, service connection was established by means of a December 1994 rating decision, which assigned a 10 percent disability rating effective May 5, 1994, the date of claim on appeal. The veteran appealed the assignment of this 10 percent disability rating. During the pendency of the veteran's appeal, a July 1994 rating action increased the disability evaluation of the veteran's PTSD to 70 percent disabling, effective May 5, 1995. As this is not a full grant of benefits sought on appeal, his claim remains open. The veteran contends that his post-traumatic stress disorder is more severe than currently evaluated, warranting an increased rating. After a review of the record, the Board finds that the veteran's contentions are supported by the evidence, and that an increased schedular rating of 100 percent is granted, subject to the laws and regulations governing the disbursement of monetary benefits. As stated previously, the severity of a disability is ascertained, for VA rating purposes, by application of the criteria set forth in VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1999) (Schedule). Post-traumatic stress disorder is evaluated using the General Formula for Rating Mental Disorders pursuant to Diagnostic Code 9411 of the Schedule. 38 C.F.R. § 4.130 (1999). Under those criteria, a rating of 100 percent is warranted where the evidence shows 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; or memory loss for names of close relatives, own occupation, or own name. A rating of 70 percent is warranted where the evidence shows 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); or inability to establish and maintain effective relationships. 38 C.F.R. § 4.130 (1999). The criteria for evaluation of mental disorders were amended during the pendency of the veteran's appeal, effective November 7, 1996. See 61 Fed. Reg. 52,700 (October 8, 1996). Pursuant to the criteria in effect prior to November 7, 1996, the General Formula for Rating Psychoneurotic Disorders provides that a 100 percent rating is warranted where the evidence shows that 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; or demonstrable inability to obtain or retain employment. A 70 percent rating is warranted where the evidence shows that the ability to establish and maintain effective or favorable relationships with people is severely impaired; or the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). The United States Court of Appeals for Veteran's Claims, formerly the United States Court of Veterans Appeals, (Court) has held that for the purpose of appeals, where the 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 veteran should be applied unless provided otherwise by statute. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). The veteran filed his claim for an increased rating in December 1993. As the regulations changed after his appeal was filed, the Board will evaluate the veteran's symptomatology pursuant to both the criteria in effect prior to November 7, 1996, and the criteria in effect subsequent to that date, to determine which may be more favorable to the veteran. The Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). After a review of the evidence, the Board finds that the criteria currently in effect are more favorable to the veteran. As set forth above, under the current criteria, a 100 percent disability rating is appropriate 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; or memory loss for names of close relatives, own occupation, or own name. The most recent VA PTSD examination was conducted in April 1998. The examination report indicates that the veteran's near continuous depression affects his ability to function appropriately and effectively. He has poor impulse control with severe social and occupational impairment due to his PTSD. The examiner found that the veteran was "unable to adapt to stressful circumstances due to his service-connected PTSD, and is totally unable to establish and maintain effective social and occupational relations due to his service-connected PTSD." As set forth above, the most recent medical evidence shows that the veteran's PTSD results in total occupational and social impairment. Accordingly, the Board finds that the criteria for entitlement to an increased schedular rating of 100 percent for post-traumatic stress disorder are met, and an increased schedular rating of 100 percent is granted, subject to the laws and regulations governing the disbursement of monetary benefits. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. Part 4, § 4.130, Diagnostic Code 9411 (1996, 1999). ORDER An increased schedular rating of 100 percent for post- traumatic stress disorder is granted, subject to the laws and regulations governing the disbursement of monetary benefits. MARK W. GREENSTREET Member, Board of Veterans' Appeals