Citation Nr: 0000480 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 95-00 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. McCormack, Associate Counsel INTRODUCTION The veteran had active military service from April 1965 to April 1967. This matter comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) Muskogee Regional Office (RO) July 1994 rating decision which granted service- connection for PTSD, and assigned it a 30 percent disability evaluation, effective May 3, 1994, the date of receipt of the claim therefor. This matter was previously before the Board in August 1996, at which time it was remanded for further development of the evidence. FINDINGS OF FACT 1. The veteran's service-connected PTSD is not shown to have been productive of considerable impairment of social and industrial adaptability. 2. His service-connected PTSD is manifested by nightmares and flashbacks, irritability, social withdrawal, hypervigilance, and a flattened affect and depressed mood; occupational and social impairment with reduced reliability and productivity is not demonstrated. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.132, (1996), 4.130 (1998), Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran has expressed disagreement with the 30 percent rating that the RO initially assigned his service-connected PTSD. He also contends that, as his PTSD has been productive of mood swings, nightmares, hypervigilance and relational and employment difficulties, it is now more disabling than the current 30 percent evaluation reflects. Thus, he maintains that a rating of at least 50 percent is warranted for his service-connected PTSD. As a preliminary matter, the Board finds that the veteran's claim for an increased evaluation for his service-connected PTSD is well grounded pursuant to 38 U.S.C.A. § 5107(a) as it is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In general, an allegation of increased disability is sufficient to establish a well- grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Here, the veteran's contention concerning the severity of his PTSD (within the competence of a lay party to report) is sufficient to well ground his claim. The Board finds that the facts relevant to the issue on appeal have been properly developed and that the obligation of VA to assist the veteran has been satisfied. The veteran's DD-214 shows that he served in Vietnam and that he was awarded the Combat Infantry Badge, the Purple Heart, the Vietnam Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, the Bronze Star Medal, the Vietnam Defense Campaign Medal and the Vietnam Counter Offensive Campaign Medal. In an October 1993 statement, a friend of the veteran reported that he had known the veteran since 1953. He maintained that the veteran had been depressed and subject to dramatic mood swings ever since his return from Vietnam. In a statement received in May 1994, the veteran's wife reported that the veteran had fits of rage and mood swings. She also reported that it was difficult to get the veteran to go places and that he preferred to stay home and watch television. She indicated that the veteran had sleeping difficulties and avoided watching war movies. She reported that the veteran was very protective of their family. In a statement received in May 1994, the veteran reported that he had nightmares about his experiences in Vietnam. He also reported that he sometimes thought about the smell of dead bodies and that foul odors upset his stomach. He indicated that he usually stayed at home and read or watched television. He reported that he frequently became upset with his wife and children. He indicated that he had few friends and that he was suspicious of people. He reported that he was depressed and that fireworks made him nervous. He also reported that he shouted at coworkers when they disagreed with his point of view. On VA psychiatric examination in June 1994, the veteran reported that he had nightmares and that he was high tempered, depressed and isolated. He also reported that he was overprotective of his family. He indicated that he was unable to work around anything that smelled foul without becoming nauseated. On mental status examination, the veteran was appropriately dressed and fully oriented. His judgment was good, his memory was intact and he was not suicidal or anxious. It was noted that he was competent to manage his own funds. The impression was PTSD which affected his day to day activity in a negative manner. At the February 1995 hearing, the veteran testified that he had nightmares. He also testified that he had a severe temper and that he did not get along with other people. He reported that he was terminated from his job in January 1994, and that his PTSD had contributed to this. He specifically asserted that he had not agreed with certain work related situations and that he had had conflicts with his supervisors and coworkers. He also maintained that his PTSD had prevented him from obtaining new employment as potential employers may have heard about his inability to relate to people. He reported that he had applied for several positions all over the country, but that he had been told that he did not fit the requirements for these positions. He asserted that, while he was officially terminated as part of an overall reduction in the workforce of his former employer, he was really terminated because he was strong willed. He indicated that he received treatment for his PTSD once every two weeks at a Vet Center. He reported that he had relational problems with the members of his family and that he was very protective of them. He indicated that he did not have many friends or acquaintances. On VA psychiatric examination in September 1996, the veteran reported that he had not worked since 1992 and that he had been laid off due to restructuring. He also reported that he avoided crowds and that he did not like to go out in public. He indicated that he tried to keep his family from entering situations which he thought were unsafe. He reported that, while he had few friends, he did go to the Vet Center and attended church. He indicated that he became nervous when family members did not return from errands at a designated time. He reported that he was hypervigilant and irritable. He also reported that he had nightmares and that he startled easily. He indicated that he avoided war movies and talking about Vietnam. On mental status examination, the veteran spoke quietly but did not exhibit any pressured speech. There were no indications of despondency, hallucinations or delusions. It was noted that he appeared to obsess about being in places which he thought were unsafe. He was well oriented and his judgment was overly cautious. The impression was PTSD. A Global Assessment of Functioning (GAF) score of 60 was assigned. The examiner commented that the veteran's PTSD was moderate because he avoided social contacts and felt unsafe in places where there were people. The examiner also commented that the veteran did have some contact with people because he attended church. It was noted that it was unclear whether the veteran's cautiousness had been the reason that he had been unable to obtain employment. On VA psychiatric examination in June 1998, the veteran reported that he had nightmares and flashbacks. He also reported that he was active in his church and that he had one or two friends. On mental status examination, the veteran's thought processes were good and his speech was goal directed. He was well oriented, his memory was intact and his attention and concentration were good. He did not exhibit any thought disorders or suicidal ideation. His mood was pretty good and his affect was euthymic except when he spoke about his Vietnam experiences. It was noted that the amount of time that he spent sleeping had decreased. The impression was PTSD. A GAF score of 60 was assigned. The examiner commented that the veteran continued to have PTSD symptoms which caused a moderate social and industrial impairment. It was noted that the veteran had been unable to obtain employment, but that he baby-sat his grandchildren. It was also noted that he had been married for 24 years, that he was active in his church and that he had one or two friends. On VA psychiatric examination in July 1998, it was noted that the veteran was reliable and competent. The veteran reported that he was short tempered and overly protective of his family. He also reported that he was a loner and that he could not stand foul smells. He indicated that he was hypervigilant, irritable and isolated. He reported that he had six friends and that he attended church every Sunday. He indicated that he spent most of his time watching television and baby sitting his four grandchildren. He reported that he slept from four to six hours a night and that he had nightmares about his Vietnam experiences. On mental status examination, the veteran was cleanly dressed and calm. His emotional tone did not increase when he talked about Vietnam. He related in a somewhat guarded and distant manner, but was coherent and goal directed. No thinking disorder was elicited. His mood was depressed and his affect was flattened. He was well oriented, his memory was intact and his insight was adequate. The impression was that the PTSD which had been previously diagnosed and rated as 30 percent was continued. A GAF score of 60 to 65 was assigned. The examiner commented that it did not appear that there had been any significant changes in the veteran's PTSD symptoms. It was noted that the veteran remained hypervigilant and somewhat socially isolated. It was also noted that he may have had intrusive thoughts which were not too disabling. In accordance with 38 C.F.R. §§ 4.1, 4.2 (1998) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the evidence of record pertaining to the history of the veteran's PTSD. The Board has found nothing in the historical record which would lead it to conclude that the evidence is not adequate for rating purposes, nor has the Board found any of the historical evidence in this case to be of sufficient significance to warrant a specific discussion herein. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1998). Separate diagnostic codes identify the various disabilities. When evaluating a disability, any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3 (1998). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (1998). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). A claim placed in appellate status by disagreement with the initial rating award and not yet ultimately resolved is an original claim, as opposed to a new claim for increase. See Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. In this case, the veteran indicated disagreement with the initial 30 percent rating that the RO has assigned his PTSD. Thus, the propriety of each rating assigned the veteran's service-connected PTSD since the date of his initial claim on May 3, 1994 through to the present is now before the Board. The schedular criteria for evaluation of psychiatric disabilities were changed effective November 7, 1996. The veteran's service-connected PTSD is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (1998) (previously codified at 38 C.F.R. § 4.132, Code 9411 (1996)). 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 veteran applies unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary does so. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Thus, the Board will evaluate the veteran's PTSD under both the old and new rating criteria to determine which version is the most favorable to the veteran. In the present case, the Board notes that the RO evaluated the veteran's claim under the old regulations in rendering its rating decision dated July 1994 and in assigning a 30 percent rating for the service-connected PTSD. In the September 1994 statement of the case, as well as the supplemental statement of the cases dated in January, February and July 1995, and November 1996, the RO referred to the regulations then in effect in evaluating the veteran's service-connected PTSD. However, the Board notes that the RO notified the veteran of the amended regulations in a supplemental statement of the case issued in January 1999. Accordingly, there is no prejudice to the veteran under Bernard v. Brown, 4 Vet. App. 384 (1993). Under the former criteria set forth under Diagnostic Code 9411, a 30 percent evaluation was assigned where there was definite impairment of social and industrial adaptability. A 50 percent evaluation was assigned upon a showing of considerable impairment of social and industrial adaptability. A 70 percent evaluation was warranted for severe impairment of social and industrial adaptability. A 100 percent evaluation was assigned where the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community and when there was 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, rendering the veteran demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132 (1996). Under the revised criteria of Diagnostic Code 9411, a 30 percent evaluation is assignable 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). A 50 percent evaluation is to be 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 70 percent evaluation 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 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. A 100 percent evaluation 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 names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130 (1998). In reviewing the medical evidence, the Board is of the opinion that an evaluation in excess of 30 percent is not warranted for the veteran's PTSD under the old schedular criteria. The medical evidence does not show that the veteran's PTSD has been productive of a considerable impairment of social and industrial adaptability. In particular, while the June 1994 VA examination report shows that his PTSD affected his daily activities, it also shows that his judgment and memory were normal and that he was competent to manage his own funds. In addition, the September 1996 and June 1998 VA psychiatric examination reports both show that the veteran's PTSD was classified as moderate by the VA examiners. Moreover, the most recent VA examination report shows that a VA examiner again classified the veteran's PTSD as moderate and specifically noted that that there had not been any significant changes in the veteran's PTSD symptoms. The Board is cognizant of the veteran's testimony regarding how his PTSD has been productive of employment and relational difficulties, however, the medical evidence establishes that it has been productive of a moderate rather than a considerable impairment of social and industrial adaptability. Thus, while the Board is sympathetic to the beliefs of the veteran, a rating in excess of 30 percent is not warranted for his PTSD under the old schedular criteria. The Board also finds that a rating in excess of 30 percent is unwarranted for the veteran's PTSD under the new, revised rating criteria. Specifically, while the evidence shows that the veteran has been unemployed since 1994, it does not show that his unemployed status has specifically been the result of his service-connected PTSD. The Board is aware that the veteran testified that his inability to relate to his supervisors and coworkers caused him to be terminated in 1994. However, the Board is also aware that he testified that he was officially terminated as part of an overall reduction in the workforce of his former employer. In addition, the Board finds that his contentions regarding how his inability to obtain new employment may be the result of potential employers having heard about his inability to relate well to other people is purely speculative. Moreover, at the time of the September 1996 VA psychiatric examination, the VA examiner specifically noted that it was unclear whether the veteran's cautiousness had hindered his ability to obtain employment. The Board also notes that, although the evidence shows that the veteran has had few friends and relational problems with his family, it also shows that he has been married for 24 years and that he has been active in his church. Other than a flattened affect as reported on the most recent VA examination, symptoms characteristic of reduced reliability and productivity such as panic attacks, memory impairment and impaired judgment have not been presented. Turning to the veteran's PTSD symptoms, the medical evidence does demonstrate that he has had mood disturbances and difficulties establishing and maintaining effective work and social relationships. However, the medical evidence does not demonstrate that his PTSD has been productive of circumstantial, circumlocutory or stereotyped speech, panic attacks which occur more than once a week, difficulty understanding complex commands, impaired judgment or impaired abstract thinking. Also, it was noted in July 1998 that the veteran was not receiving in- or outpatient treatment or taking medication for the service-connected psychiatric condition. Most recently, the VA examiner in July 1998 reported a Global Assessment of Functioning score of 60-65. The Global Assessment of Functioning is a scale reflecting the "'psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.'" Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994) (DSM-IV)). A 60-65 rating indicates moderate difficulty in social, occupational, or school functioning. Id. (emphasis added). Such a score is completely consistent with the 30 percent evaluation assigned under the old rating criteria, as no more than definite social and industrial impairment is shown. See VAOPGCPREC 9-93, 59 Fed. Reg. 4752 (1994). Thus, his PTSD symptoms are not so severe as to warrant an evaluation in excess of 30 percent under the revised rating criteria. The Board has considered all other potential applicable provisions of 38 C.F.R. Parts 3 and 4 (1998), whether or not they have been raised by the veteran, as required by Schafrath, 1 Vet. App. at 589. The Board has found no section that provides a basis upon which to assign a higher disability evaluation for the reasons discussed herein. The evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER An evaluation in excess of 30 percent for PTSD is denied. WAYNE M. BRAEUER Member, Board of Veterans' Appeals