Citation Nr: 0000983 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 98-05 354A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an evaluation in excess of 50 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Fogarty, Associate Counsel INTRODUCTION The veteran served on active duty from January 1942 to September 1945. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 1997 rating decision from the Department of Veterans Affairs (VA) Los Angeles, California Regional Office (RO), which denied entitlement to an increased evaluation for PTSD. The Board notes that in his April 1998 substantive appeal, the veteran requested a RO hearing. However, in a February 1999 letter, the veteran's representative stated that the veteran was withdrawing his request for a personal hearing. The Board also notes that in November 1997 notice of disagreement as to the April 1997 rating decision, the veteran also raised a new claim for entitlement to service connection for hearing loss and tinnitus. A review of the record reflects the RO has not addressed this claim. Therefore, the matter is referred to the RO for appropriate action. Finally, the Board notes that in May 1983, the veteran filed a claim for an increased evaluation for his anxiety neurosis. Based upon a review of the record, it appears that claim has not been addressed by the RO. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's PTSD has led to very substantial employment difficulty and has resulted in a high degree of social isolation. CONCLUSION OF LAW The criteria for an evaluation in excess of 100 percent for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (1999); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1995); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1989); 38 C.F.R. § 4.132, Diagnostic Code 9400 (1982). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran was a German prisoner of war from February 1944 until April 1945. Service personnel records reflect the veteran received numerous citations and awards including the Distinguished Flying Cross Medal and the Air Medal with 1st Silver Oak Leaf Cluster and 1st and 2nd Bronze Oak Leaf Clusters. In a February 1949 rating decision, the RO granted entitlement to service connection for an anxiety reaction, evaluated as 10 percent disabling, effective February 3, 1949. Upon VA examination dated in March 1952, the veteran reported periodically becoming morose and irritable for several days at a time. The veteran reported that his symptoms were annoying and uncomfortable but did not handicap him in his work. The veteran stated that he operated a fishing vessel, spending about 100 days at sea annually. The examiner noted the veteran was restless, mildly tense, and somewhat apprehensive. The veteran stammered from time to time during the examination. The examiner noted no disturbances in orientation, memory, general knowledge, or intelligence. No delusions or hallucinations were present, but the veteran did show obsessive compulsive features. Judgment was noted as good. The examiner noted the veteran showed adequate objective anxiety manifestations to correspond with the anxiety symptomatology which he reported. A diagnosis of an anxiety reaction was noted. Upon VA mental examination dated in April 1997, the physician noted that the veteran had participated in a prisoner of war group since 1983. The veteran reported that while on active duty, his plane was shot down over France. The veteran parachuted to the ground, injuring both of his legs. The veteran spent the next fourteen months as a German prisoner of war. The veteran reported that while a prisoner of war, he along with eight thousand others was transported on a barge that was only equipped to hold one thousand people. The veteran also reported experiencing allied raids nightly while a prisoner of war and having to march five kilometers from one camp to another while shackled to other prisoners. The veteran reported brutalities of the Germans toward the prisoners as well as a lack of food and water. The veteran reported experiencing nightmares every night for the first ten years after his discharge from service. The veteran stated that at that time he self-medicated himself with alcohol. The veteran reported that he currently consumed only a moderate amount of alcohol. The examiner noted the veteran's symptoms had continued throughout his adult life in varying intensity and consisted of occasional and unintentional obtrusive unpleasant memories while awake, usually when triggered by something that reminded him of war incidents. The veteran described an exaggerated startle response and was always on guard. The examiner noted that the veteran's work as an abalone diver indicated that he isolated himself socially. It was also noted that he avoided incidents such as watching war movies, he was irritable, and could not relate to authority. The veteran reported feeling depressed intermittently and often anxious and irritable. He denied any difficulty with concentration or memory. The veteran reported sleeping only four to five hours nightly. It was noted that the veteran did not believe that he could work for anyone. The veteran's thought processes were noted as logical, coherent, and goal- directed. The veteran was pleasant, cooperative, affable, and maintained good eye contact. The examiner noted the veteran did not appear depressed, but there was some anxiety as he discussed his war experiences. The veteran was neither suicidal nor homicidal. The examiner found no evidence of hallucinations, delusions, thought insertion, or thought projection. The veteran's general fund of information was noted as good and his operational judgment appeared intact. The examiner opined that there was little doubt in his mind that the veteran did suffer from chronic post traumatic stress disorder. Relevant diagnoses of mild to moderate PTSD and alcohol abuse in partial remission were noted. The examiner also opined that while the veteran could probably work, his fatigue due to poor sleep, irritability, emotional isolation, and distracting preoccupations would cause moderate difficulty in his capacity to work with full efficiency. In an April 1997 rating decision, the RO determined that a 30 percent evaluation was warranted for PTSD. It was noted that the veteran's evaluation was changed from anxiety neurosis to PTSD in order to encompass the new diagnosis. An undated VA social work evaluation reflects a detailed account of the veteran's prisoner of war experiences. It was noted that the veteran avoided crowded situations, movie theaters, sporting events, shopping malls, and parades. It was also noted that the veteran was no longer overtly hypervigilant and vulnerable largely because he had found ways to control his environment through avoidance and isolation. The report notes that the veteran went hungry as a prisoner of war and was also without shoes, and that he currently kept large amounts of food on hand and had many pairs of shoes. It was noted that the veteran tried to stay busy, but when depressed he became morose and withdrawn. Upon VA prisoner of war examination dated in December 1998, the veteran reported that he had continued to have bad dreams, startle response, depression, association recollection, and intrusive recollection of memories related to his plane mission and captivity. It was noted that he reported being able to "manage" with the support of his therapist and group therapy. The veteran also reported that his anxiety and depression had gradually become worse over time. The examiner noted the veteran was cooperative and talkative with no formal thought disorder and no impediment. The veteran's mood was noted as depressed and his affect was related with normal intensity. The examiner noted no delusions or hallucinations. Feelings of hopelessness and suicidal thoughts were also noted. Insight and judgment were noted as good and his memory was noted as grossly intact. Relevant diagnoses of PTSD and alcohol abuse in remission were noted. The examiner noted the veteran had reduced motivation, that his relationships with others were seriously impaired and he had no effective relationships except with his immediate family. The examiner opined that the veteran's employability was seriously impaired due to his difficulty in dealing with others, and carrying on any tasks involving relating to others was seriously impaired because of the veteran's irritability, difficulty in dealing with authority, anger, depression, anxiety, and difficulty concentrating. It was also noted that the veteran did not have the ability to start or maintain a relationship with others. Upon VA joint examination dated in November 1998, the examiner noted that the veteran lived in a RV Mobile Park and continued to isolate himself from his neighbors. In a September 1999 supplemental statement of the case, the RO determined that a 50 percent evaluation was warranted for the veteran's PTSD. Pertinent Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4 (1999). The percentage ratings contained in the Rating Schedule represent, as far as can be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include 38 C.F.R. §§ 4.1 and 4.2 (1999) which require the evaluation of the complete medical history of the claimant's condition. These regulations operate to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet. App. at 593-94 (1991). 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2 (1999). PTSD is rated under the portion of the Schedule for Rating Disabilities that pertains to mental disorders. Prior to November 7, 1996, PTSD was rated under 38 C.F.R. § 4.132. Effective November 7, 1996, the rating schedule for mental disorders was amended and redesignated as 38 C.F.R. § 4.130. See 61 Fed. Reg. 52700 (Oct. 8, 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. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has held that where the law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the VA Secretary to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308 (1991). In light of the fact that the veteran filed his claim before November 7, 1996, the Board will evaluate his psychiatric disability in light of both the old and new criteria. Under the current rating criteria found in 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999), a 50 percent evaluation is warranted for PTSD manifested by 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; and difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). PTSD manifested by 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 inability to establish and maintain effective relationships, warrants a 70 percent evaluation. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). A 100 percent evaluation is warranted for PTSD with total occupational and social impairment, due to symptoms such as the following: 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). Under the former rating criteria for PTSD effective prior to November 7, 1996, 38 C.F.R. § 4.132, Diagnostic Code 9411 (1995), a 50 percent evaluation is assigned when the ability to establish or maintain effective or favorable relationships with people is considerably impaired, and by reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. A 70 percent rating is warranted when the 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 100 percent rating is warranted when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community, and 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, and demonstrable inability to obtain or retain employment. See 38 C.F.R. § 4.132, Diagnostic Code 9411 (1995). In light of the fact that the veteran arguably filed his claim for an increased evaluation in May 1983, the Board must also consider the regulations in effect in 1983 and any other changes prior to November 7, 1996. Effective April 18, 1980, the veteran's disability was rated under the general rating formula for psychoneurotic disorders. Pursuant to those criteria, a 50 percent evaluation is warranted where the veteran's ability to establish and maintain effective or favorable relationships with people is substantially impaired, and by reason of psychoneurotic symptoms the reliability, flexibility, and efficiency levels are so reduced as to result in severe industrial impairment. See 38 C.F.R. § 4.132, Diagnostic Code 9400 (1982). Where the ability to establish and maintain effective or favorable relationships with people is seriously impaired, and the psychoneurotic symptoms are of such severity and persistence that there is pronounced impairment in the ability to obtain or retain employment, a 70 percent evaluation is warranted. See 38 C.F.R. § 4.132, Diagnostic Code 9400 (1982). A 100 percent evaluation is warranted where the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community with totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as "phantasy," confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior, and demonstrable inability to obtain or retain employment. See 38 C.F.R. § 4.132, Diagnostic Code 9400 (1982). Additional changes in the regulations regarding mental disorders were made effective January 19, 1988. Pursuant to those changes, a 50 percent evaluation is warranted where the ability to establish or maintain effective or favorable relationships with people is considerably impaired, and by reason of psychoneurotic symptoms the reliability, flexibility, and efficiency levels are so reduced as to result in considerable industrial impairment. Where the 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 70 percent evaluation is warranted. See 38 C.F.R. § 4.132, Diagnostic Code 9411 (1989). Where the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community with 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 and demonstrable inability to retain employment, a 100 percent evaluation is warranted. See 38 C.F.R. § 4.132, Diagnostic Code 9411 (1989). Words such as "considerable" and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (1999). It should also be noted that use of terminology such as "mild" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. § 4.2, 4.6 (1999). 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" 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. The General Counsel concluded that the term "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 than moderate but less than large." VA O.G.C. Prec. Op. No. 9-93 (Nov. 9, 1993). The Board is bound by this interpretation of the word "definite." 38 U.S.C.A. § 7104(c) (West 1991). Employment is a factor that must be considered with regard to the evaluation of mental disorders. Prior to November 7, 1996, 38 C.F.R. § 4.130 provided that the severity of the disability was based upon actual symptomatology, as it affected social and industrial adaptability, and that two of the most important determinants of disability were time lost from gainful work and decrease in work efficiency. It was further provided that the rating board must not underevaluate the emotionally sick veteran with a good work record. 38 C.F.R. § 4.130 (effective prior to November 7, 1996). Analysis The psychiatric findings are not in total agreement. In April 1997, it was felt that the veteran could still work, albeit with diminished efficiency. By December 1998, impact of his psychiatric symptoms had rendered his employability considerably more problematic. Moreover, his ability to interact with others, which has been a common thread in the medical documentation, had not improved. Although the record is not without a measure of ambiguity, it appears that the veteran remains largely socially isolated and that most probably it is due to the effects of PTSD. There is a clear pattern of distancing himself from other people reflected in the relevant medical reports. In addition, it is at least arguable that PTSD has progressed to the point where it effectively precludes as a practical matter full-time employment. See Johnson v. Brown, 7 Vet. App. 95, 97 (1994). ORDER Entitlement to an evaluation in excess of 100 percent for PTSD is denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals