Citation Nr: 0000545 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 98-12 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an 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 Richard A. Cohn, Associate Counsel INTRODUCTION The veteran served on active duty from June 1966 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO) which granted service connection for PTSD and assigned a 30 percent rating from July 11, 1997, the date of the veteran's claim. FINDINGS OF FACT 1. The record includes all evidence necessary for the equitable disposition of this appeal. 2. Prior to April 27, 1998, the veteran's service-connected PTSD was manifested by flattened affect, difficulty in establishing and maintaining effective work and social relationships, depressed mood, anxiety, social withdrawal, suspiciousness, chronic sleep impairment, impaired impulse control, but not by circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short- and long-term memory, or impaired judgment or abstract thinking. 3. On and after April 27, 1998, the veteran's service- connected PTSD is manifested by occupational and social impairment with reduced reliability and productivity due to impaired judgment and cognitive processes, disturbances of motivation and difficulty in establishing and maintaining effective work relationships, but he does not have deficiencies in most areas with obsessional rituals interfering with his routine, intermittently illogical speech, near continuous panic or depression affecting independent function, spatial disorientation, neglect of personal hygiene or inability to establish and maintain effective relationships. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for PTSD prior to April 27, 1998 have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.130, Diagnostic Code 9411 (1999). 2. The criteria for an evaluation of 50 percent for PTSD on and after April 27, 1998 have been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.130, Diagnostic Code 9411 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he is entitled to a higher evaluation for his service-connected PTSD because the disorder is more disabling than contemplated by the current 30 percent rating. The Board finds initially that the veteran's claim is well grounded, see 38 U.S.C.A. § 5107(a) (West 1991), because a challenge to a disability rating assigned to a service- connected disability is sufficient to establish a well- grounded claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Caffrey v. Brown, 6 Vet. App. 337, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board also is satisfied that the record includes all evidence necessary for the equitable disposition of this appeal and that the veteran requires no further assistance. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule) to the veteran's current symptomatology. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4 (1999). The Board reviews the extent to which a service-connected disability adversely affects the veteran's ability to function under the conditions of ordinary daily life. The Board then assigns a rating which, as far as practicable, is based upon the extent to which the current disability impairs the veteran's earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. If two evaluations are potentially applicable the higher evaluation will be assigned if the disability appears to approximate more closely the criteria required for that rating. Otherwise, the Board assigns the lower rating. 38 C.F.R. § 4.7. In a claim of disagreement with a disability rating assigned contemporaneously to a grant of entitlement to service connection, the facts of a particular case may require assignment of separate disability ratings for separate time periods. Fenderson v. West, 12 Vet. App. at 126. The RO granted service connection for PTSD in September 1997 at an assigned disability rating of 30 percent pursuant to Diagnostic Code (DC) 9411. That rating has been in effect ever since. Under 38 C.F.R. § 4.130, DC 9411, PTSD is evaluated as follows for the 30, 50, 70 and 100 percent ratings, respectively: 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]. Rating prior to April 27, 1998 The first claims file evidence documenting the veteran's PTSD is a report of an August 1997 VA examination which notes that the veteran attended VA outpatient treatment for PTSD. The report also notes that during the examination the veteran was uneasy and tense with flattened affect and a detached attitude manifested by reported constricted work, social and peer relationships and a tendency to distrust people. The veteran also reported irritability and short temper, frequent sleep impairment and recurrent Vietnam War-related dreams and flashbacks, combat-related guilt, depression and absence of hobbies, but no suicidal ideation or phobias. The examiner found that the veteran was well groomed with good hygiene and fair judgment, insight, memory and concentration, and that he was regularly employed. The examiner based a PTSD diagnosis upon findings of withdrawal, lack of interest, hypervigilence, sleep disturbance with nightmares and interpersonal problems and described the veteran's PTSD disability as moderate. The examiner assigned a Global Assessment of Functioning (GAF) score of 60 to 65. VA treatment records also from August 1997 to March 1998 note findings including full orientation, absence of homicidal and suicidal ideation or evidence of gross psychosis, psychomotor retardation, depressed mood with appropriate affect and slow but coherent speech and the veteran appeared weary and despondent. The record also notes that the veteran reported feelings of helplessness, frequent outbreaks of violent anger, nightmares and depression. Treating physicians also noted absence of the need for inpatient psychological treatment, a 30 year continuous work history, a more than 20 year marriage to a woman with whom he lived and who he described as very supportive and understanding, and generally good relations with his children, siblings and mother. Prior to April 27, 1998 the veteran manifested some symptoms required for an evaluation in excess of 30 percent for PTSD under DC 9411. Those symptoms include, flattened affect, violent anger and depression. However, the medical evidence also shows little or no evidence of many other symptoms required to support an evaluation in excess of 30 percent. Specifically, there is no evidence of circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short- and long-term memory, or impaired judgment or abstract thinking. Notwithstanding his emotional outbreaks the veteran retained close relationships with his wife, children, siblings and mother, was a church member and has proven himself to be sufficiently flexible to maintain a 30 year career as an electrician and to find and keep other employment after ending that career. The GAF score of 60 to 65 is consistent with the conclusion that the veteran manifested only "moderate level of social impairment" as a result of his PTSD, consistent with the 30 percent rating. See American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (Fourth Ed. 1994) (DSM-IV) adopted by the VA at 38 C.F.R. §§ 4.125 and 4.126. Rating on and after April 27, 1998 VA treatment and examination records beginning on April 27, 1998 document a deteriorating picture of the veteran's PTSD symptomatology. A physician's note from that date finds worsening, nearly disabling emotional abnormalities, cognitive disruptions, unpredictable emotional outbursts, mood swings and uncontrollable bouts of increasingly severe depression and irritability. A similar note in June 1998 reports fewer recent outbursts of temper but continued guardedness, vigilance and suspicion of unusual intensity. Although the veteran's claims file was not available for review by the VA physician who examined the veteran that month, the examination report also noted worsening symptoms including anxiety, increasingly intense and frequent flashbacks, nightmares, sleep impairment, suspicion of strangers, exaggerated startle response and hypervigilence. The examiner also observed that the veteran was well groomed, cooperative and alert, with relevant, logical and goal- directed speech, full orientation and intact memory, judgment and insight. The veteran reported that he had not lost work time due to illness and that he was a church member, and he denied delusions, hallucinations, and suicidal or homicidal ideations. The examiner assigned a GAF score of 50 "indicating major impairment in social functioning but able to maintain occupational productivity." The latest treatment records associated with the claims file, from January and March 1999, confirm continued sleep disturbance, emotional instability and marital strain, lack of suicidal or homicidal ideation, satisfactory family and work life, clear and expressive speech and appropriate affect. At his March 1999 RO hearing the veteran testified that in 1998 he felt it necessary to leave his long-term occupation because of his PTSD. He stated that he had lost concentration while working on a high voltage electrical panel which subsequently blew up in his face, causing second degree burns on his arms. Thereafter, he decided to end his 30 year electrician's career because of concerns that a PTSD- related impairment rendered him a danger to himself and to his colleagues at the worksite. He further testified that although his new job was less stressful than electrician's work it paid less. The veteran also described recurring anxiety attacks but stated that the medications prescribed for his PTSD helped ease the symptoms to some degree. The veteran's representative argues that the veteran's June 1998 examination is inadequate because the examiner was unable to review the claims file. However, the Board finds the credibility of the examination report to be uncompromised not only because it addresses relevant history, mental status, diagnosis and the GAF, but also because its findings are consonant both with the prior examination report and prior and subsequent treatment records. The Board finds that on and after April 27, 1998, the veteran manifested substantial symptoms consistent with an evaluation in excess of 30 percent for anxiety under DC 9411. The veteran clearly has demonstrated occupational and social impairment with reduced reliability and productivity due to impaired judgment and cognitive processes, disturbances of motivation and difficulty in establishing and maintaining effective work relationships. Furthermore, although the examiner noted that the veteran's insight and judgment are "fair" and that he demonstrated sufficient ability to maintain personal relationships with his wife, family and some others, the assigned GAF score of 50 is consistent with "serious social impairment" consistent with a 50 percent disability rating. See DSM-IV. In consideration of the foregoing, the Board finds that the medical evidence shows that on and after April 27, 1998, the veteran's PTSD manifested itself to a degree sufficient to warrant a 50 percent schedular rating. The symptomatology associated with the veteran's PTSD is not shown to more nearly approximate the schedular criteria for the next higher 70 percent evaluation because the veteran does not have deficiencies in most areas with obsessional rituals interfering with his routine, intermittently illogical speech, near continuous panic or depression affecting independent function, spatial disorientation, neglect of personal hygiene or inability to establish and maintain effective relationships. See 38 C.F.R. § 4.7. Conclusion In reaching its decision the Board considered the history of the veteran's PTSD and possible application of other provisions of 38 C.F.R., Parts 3 and 4, (pertaining to extraschedular evaluation) notwithstanding whether the veteran or his representative requested such consideration. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-3 (1991). However, the Board finds that the record does not show the veteran's disability to be so exceptional or unusual as to render application of the regular schedular standards impractical. The evidence of record does not show that the veteran's PTSD has interfered with employment beyond the level contemplated by the assigned evaluation or necessitated frequent periods of hospitalization. Absent these or similar issues, the Board finds that criteria for submission for assignment of an extraschedular rating are not met. 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An evaluation in excess of 30 percent for PTSD prior to April 27, 1998 is denied. An evaluation of 50 percent for PTSD on and after April 27, 1998 is granted, subject to the laws and regulations governing the payment of monetary benefits. MILO H. HAWLEY Acting Member, Board of Veterans' Appeals