BVA9504829 DOCKET NO. 90-20 562 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an effective date prior to August 10, 1992 for the assignment of a 100 percent evaluation for the service-connected psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and E.L.W. ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from March 1967 until July 1970. This appeal comes before the Board of Veterans' Appeals (the Board) from rating determinations of the Detroit, Michigan Regional Office (RO). The case was remanded by decisions of the Board dated in December 1990 and August 1991 for additional development and is once again before the Board for appropriate disposition. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that he is entitled to a 100 percent disability evaluation prior to August 10, 1992 on account of the long-standing severity, and his inability to work because of his service-connected psychiatric disorder. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the assignment of an earlier effective date for a 100 percent disability rating for the service-connected psychiatric disorder from November 1, 1988. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The veteran was not virtually isolated and did not display totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities resulting in a profound retreat from mature behavior prior to August 10, 1992. 3. The veteran is reasonably shown to have been demonstrably unable to work from November 1, 1988. CONCLUSIONS OF LAW 1. Resolving the benefit of the doubt in favor of the veteran, the requirements for assignment of an effective date from November 1, 1988 for a 100 percent disability evaluation for the service-connected psychiatric disorder have been met. 38 U.S.C.A. § 1155, 5110, 5107 (West 1991); 38 C.F.R. § 3.400, 4.40, 4.71 and Part 4, Diagnostic Codes 9204, 9411 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim has been determined to be well-grounded within the meaning of 38 U.S.C.A. 5107(a). The Board is also 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). The service medical records reflect that the veteran was a self- referral for neuropsychiatric consultation in November 1969 after 'doing things I can't remember doing or why I did them.' It was noted that there had been noticeable deterioration in this job performance and that he was currently awaiting summary court- martial for crashing the main gate. He was afforded subsequent evaluation where some indications of emotional instability were noted. No further reference to psychiatric symptomatology was recorded in the service medical records. The post service record shows that the veteran was hospitalized at a Department of Veterans Affairs (VA) facility in June 1971 where it was noted that he had been admitted for complaints of audiovisual hallucinations and homicidal concerns. Upon discharge one week later, a diagnosis of schizophrenia, paranoid type, was rendered. The veteran was determined to be competent and employable. By rating action dated in September 1971, service connection for paranoid schizophrenia was established and a 10 percent disability evaluation was assigned under the provisions of Diagnostic Code 9203 of the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. Following a subsequent claim for increased benefits, a VA examination for compensation and pension purposes was conducted in April 1972. The disability rating for paranoid schizophrenia was increased to 30 percent. The veteran was admitted for VA hospitalization between December 1975 and January 1976 where he noted that he was unable to cope with anything such as bills and everyday occurrences. He admitted to heavy use of alcohol. He was treated and improvement was noted. He was determined to be competent and employable upon discharge. The subsequent record reflects that the veteran obtained VA hospitalization in December 1978 and April 1981 for continuing complaints associated with his psychiatric disorder, as well as depression. He denied auditory hallucinations, or suicidal/homicidal ideations. He was shown to be treated with medications and was afforded multiple therapy modalities. Improvement upon discharge was found in each instance. Following VA compensation and pension examination in November 1981 where it was found that social and vocational inadaptability had increased in severity, the 30 percent disability evaluation in effect for the service-connected psychiatric disorder was increased to 50 percent disabling. The veteran continued to be admitted to VA facilities for extended periods on a recurring basis for psychiatric symptomatology, including complaints of depression, explosive outbursts, anxiety, agitation, and inability to relax, etc., and was afforded an extensive treatment regimen as indicated previously. He was noted to be unemployed upon an admission in March 1982. When discharged from hospitalization in December 1982, it was recommended that he be followed in the VA Mental Hygiene Clinic. A report dated in May 1983 noted that he had been in the VA Day Treatment Program for the past five months. It was reported that he had held a number of jobs since service and had either been fired or let go because of time lost on account of psychiatric symptoms. A period of VA hospitalization followed in May 1983 where he complained of anxiety, depression, and inability to sleep. He denied delusions, ideas of reference and paranoid thinking. It was noted that he had been unemployed for the past four years. Upon VA examination in February 1984, the examiner related that a variety of psychiatric diagnoses had been rendered in the veteran's case but that no more than schizophrenia, paranoid type could be perceived on the current occasion. It was opined that the veteran was still extremely suspicious, had been prescribed a large amount of psychotropic medication, including Haldol, Elavil and Restoril and was still responding to auditory hallucinations and was acutely psychotic. The degree of social and industrial impairment was felt to be moderate to severe. By rating action dated in March 1984, a disability rating of 70 percent was established for the service- connected schizophrenia. The veteran appealed this determination. The Board affirmed the 70 percent disability evaluation by decision of January 1985. Upon VA psychiatric examination in April 1985, it was noted that there had been no change in the veteran's vocational and social impairment from the last year. He was, however, found to be competent. He indicated he was still not working. He was admitted to the VA hospital between January and February 1986 with complaints which included feelings of stress and loss of control, low self-esteem, depressed mood, nightmares and insomnia. It was reported that he had a number of psychosocial stressors including a recent separation and having recently lost a job he had held for a year. It was noted that there was also a history of intermittent alcohol abuse. During the course of hospitalization, improvement with medication was eventually shown. The veteran was discharged to the VA Day Treatment Program. The veteran was afforded VA psychiatric examination in November 1986 and was noted to have complaints of becoming angry at people and trouble maintaining relationships. He said that he received treatment in the VA mental hygiene clinic, was on multiple psychotropic medications, including Reglan, Elavil, Xanax and Trilafon, went to the day treatment center twice a week and saw a psychiatrist every two weeks. Following mental status evaluation, the examiner reported that there were still residuals of psychosis, that he was paranoid and that he had been depressed on that occasion. It was found that he had a moderate to marked degree of vocational inadaptability, and a mild to moderate impairment, socially. It was noted that continued psychiatric management with anti-psychotics was indicated. The veteran indicated that Social Security benefits were pending at that time. Entitlement to a total rating based on unemployability was denied by an RO rating determination in January 1987. Subsequently received were clinical data from a period of private psychiatric hospitalization of approximately four days in May 1987. It was reported that the reason for the admission was because the veteran had planned to kill himself with a gun. It was noted that he carried a loaded weapon and/or a knife. Mental status upon admission was described as euthymic with a paranoid undertone to everything. He was observed to be restless and hinted that he could become explosive. The level of activity, speech and responses to answers were found to be appropriate and there was no disorganization to his thinking. He was oriented and alert and judgment and insight was felt to be "preoccupied by his status as a professionally disabled person." It was noted that the veteran indicated that he wished to be admitted to a private hospital as a change of pace and give it a chance as his wife had private insurance coverage. It was reported that there was a history of his having lost control over himself, and an attempt to assault another patient in a group therapy program at the VA. The veteran was treated with medication and soon reported feeling well. It was felt that he was in need of continuing care. On VA examination in May 1988, the veteran reported occasional problems '...keeping myself together' and inability to control himself. He noted that he saw a doctor at the VA mental hygiene clinic once a month. It was reported that it had been suggested that he attend the day treatment program but that he indicated it was too far to go. It was recorded that he was currently only on Sinequan and Xanax for his psychiatric symptomatology. It was noted that he was vague about other specific psychiatric problems. A review of his social and industrial history revealed that the veteran had been working as a maintenance man until about two years before. He related that his current income consisted of social security disability and VA compensation. He stated that his wife worked and that he did housework. He said that he could drive and that he did not drink very much. On mental status examination, he was found to have some ideas of reference and paranoid thinking along with underlying hostility. He indicated that he had problems with people in authority. It was noted that he expressed anger towards the VA. He stated that he had flashbacks, but was found to be vague as to the nature of those complaints as well as specific hallucinations. He was determined to be oriented and memory was fair. He was able to talk about his activities, including his fishing. It was opined that he seemed to be using good judgment in the interview situation, that he did not confabulate and evinced no evidence of organicity. A diagnosis of schizophrenia, paranoid type, in partial remission was rendered. It was the examiner's opinion that the veteran continued to have residuals of psychosis, including paranoia. It was noted that he appeared to been under somewhat better control on Trilafon and that maybe it should have been restarted. It was found that the appellant did not meet the criteria for post-traumatic stress disorder. The examiner further added that there continued to be a mild to moderate degree of social inadaptability and moderate to marked vocational impairment. It was found that the present emotional status appeared to be about the same as that described on the previous VA psychiatric examination in November 1986. It was noted that the prognosis was fair for continued adjustment at the current level. By rating action dated in June 1988, the 70 percent disability evaluation in effect for schizophrenia, paranoid type, was reduced to 50 percent disabling dating from September 1988 on the basis that improvement in his overall condition had been demonstrated. A report of psychiatric evaluation dated in November 1988 was received in which D. Olen, M.D., provided a comprehensive background and history of the psychiatric illness. Upon mental status evaluation, the veteran was noted to have twitching movements of the head and neck. There was no evidence of loose associations, hallucinations, or delusions. The appellant reportedly denied current homicidal or suicidal ideas or plans. Memory, abstract reasoning and judgment appeared grossly normal. It was found that affect was one of suspiciousness. It was noted that he was wearing a hunting knife but agreed to leave it at the desk upon coming in. The veteran was described as appropriate, friendly, smiling and pleasant. Following the mental status examination, Dr. Olen stated that he did not elicit a history necessarily consistent with paranoid schizophrenia and that the diagnosis at that time was not totally clear, but that post- traumatic stress disorder with some paranoid trends was certainly present. The veteran was referred for further counseling and medication was maintained. Dr. Olen wrote again in April 1989 and stated that he wanted to "clarify the situation" regarding the veteran by noting that although post-traumatic stress disorder was specifically indicated in his correspondence of November 1988, it was his belief that a great deal of paranoia was present and was represented by a delusional disorder. He related that the veteran was permanently and totally disabled as the result thereof. The veteran was admitted to a VA facility in April 1989 with complaints of fear of losing control, nightmares, flashbacks and withdrawal. On mental status examination he was oriented, affect was somewhat narrow and mood was noted to be depressed. It was reported that there were no psychotic symptoms. He was discharged on medication for his physical disabilities and placed on Xanax and Sinequan for what was diagnosed as post-traumatic stress disorder. On VA psychiatric examination in June 1989, the schizophrenic disorder was still found to be in partial remission. L. Brewster, MSW/CSW, Psy., Sp., wrote in a report dated in June 1989 that the veteran had been seen in readjustment counseling since January 1989 and had indicated that he was appealing his percentage of disability. It was noted that he was unable to function well and had continual flashbacks, severe depression, rage reactions, homicidal and suicidal ideation, and had strong feelings of paranoid, "isolationary" behavior and feelings. It was opined that he had a severe case of post-traumatic stress disorder which along with his complicated physical problems left him totally disabled. The veteran's private counselor, L. Brewster, submitted another report dated in October 1989 at the veteran's request in which a detailed account of his psychiatric symptomatology was provided. It was found that his current occupational functioning was very limited at that point in his life and that he was not able to work as he could not tolerate the pressures of managing any job because of his personality. It was reported that the veteran was severely depressed, experienced panic attacks and was plagued by flashbacks. It was related that he had regular urges to kill himself as well as homicidal thoughts and feared for his future. The prior reduction in his disability compensation was pointedly noted. A request was made that when the veteran's appeal for increasing his disability was reviewed, the adjudicator should be aware of his "motivation to rid himself of his personal misery with the war." It was reiterated that the veteran had a severe case of post-traumatic stress disorder and was totally and permanently disabled and unable to hold employment. A report dated in May 1990 was received from Dr. A. W. Jalkanen providing an MMPI profile. It was indicated that during the months of April and May, the veteran had been hospitalized at a private facility for his psychiatric disorder and that after a week of treatment, was somewhat stabilized and discharged home. It was commented that some of the schizophrenic behavior paralleled many of the same symptoms found in post-traumatic stress disorder but that the primary diagnosis based on behavior structure and test results was schizophrenia. It was noted that the primary purpose of the letter was to provide additional information for the Board to review in a determination for additional benefits for the veteran. Pursuant to a Board remand of December 1990, the veteran was afforded a special VA psychiatric examination in January 1991. It was noted that he had had his most recent VA hospitalization over one year before. It was reported that he indicated that he had stopped going to the VA all together because of what he felt to be inadequate medical attention. The examiner related that the veteran was somewhat difficult to interview because of an emotional state which was controlled, but laden with expletives and many crude epithets. It was noted that part of this derived from his feelings of betrayal by a bureaucratic and impersonal VA system which had over medicated him and from which he had received satisfactory care only indirectly. The veteran stated that he saw a psychologist about twice a week and his private psychiatrist, Dr. Olen, every other month. He indicated he was taking Sinequan daily for his psychiatric disorder and had also been prescribed other medication for his medical problems. It was reported that the veteran's last hospitalization had approximately been in the Spring of the prior year and had been precipitated by his 'trying to get off marijuana and alcohol.' He stated he had not used any of those substances since that time. He said he had not tried to commit suicide since a few years before when he had overdosed on Trilafon. He related that he had been unemployed for a long time but had a roughly harmonious family life. The examiner offered a clinical opinion that the veteran was somewhat anxious and tended to exaggerate and dramatize in his responses. It was noted that he conducted himself in an emotional way, striking poses and looking directly at the examiner in order to prove a point. When asked to respond to number of exercises designed to elicit the degree of cognitive ability, he indicated that he could not respond or did not appear to want to exert any effort. Pertinent diagnoses of schizophrenia, paranoid type, by history; depressive condition, not otherwise specified; substance dependency and personality disorder were rendered. He was determined to be competent for VA purposes. The examiner commented that there appeared to be a good deal of self conscious behavior and resulting factitious errors during the clinical and historical part of the examination but that with the history of suicidal threats and attempts, that therapy should continue. The veteran presented testimony before the signatory Member of the Board in Washington, DC in April 1992. He indicated that he had suicidal and homicidal ideation all the time and always kept firearms in his immediate possession. He related that his daily routine primarily consisted of watching television. He indicated that he continued to drink as a means to "shut down." The veteran stated that he had managed to work as a painter between May to November 1991 but was let go as the result of what he initially perceived to be a "general lay off." He related that while employed, he was unable to get along with other employees and later checked and found that others had been hired just after he left. He reported that his main problems were frustration and losing control. He stated that he no longer sought treatment from the VA because he felt they were "pill pushers" but related that he did see a psychiatrist once a week who counseled him in handling stress. The veteran's wife testified that he isolated himself and remained at home all day drinking coffee, smoking cigarettes, watching television and sometimes drinking. She said that she unloaded his gun when he went through particularly stressful periods. She related that she was in therapy in order to better handle her husband's emotional problems. She indicated that they were not able to socialize with other people because of the veteran' s psychiatric symptoms. The record reflects that the veteran was hospitalized in August 1992 at a private facility and was specifically noted to be in a state of decompensation of recent onset and a failure to respond to outpatient intervention. It is reported that he had become progressively obsessed with suicidal and homicidal thoughts. It was noted that the initial mental status indicated an extremely agitated, tense and angry man who was displaying a non-organic profile associated with psychotic regression manifested by flashback hallucinations and mass paranoid ideation. His state of affect was found to display acute depression and dysphoria. The veteran was treated with psychotherapeutic intervention and medication. It was noted that his response to that regimen was favorable and that at the time of discharge, the profile was non- psychotic and non-organic. He was still considered mildly dysphoric but was not suicidal or homicidal. The prognosis was felt to be fair at best. Upon discharge from subsequent private hospitalization in September 1992, he underwent psychiatric evaluation and was found to evince recurrent and severe psychiatric symptomatology. Pursuant to Board remand of August 1992, the veteran was afforded an extended period of VA observation and evaluation in January 1993 where he admitted to anxiety, depression, hopelessness, flashbacks and nightmares related to Vietnam, trouble with authority, inability to be around crowds, reclusive lifestyle insomnia, and unstable interpersonal relationships. It was noted that he was currently being followed by a private psychiatrist and was also seeking assistance from a drug counselor. It was felt that he did not appear to meet the criteria for schizophrenia. He admitted to drinking a a fifth of alcohol per day, smoking marijuana and snorting cocaine. He was reported to have stated that he believed he was completely incapacitated as the result of his psychiatric illness and evinced a clear theme of wanting to obtain the compensation to which he believed he was entitled. A pertinent discharge diagnosis of post-traumatic stress disorder was rendered. By rating action dated in June 1993, the 50 percent disability evaluation in effect for the service-connected psychiatric disorder, now characterized as post-traumatic stress disorder with a history of paranoid schizophrenia, was increased to 100 percent disabling from August 10, 1992 under Diagnostic Code 9411 of the VA rating schedule. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. A 50 percent evaluation is warranted for post-traumatic stress disorder where the ability to establish or maintain effective or favorable relationships with people is considerably impaired and where the reliability, flexibility and efficiency levels are so reduced by reason of psychoneurotic symptoms as to result in considerable industrial impairment. A 70 percent evaluation requires that the psychoneurotic symptoms be of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent evaluation requires that attitudes of all contacts except the most intimate be 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. The individual must be demonstrably unable to obtain or retain employment. 38 C.F.R. Part 4, Code 9411. The record reflects that when the veteran was afforded VA examination in November 1986, it was noted that he obtained regular weekly treatment at that VA and that he continued on psychotropic medications. Memory was found to be quite good and no organicity was appreciated. The examiner related that there was no evidence of anxiety or depression, but opined there were still some residuals of psychosis requiring continuing medication maintenance and treatment. It was determined, however, no more than moderate social inadaptability was demonstrated and no more than marked vocational impairment was indicated. It was found that his schizophrenia was in partial remission. The record reflects that the veteran had had only one short three-day admission for psychiatric symptoms by the time he was seen again in May 1988 for VA compensation and pension purposes. He indicated upon examination at that thime that he himself had decided to forego his weekly therapy and two types of medication and apparently only saw a psychiatrist once a month. It is significant to note that no untoward symptomatology was displayed on that occasion. It was the opinion of the examiner there had essentially been no change in the appellant's emotional status since the prior examination in November 1986. When Dr. Olen evaluated the veteran in November 1988, it was found that the pervasive thought disturbance which would be expected in a long-standing schizophrenic was not present. The veteran was described as "pleasant", "friendly" and relating in an appropriate manner. It is interesting to note that in a later report dated in April 1989 the doctor attempted to "clarify" his position so as to find that the veteran did indeed have a delusional disorder (apparently so that it ostensibly conformed to the disorder for which the veteran was actually service- connected) which made him permanently and totally disabled. In subsequent reports, the veteran's private counselor, L. Brewster, unequivocally pronounced him to be permanently and totally disabled on account of post-traumatic stress disorder. When the appellant was examined by the VA in January 1991, he stated that he was unable to work. It was the examiner's opinion on that occasion that there was a great deal of conscious behavior to project a mentally sicker picture than was actually present. A diagnosis of schizophrenia, by history was recorded at that time. Under 38 U.S.C.A. § 5110(b)(2), the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability has occurred. The Board's review and analysis of the evidentiary record in this instance clearly indicates that veteran's service-connected psychiatric disability was not shown to have been totally incapacitating throughout the years after service and that he was able to work. The first indication that he had progressed to the point that he was unable to work appears in the record when it was indicated upon VA examination in May 1988 that an award of Social Security benefits had been made. The totality of the clinical record reflects, however, that he was also shown to have multiple physical disabilities, including substance abuse and chronic respiratory and gastrointestinal disorders for which he received continuing treatment. On personal hearing in March 1989, he described constant pain due to lung and stomach difficulties. However, in May 1988 and prior to such, he was found to exhibit no more than moderate to marked social and vocational impairment on VA examinations. This does not comport with a finding of total disability due to psychiatric disability at that time. The evidence discloses that the veteran attempted to pursue gainful employment in 1991. Upon personal hearing in April 1992, he related that he had worked as a painter beginning May of that year until being released in a general lay off the following November. It is shown that he himself apparently felt less need for psychiatric intervention during that time and the record does not reflect any severe repercussions as the result thereof. It is indicated that he was doing well domestically and interacting to some extent with coworkers and his employer during that time frame. There is no showing of repeated or extended admissions for psychiatric symptomatology in recent years, except for one three-week period during April and May 1989. It is demonstrated, however, that private psychiatric practitioners did opine in clinical reports beginning in November 1988 that the veteran was indeed totally and permanently disabled on account of psychiatric symptomatology despite a showing of some coping skills. The Board notes that his work as a painter appears to be the only employment he attempted and/or obtained between that period and that it lasted for only a relatively short time. The appellant testified upon personal hearing that because others were hired for the same position shortly after he was let go, that this was conveniently done by his employer on account of his inability to psychiatrically adapt to the work environment. It is thus found that social and industrial adaptability was no more than marginal at best. Consequently, the Board finds that the earliest ascertainable date for an award of increased compensation for psychiatric disability in this instance was November 1988. It should be noted that the Board also perceives a theme of secondary gain woven throughout the recent private and VA clinical data of record and emphasizes the fact that the veteran has not apparently attempted any program of vocational rehabilitation in order to ascertain whether or not employment is even feasible for him. However, there is substantial evidence of record reflecting an inability to maintain any consistent and sustained work effort due to psychiatric symptomatology. While the private clinicians' statements do not support findings of totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality...resulting in a profound retreat from mature behavior, the appellant was reasonably shown to be demonstrably unemployable as delineated by the requisite criteria of 38 C.F.R. Part 4, Diagnostic Code 9411 during the relevant time frame. In view of these findings, and resolving the benefit of the doubt in favor of the veteran, it is concluded that the evidence approximates the criteria to establish an earlier effective date for assignment of a 100 percent schedular evaluation for the service-connected psychiatric disorder from November 1, 1988. ORDER An earlier effective date for a 100 percent disability rating for post-traumatic stress disorder dating from November 1, 1988 is granted subject to controlling regulations governing the payment of monetary awards. ___________________________ ALBERT D. TUTERA Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.