Citation Nr: 0920567 Decision Date: 06/02/09 Archive Date: 06/09/09 DOCKET NO. 91-55 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial disability rating in excess of 50 percent disabling for posttraumatic stress disorder (PTSD), with alcohol abuse. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The veteran had active military service from July 1967 to July 1970. These matters originally came before the Board of Veterans' Appeals (Board) on appeal from a July 1990 rating decision from the Regional Office in Roanoke, Virginia (Roanoke-RO), which in part, granted service connection for PTSD and assigned an initial 30 percent rating and denied service connection for alcohol abuse. In an October 1991 decision, the Board remanded the case, in part, to obtain additional medical records in connection with the PTSD and alcohol claims as well as a medical examination in connection with these claims. In November 1993, the case was returned to the Board for further review. In a July 1994 decision, the Board granted secondary service connection for chronic alcohol abuse and remanded the case to the Roanoke-RO for further adjudication of the claim for an increased rating for PTSD in light of the grant of service connection for alcohol abuse. In January 1995, the Roanoke-RO in part, increased the veteran's disability rating to 50 percent for his service- connected PTSD, now combined with alcohol abuse, effective from the date of initial entitlement in May 1989. The case was returned to the Board for review. In May 1995, the Board remanded the case for further evidentiary development related to the issues of entitlement to an increased rating for PTSD with alcohol abuse and addressed other matters not currently before the Board. During the pendency of this appeal, the case was transferred to the Regional Office in Atlanta, Georgia (Atlanta-RO). In a December 1997 decision, the Board again remanded the case to the Atlanta-RO for additional medical records and an examination in connection with the PTSD claim, as well as addressing other matters not currently before it. In an April 2004 determination, the Board disposed of another issue that was before the Board, and once again remanded the issue of entitlement to an increased disability rating for his service-connected PTSD for further development. Finally the matter was again remanded by the Board in February 2006 to ensure completion of unfinished development. Such development has been completed and this matter is now returned to the Board for further consideration. The Board notes that while the Veteran has requested a hearing before a Veterans Law Judge, he has recently indicated in an April 2009 letter that he is presently incarcerated for many years. Accordingly he is shown to be unavailable to attend a hearing. FINDING OF FACT The Veteran's PTSD with associated alcohol abuse from initial entitlement has been shown to be manifested by such symptoms as nightmares, intrusive thoughts, startle reaction, persistent flashbacks, auditory hallucinations, depressed mood with history of suicide attempts and social isolation and has been found by medical evidence to result in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to these symptoms. CONCLUSION OF LAW With resolution of reasonable doubt in favor of the Veteran, the criteria for a 70 percent initial rating for PTSD with associated alcohol abuse have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.132, Diagnostic Code 9411 (effective prior to November 7, 1996); 38 C.F.R. § 4.130; Diagnostic Code 9411 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to notify and assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was recently amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. See 73 FR 23353 (Apr. 30, 2008). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the present case, the unfavorable AOJ decision that is the basis of this appeal was already decided and appealed prior to the enactment of the current section 5103(a) requirements in 2000. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice. Rather, the appellant has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. In the present case, the Veteran's claim on appeal was received in December 1989. The RO adjudicated it in July 1990. The Veteran has appealed the initial rating assigned for the PTSD. In this case, the VA's duty to notify was satisfied subsequent to the initial AOJ decision by way of a letter(s) sent to the appellant in April 2001. Thereafter, additional notice was sent in May 2004, September 2005, February 2006, June 2006, September 2006 and July 2008 addressing the increased initial rating claim. The matter was readjudicated by the RO in a July 2008 supplemental statement of the case. The duty to assist letter notified the Veteran that VA would obtain all relevant evidence in the custody of a federal department or agency. He was advised that it was his responsibility to either send medical treatment records from his private physician regarding treatment, or to provide a properly executed release so that VA could request the records for him. The Veteran was also asked to advise VA if there were any other information or evidence he considered relevant so that VA could help by getting that evidence. Although the notice letter was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a supplemental statement of the case issued in July 2008 after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Although in this matter there was no notice provided before the grant of service connection because the initial rating predates the enactment of the current section 5103(a) requirements in 2000, the subsequent notice that was provided was legally sufficient. VA's duty to notify in this case has been satisfied. See also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet, App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, supra. In this case, the Veteran was sent a letter in July 2008 which in addition to discussing the general criteria for a disability rating, the letter also provided examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation -- e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Although effective date criteria was not discussed in this July 2008 letter or any other letter, the Veteran is not prejudiced as the effective date matter will be addressed by the RO when it implements the grant of the increased initial rating. Even if this letter were deemed insufficient as it did not address with specificity the criteria for adjudicating the PTSD under pertinent criteria, the Veteran was provided detailed information regarding the applicable criteria for an increased rating for PTSD, both "old" and "new" by the statement of the case (SOC) sent in November 1990 and the supplemental statements of the case issued in February 1997, October 2005 and most recently in July 2008 when it reajudicated the claim. The Veteran has provided arguments and multiple briefs from his representative throughout the course of his appeal including the most recent representative brief of April 2009, where his disability from PTSD was described in detail. The Veteran, who has representation, had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication was not affected. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"). Therefore, the presumption of prejudice is rebutted. For this reason, no further development is required regarding the duty to notify. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). Service treatment records were previously obtained and associated with the claims folder. Furthermore, VA and private medical records were obtained and associated with the claims folder. Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA examination conducted in April 2008 provided current assessments of the Veteran's disability based not only on examination of the Veteran, but also on review of the records. In summary, the duties imposed by 38 U.S.C.A. §§ 5103 and 5103A have been considered and satisfied. Through notices of the AOJ, the claimant has been notified and made aware of the evidence needed to substantiate his claim for higher disability ratings, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claims decided on appeal. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the claimant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter being decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has held that unlike in claims for increased ratings, "staged ratings" or separate ratings for separate periods of time may be assigned based on the facts found following the initial grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). An evaluation of the level of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 . When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). The Veteran filed his claim in December 1989 and in a July 1990 rating, the RO granted service connection for PTSD and assigned an initial 30 percent rating. This initial rating was increased to 50 percent in a January 1995 rating. Among the pertinent evidence submitted in conjunction with his claim were records showing that in May 1989 he was hospitalized with a long history of recurrent depression and PTSD. His history was noteworthy for having come from a troubled environment and he saw trauma in Vietnam. He was poorly compliant with his follow-up. He admitted complaints of depression and PTSD. Symptoms included sleeping poorly, and decreased memory, concentration and appetite. There was also increases in social withdrawal, anxiousness, depression and some thoughts on wrecking his car or overdosing. Symptoms had been present for 6-7 months. He also reported flashbacks and nightmares. He was drinking 3-4 beers. He reported a severely strained family situation which was due to his being investigated for sexual misconduct involving a stepdaughter. He gave a history of prior psychiatric hospitalizations in 1984 with diagnoses that included PTSD. He had a history of suicide attempts six months ago by overdose and last year in jail by attempted hanging. His mental status examination revealed him to be well dressed and well groomed. He had poor eye contact and was slow to trust. Speech was normal. He had some circumstantiality of thought but it was generally goal directed. His affect was restricted and mood was depressed. There was some suicidal ideation by history. There were no homicidal ideations. There were no hallucinations or delusions or illusions. Cognitively he was alert and oriented times 3. He was noted to have very little education and likely below normal intellect. His judgment was very poor by history. His insight was poor. The hospital course revealed that he was enrolled in the usual individual and group sessions. Obviously he had PTSD and a severe character pathology. He did seem to do fairly well on the unit and seemed to get some improvement on medication for nightmares and flashbacks. At the time of discharge he stated he was not ready to leave and had a confrontation with the staff with a threat report written. He was given the option of discharge later the next day but opted for discharge the same day and apologized for some of his behavior before leaving. In April 1990 he was seen for substance abuse treatment, having used alcohol, Valium and Tylenol with Codeine in the past. He had a history of being abused and abandoned as a child and was in foster homes until age 18. He was married 3 times with the third marriage intact. He reported remorse over the inappropriate relationship with his stepdaughter, but said she consented. He gave a history of not drinking heavily until he returned from Vietnam. He reported having felt rejected by his wife and separated temporarily in 1983 but returned when the stepdaughter begged him to return. He reported several unsuccessful suicide attempts and seemed remorseful over his inappropriate behavior and claimed not to understand the motivation. He wanted treatment to avoid future problems. He sought inpatient substance abuse treatment with a goal of complete abstinence. In May 1990 he sought psychiatric treatment and underwent psychiatric testing. He reported flashbacks, nightmares, startle response and very disturbed sleep patterns. He had angry spells and occasional suicidal thoughts with plan. He had audio and visual hallucinations related to Vietnam. He reported self medicating with drinks or drugs in the past. He was depressed and tearful when discussing his current family situation. On mental status examination he was oriented times 3, had intact memory, coherent thought pattern, goal oriented, depressed mood and occasional suicidal thoughts. He wanted help for depression, nightmares. The diagnosis was PTSD, along with a history of substance abuse. The evaluator thought that the Veteran needs help for PTSD and associated depression and believed the alcohol was self medicating for his symptoms. He was not deemed appropriate for inpatient alcohol rehabilitation but instead was advised structured ongoing psychiatric care in a structured environment. The psychiatric evaluation testing noted that he had a past history of severe family dysfunction and exposure to abuse as a child. He was noted to have an 8th grade education. He expressed remorse about his own inappropriate behavior and had thought in the past of self mutilation of his genitals but had no current ideations. Mental status revealed that he was well oriented times 4, with low-average intellect. His attention and concentration appeared adequate from a neuropsychiatric standpoint. There was no evidence of memory impairment or gross indications of neuropsychological involvement. His affect was appropriate though he periodically expressed sadness and spoke of remorse. There were no loose associations or strong delusional thoughts. He reported a past history of audio and visual hallucinations. Testing revealed significant depression and underlying hostility and there were further indicators of significant anxiety regarding his conflicted feelings about aggressive and sexual concerns. Ha also had some paranoia and transfer blind mechanisms. Tests also revealed he was relatively guarded, an obsessive worrier and guilt prone. He had intensive concerns about sexual issues. He felt inadequate and inferior. Interpersonally he related in a hostile-dependent manner and felt strong social alienation. He tended to avoid and withdraw from social contact. Overall he appeared to be experiencing major depression which reaches major proportions and additionally there were features of PTSD as well as borderline dependent personality characteristics. Substance abuse periodically played a part by weakening ego controls. When stressed he might exhibit signs of ego decompensation though he was not overtly psychotic. He denied suicidal ideations although considering his low self image, depression, guilt, destructive behavior was certainly a possibility in the future. The doctor opined that he needed long term intense psychotherapy and psychopharmological intervention. From June 1990 to September 1990 the Veteran was hospitalized pursuant to a Court order as mentally ill. He was noted to have been incarcerated and attempted suicide in jail. He reported hearing voices from Vietnam and having flashbacks. He was noted to have owned a maintenance company with contracts to clean buildings. He was very sad on admission due to his legal problems related to his sexual misconduct. Past history included PTSD treatment and a history of overdosing on pills. He used alcohol, no street drugs. His hospital course initially revealed him to be depressed with flashbacks and auditory hallucinations but not overtly psychotic and he was on suicide watch but no attempts or gestures were made. After being transferred to a community preparation unit in August 1990 he decompensated with flashbacks and crying. He was noted to have been helped in the past with Haldol, which was administered in low dose resulting in improvement. He turned into a pleasant high functioning individual although somewhat manipulative. Following a hearing in September 1990 he was given a 25 year suspended sentence. His condition stabilized for the past 3 weeks and he was discharged to a boarding home. The discharge diagnoses included psychotic disorder NOS in remission and personality disorder NOS. His GAF was 75 at present, but past year was undetermined. The report of a June 1990 VA examination recited the Veteran's previous history and he was noted to have requested transfer for long term PTSD treatment at a VA facility in Pennsylvania. He reported he was really struggling. He still had flashbacks, hears voices, and had nightmares. He was treated with a variety of drugs, most recently with Thorazine which did not help. He continued having visual hallucinations, seeing people who were not there. He had audio hallucinations and woke at 2 am from nightmares. He startled easily from sudden noises and did not trust people. He could not deal with his Vietnam experiences. He talked about his Vietnam stressors. Since returning from Vietnam he could not keep a job and had been "drifting." He had 2 marriages and reported his wife was still attached despite his difficulties, and believed his wife forgave him for his indiscretions. On examination he had bland affect, looked essentially depressed and had a history of suicide attempts over the years. He worried about his condition and wanted prolonged treatment. The diagnosis was PTSD, depression in partial remission and alcohol by history and mixed personality disorder. Also in June 1990 he underwent social and industrial survey for adjudication. He noted a recent legal history with primary complaints of nightmares from Vietnam. Objectively he was alert times 3 and cooperative. He still had audio and visual hallucinations and nightmares, but denied suicidal or homicidal thoughts. He had a mildly restricted affect, unremarkable mood. He reported startle reactions. He was tearful when discussing his family failures and his inability to be his own man. Based on his past history of treatment and impressions from this interview, it was felt he had overlapping problems making it difficult to distinguish the degree of contributing limitations due to PTSD. He clearly had deficiencies related to this service-connected condition and overall should be considered severely restricted socially and industrially. The Veteran testified at a May 1991 hearing saying he began drinking in Vietnam and did it to self medicate for nightmares. He endorsed severe startle reaction, flashbacks, nightmares, suicidal thought, auditory hallucinations, and sleep trouble. He reported volunteering with Meals on Wheels and the Red Cross. The Veteran underwent repeat VA examinations in June 1992 and in September 1994 both conducted by the same examiner who had examined him in June 1990. Both times the examiner commented that there was very little change in the Veteran since he had initially seen him in June 1990. On the occasion of the June 1992 examination, the Veteran reported no hospitalizations since 1989 but he continued outpatient treatment at the Vet Center. He was recently taken off Haldol and had more problems, with continued nightmares and occasional daytime flashbacks especially after sudden noises. He avoided contact with Vietnam reminders and indicated that he lived with his wife out of convenience as they no longer had a marital relationship. He indicated that he was taking care of his 9 month old grandson while the 15 year old mother was confined. He believed he would be awarded custody of this child. He was casually dressed, neatly groomed, looked quite dejected and talked in a bizarre tone of voice. He felt pressure from finances. The diagnosis was PTSD and dysthymia. He appeared to be dealing with his problems to the best of his ability but was unable to secure work. He indicated that he gets fired when employers learn his history. The September 1994 VA examination revealed that he was not currently being followed in mental health and continued with sleep problems and nightmares. He still drank occasionally. He had nightmares and heard voices screaming for help once in a while. He was noted to have been working on and off but lost his job delivering pizzas when his car broke down. He has not been able to find work since. He had no PTSD symptoms in the daytime except every so often he would start crying for no reason. He still thought about Vietnam. He lived with his 3rd wife who he had not yet divorced and their 18 year old daughter. He reported that his major income came from church that he attended regularly and he had a lot of friends there. Examination revealed him to be dressed in soiled clothes, unshaven and poorly groomed. He looked neglected in terms of hygiene. He gave rather vague statements but left the examiner with the impression he was quite unhappy. The examiner doubted he would benefit from psychiatric treatment but felt he needed social support. The Axis I diagnosis was again PTSD, chronic, moderately severe and dysthymia. An Axis II mixed personality disorder was also diagnosed. The examiner felt he needed more help than he previously had in the past. The examiner also doubted that he would be able to support himself through gainful employment but indicated he would need more support in this area. An August 1995 VA record noted the Veteran to be currently stable on Haldol with no current stressors other than money problems. He was noted to have regular speech, fair eye contact and okay mood. There were no psychotic symptoms reported and no suicidal or homicidal ideations. He was assessed with PTSD, stable. In an April 1996 VA examination, the Veteran reported that he was continuing to do the community service that he had been sentenced to do. He worked for meals on wheels and as a youth counsel. He felt that he was trying to give back to the community but did not feel appreciated by other people. He also complained of nightmares, occasional voices and was easily irritable. He said that prior to Vietnam he had personal difficulties but would handle disagreements at work by walking off jobs but after Vietnam he had problems with loss of control. He had owned a maid service company but lost it secondary to his alcohol abuse which he used to sleep. He currently felt unable to function in a work place although he had started a part time job with the census. This was only a 2 hour a day temporary job. Objectively he was quite cooperative and acknowledged many things he was ashamed about. He reported hearing voices and visual hallucinations associated with Vietnam connected with flashbacks. He was well oriented and up to date with current events. He was still taking Haldol and Thorazine. Although not very anxious he found himself depressed because nobody cared. He felt empty and though he saw his now separated wife, there was no intention of reviving the relationship. He was considered competent to handle finances. The examiner concurred with the previous diagnoses of PTSD with chronic dysthymia related to his underlying borderline personality organization as reported in the earlier examinations. VA records from March 1996 revealed ongoing complaints of nightmares, decreased sleep and complaints of his small apartment feeling like closed in like a bunker. He had no drug or alcohol use and no change in appetite. He appeared anxious and was worried about the apartment, but otherwise his mental status examination was unremarkable. He was assessed with history of PTSD and was to continue his Haldol and Trazodone. In May 1996 he reported that he did not hear voices, as they were well managed with Haldol. His sleep was also somewhat improved with Trazodone. He was working 2-3 hours a day of a school survey job. Otherwise his mental status was unremarkable and his PTSD was assessed as stable. The Veteran was hospitalized in July 1997 with complaints of feeling down and depressed, disappointed in himself and having suicidal ideations. He reported feeling depressed for 3-4 months, with frequent thoughts of suicide. He said the previous night he thought of overdosing on Haldol, but the thought of his 17 month old child stopped him. He reported having lost his job as a painter when the business collapsed and has not worked since. His prior work history included having owned his own business for 10 years and also having worked at a pizza place. He complained of decreased appetite, some weight loss, sleep problems, tiredness, crying spells and feeling hopeless and worthless. A history of several suicide attempts was noted. He also was noted to have a history of legal problems, and of being institutionalized in the State Hospital following his sexual misconduct. His alcohol use history was noted to include heavy use in 1989, still with occasional drinking. Mental status examination was significant for psychomotor retardation, slow speech and decreased tone, but still coherent and relevant. His affect and mood was of one who did not care. He had occasional auditory hallucinations but no other type of hallucinations or delusion. He was admitted for nursing observation for his suicidal ideations, but denied such thoughts after admission. He continued to have a flat affect, and spent a lot of time painting which he said occupied him. After he had an increase of his Trazodone his sleep problems improved. When the time for him to be discharged approached he was not keen on being discharged but it was felt that keeping him in longer would foster dependency and it was determined that discharge was best for him. Also in July 1997 he underwent neuropsychiatric testing and again his history was noted. His work history and personal history were again recited in detail and included a history of his having worked at a hospital shortly after service, but lost his job when he reflexively struck back at a patient who had hit him. Mental status examination was again unremarkable other than for his mood noted to be slightly depressed on interview, with restricted range. He had admitted to tearfulness, suicidal ideation and transient auditory hallucination controllable to some extent. Following extensive testing the Axis I diagnoses included adjustment disorder with depressed mood, dysthymia, chronic, PTSD chronic and history of alcohol abuse. His GAF score was 50. He was hospitalized again in August 1998 as a consult to continue psychiatric medications. He had moved to Atlanta from Richmond to help out his daughter with a baby and he was financially supporting her. He had PTSD and reported a history of seven suicide attempts, most recently in 1990. His complicated personal history involving the deviant relationship with his stepdaughter was again detailed, although he claimed he and the stepdaughter were still great friends. His history of having worked various jobs over the past 8 years was noted, ranging from maintenance to delivery driver. He presented as alert, responsive and oriented and was initially guarded on approach and preoccupied in thought. His voice was noted to be slightly above a whisper at first. He had sad facial expression and depressed mood. He reported auditory hallucinations all the time, as well as flashbacks and nightmares. He was easily frustrated and admitted to suffocating feelings under stress. There were no suicidal/homicidal thoughts at the time. An addendum from September 1998 noted that he had not been doing well and was feeling more upset. His mood and affect were depressed and seemed a little angry. He reported flashbacks, but no suicidal or homicidal thoughts. He was diagnosed with PTSD with a GAF of 60 assigned. VA update which was entered as closed in July 2003 noted that the Veteran was lost to followup due to his dissatisfaction with changing counselors but he was often a no show. He was having flashbacks again. He was noted to have first entered CPRS in May 1998. In November 1998 the Veteran was incarcerated after apparently committing another sexual offense. Available records from the correctional facility reveal that in a June 2002 mental health evaluation he complained of hearing voices. He took a lot of medication. He also indicated he gets paranoid. The examiner noted PTSD with flashbacks, intrusive thoughts, nightmares, auditory hallucinations, racing thoughts, agitation and decreased need for sleep. He also endorsed delusions. The symptoms said to have begun in 1970 were ongoing and moderate in severity. The current treatment's effect was good. He reported 2 suicide attempts, both when in jail at age 43 and 53. Physical examination revealed he had appropriate dress, appearance, hygiene, normal voice and speech, logical and coherent thoughts, no delusions. He had no current suicidal ideations, with a last attempt in September 1998. He had auditory hallucinations. His mood was euthymic, affect was flat, he reported insomnia and early awakening. He was oriented times 4, had fair insight, average impulse control and was cooperative. He had average judgment. He was assessed with PTSD. Records from January and February of 2003 revealed that his chief complaint was PTSD with symptoms of nightmares, anxiety, depression and history of suicide attempts by overdose and hanging. His symptoms continued to be flashbacks, depression, anxiety and intrusive thoughts and his history of multiple suicide attempts were again noted. Records from 2006 through 2007 include records from February 2006, August 2006 and October 2006 repeatedly revealing symptoms of auditory hallucinations of hollering for help, flashbacks and nightmares. Repeatedly his mental status examination revealed him to be fully oriented, calm, cooperative and euthymic or cheerful. Also in a mental status checklist of selected items checked off in February 2006, August 2006 and October 2006 he checked "no" to having psychosis, serious depression, self injurious thoughts, suicidal ideations, aggressive, impulsive or situational upset. In January 2007 a treatment team meeting determined that he was appropriately placed in the General Population unit. Plans were noted to include addressing suicidal behaviors. In February 2007 he complained of nightmares about once or twice a week, and also reported drowsiness from taking medications. Mental status examination revealed prominent dysphoria and at times talking with a barking like speech. He otherwise was calm, cheerful and cooperative. The report of an April 2008 VA examination included claims file review and examination of the Veteran. He was noted to be incarcerated probably until 2012. The history of his PTSD symptoms with Vietnam stressors was reported in detail. His current symptoms included his earliest symptoms of hearing hallucination of a soldier's voice screaming for help who was shot when walking in the jungle with him. He reported daily nightmares and flashbacks. Other symptoms included disliking closed in spaces, depression, being a loner, jumpiness at loud noises, disliking having people behind him and occasional suicidal ideations. He reported his problems began in 1970 when he overdosed on pills, was put on Valium and started drinking combined with Valium. He said when he tried to stop he heard voices and felt being closed in. He reported 9 suicide attempts mostly by overdose, but also tried hanging and driving a car off a bridge. His last attempt was with Benadryl. His claims file was reviewed and history was recited in detail including the legal history and the hospitalization in 1990 in conjunction with the Court Order. He also gave a work history of having worked at the VA medical center right after service, but lost the job when he reacted to a patient's assault by hitting back. He worked with a cleaning service for six years and then started his own cleaning service which he ran for about 9 years despite drinking heavily. He was then arrested in 1989 and stopped working briefly and lived off a nonservice-connected pension. He then worked as a maintenance man for an apartment complex from 1990 to 1992 but was not getting paid, then in 1996 he moved to Atlanta and worked as a painter and handyman for over a year until his arrest on current charges. He was married 3 times and had 2 children with his second wife. He reported 10 arrests for disorderly conduct after Vietnam and 2 felony arrests for sexual offenses with minors. Regarding his prison life he mostly reads. He was housed in General Population and was not in a special unit. He was assigned certain chores like cleaning and did these a few hours a day from Saturday to Tuesday. He did not get paid and did not do them on the weekend. He attended one class weekly which was a 3 hour faith based counseling and was ready to graduate. His average days consisted of waking at 5:30 am and getting up from bed around 6:00 am. He was allowed to spend all day outside his cell and met with a psychiatrist every 4 months. Mental status examination revealed he was alert and fully oriented. He was reasonably clean and wore prison garb. He demonstrated lip smacking behavior. His speech was impaired due to lack of teeth but otherwise normal. His thoughts were generally normal, linear and logical. He was a fairly good historian, concrete in his answers. He acknowledged auditory hallucinations of a soldier crying for help and flashbacks. He had some memory problems and difficulty abstracting. The examiner recited findings from prior VA examinations and other mental health evaluations. Most recent ones were done in August 1998. The diagnosis was Axis I PTSD, alcohol abuse in full sustained remission in a controlled environment, psychotic disorder NOS, and dysthymia. No Axis II diagnosis was made. His GAF was 55. The examiner's summary was that the Veteran has been previously diagnosed with PTSD and alcohol abuse and the criteria for these illnesses would not be reviewed. The examiner noted that he appears to have a psychotic illness that exists apart from his other diagnoses. Although one hallucination was apparently related to Vietnam trauma he also saw flashes coming by that did not seem related to military trauma. In addition, he has the typical flat affect of a psychotic individual and demonstrated more difficulty with abstraction that one might expect in the absence of either cognitive impairment or psychosis. His treatment over the years was noted to largely been antipsychotic medications. He appears to have chronic problems with depression and previous diagnoses of dysthymia which is probably the best match to his affective symptoms, especially since they've persisted. His current level of functioning was somewhat difficult to ascertain given his current controlled environment. For example he was not permitted to work in his current environment even if symptoms permitted this. He indicated he was given chores and sometimes does them without trouble but he usually opts out because he feels he should be paid. He did not indicate his symptoms prevented him from these duties. He was proud to state that he was graduating a one year course of faith based counseling and he had been able to sustain this treatment without interference from his symptoms. As he was in the general population of the prison, he did not appear to have any unusual mental health challenges to the prison staff. He did not report frequent disciplinary reprisals and seemed to manage his time fairly well. Regarding alcohol, he reported not drinking because he could not obtain it. If he had access he would use it. The examiner opined that for the foreseeable future he would not be able to work a routine job or maintain a life outside his very structured environment where he appears to be functioning at a reasonable level. Although he complains of ongoing symptoms, he's receiving treatment for these and they do not appear to hinder his daily functioning markedly. Therefore, at least until he is released from prison this evaluator would assess him as having a mental disorder whose symptoms require continuous medication. Once he is released his circumstances will certainly change and a reassessment would be indicated at that time. Continued treatment for his depression, psychosis and polysubstance abuse was recommended. The regulations pertaining to rating psychiatric disabilities were revised effective November 7, 1996. Under the revised regulations, the evaluation criteria have substantially changed, focusing 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. 38 C.F.R. § 4.16(c) has also been removed from the revised regulations. The Veteran's PTSD must therefore be evaluated under both the former and revised criteria, though the revised criteria may not be applied at any point prior to the effective date of the change. See 38 U.S.A. § 5110(g) (West 2002 & Supp. 2008); VAOPGCPREC 3-2000 (Apr. 10, 2000); VAOPGCPREC 7-2003 (Nov. 19, 2003). In considering the old and new criteria, there are three methods by which a Veteran can receive a 100 percent disability rating for service-connected psychiatric disability. First, a 100 percent schedular rating may be assigned under the applicable schedular rating criteria. Secondly, 38 C.F.R. § 4.16(c) provides that if the only compensable service-connected disability is a mental disorder rated 70 percent and it precludes substantially gainful employment, a 100 percent schedular rating is to be assigned. In effect, 38 C.F.R. § 4.16(c) precludes the assignment of a total rating based on individual unemployability under the objective criteria of 38 C.F.R. § 4.16(a). (in effect prior to November 7, 1996.). Thus, the third method is under 38 C.F.R. § 4.16(b) which provides that when unable to secure or follow substantially gainful employment due to service- connected disability a total rating will be assigned and all cases of Veterans who are unemployable from service-connected disability shall receive extraschedular consideration. In other words, the assignment of a total rating on an extraschedular basis is for consideration. Cathell v. Brown, 8 Vet.App. 539, 542 (1996). The severity of a psychiatric disability is based upon actual symptomatology, as it affects social and industrial adaptability. 38 C.F.R. § 4.130. The principle of social and industrial inadaptability as the basic criteria for rating disabilities for mental disorders contemplates those abnormalities of conduct, judgment, and emotional reactions which affect economic adjustment, i.e., which produce impairment of earning capacity. 38 C.F.R. § 4.129. Social integration is one of the best evidences of mental health and reflects the ability to establish (together with the desire to establish) healthy and effective interpersonal relationships. Poor contact with others may be an index of emotional illness; however, social inadaptability is to be evaluated only as it affects industrial adaptability. 38 C.F.R. § 4.129. Two of the most important determinants of psychiatric disability are time lost from gainful work and a decrease in the work efficiency. The examiner's classification of the disease as "mild," "moderate," or "severe" is not determinative of the degree of disability. The record of the history and complaints are only preliminary to the examination report. The report and the analysis of the symptomatology and full consideration of the whole history are the determining factors. 38 C.F.R. § 4.130. According to the General Rating Formula for Mental Disorders in effect since November 7, 1996, a 100 percent evaluation is warranted for the following: 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. A 70 percent evaluation is warranted for the following symptoms: 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 50 percent evaluation is warranted for the following symptoms: 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 effective work and social relationships. 38 C.F.R. Part 4, Diagnostic Code 9411 (2008). Under the "old" regulations pertaining to psychiatric disabilities in effect prior to November 7, 1996, a 100 percent evaluation 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; 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 the Veteran is demonstrably unable to obtain or retain employment. A 70 percent evaluation required that the ability to establish and maintain effective or favorable relationships with people be severely impaired and that the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 50 percent evaluation for PTSD is warranted under the old regulations where the ability to establish or maintain effective or favorable relationships with people are considerably impaired and by reason of the psychoneurotic symptoms the reliability, flexibility, and efficiency levels are so reduced as to result in a considerable industrial impairment. 38 C.F.R. Part 4, Diagnostic Code 9411 (in effect prior to November 7, 1996). In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the Court stated that the specified factors for each incremental rating were examples rather than requirements for a particular rating. The Court stated that the analysis should not be limited solely to whether the claimant exhibited the symptoms listed in the rating scheme. The Court also found it appropriate to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. The Board notes here that the RO initially reviewed the Veteran's claim under the "old" criteria in the original rating of July 1990 and statement of the case in November 1990 and has also reviewed the Veteran's claim under the provisions of the "new" diagnostic criteria as evidenced by supplemental statements of the case issued in February 1997, October 2005 and July 2008. The "new" diagnostic criteria is more favorable when considering an increased evaluation for psychiatric disorders from 50 percent to 70 percent. However, the "old" diagnostic criteria is more favorable when considering an increased evaluation for psychiatric disorders from 70 percent to 100 percent. Based on a review of the evidence, the Board finds that from initial entitlement the Veteran's PTSD symptoms more closely resemble the criteria for a 70 percent disability rating. This is shown as early as May 1989 when he was hospitalized with symptoms that included poor sleep, increased social withdrawal, anxiousness, depression, flashbacks and nightmares. He also had cognitive issues of decreased memory and concentration. His history at that time was also significant for recent suicide attempt 6 months earlier when he had been in jail. The treating doctor noted that the Veteran had obvious PTSD symptoms in addition to a severe character pathology. Records from 1990 reflect treatment both for his associated alcohol problems and his PTSD symptoms as shown in April 1990 and May 1990, where he was noted to be self medicating with alcohol, and the evaluator in May 1990 determined that he was not appropriate for alcohol rehabilitation, but rather needed ongoing psychiatric treatment for his PTSD symptoms, which continued to be the same as above. The test results taken in May 1990 revealed significant depression and anxiety and a tendency to withdraw from social contact. He was described as experiencing major depression, with his alcohol abuse periodically weakening ego controls. His court ordered hospital stay from June to September 1990 further revealed evidence of serious symptomatology, now shown to include hearing voices related to his Vietnam experience as well as flashbacks. However in this confined environment he is shown to have stabilized to the point that his GAF score was 75 at discharge. Nevertheless the VA examination and Social and Industrial survey done in June 1990 which documented the same symptoms as described above including auditory hallucinations, continued to describe severe symptomatology. It was noted that he had overlapping problems making it difficult to distinguish the degree of contributing limitations for PTSD, and he clearly had deficiencies related to his service-connected condition and overall should be considered severely restricted socially and industrially. Under the circumstances, VA is required to resolve all doubt in his favor and consider his psychiatric symptoms as due to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998); 38 C.F.R. § 3.102. Thus his PTSD symptoms are described as severely restricting him socially and industrially by the VA in June 1990. Thus his symptoms from 1989 to 1990 reflect a severity that meets the criteria for a 70 percent rating. The evidence thereafter, to include the repeated VA examinations from June 1992, September 1994 where the examiner found very little change in his symptoms, and the April 1996 examination, in addition to the treatment records up to 1998 likewise reflect continued severe symptomatology. Repeatedly in these records and examination reports, he is shown to suffer from persistent auditory hallucinations, and have continued sleep problems and nightmares, along with recurrent flashbacks. Objectively this was manifest at times with mental status examinations noting him to appear quite dejected and talking in an abnormal tone of voice as reported in June 1992, with poor grooming and dirty clothes and an overall unhappy demeanor noted in September 1992. He also had persistent problems with suicidal ideations as shown in July 1997 when he was again hospitalized with suicidal thoughts. His symptoms up to his incarceration in November 1998 continued to reflect serious symptomatology, although his GAF score fluctuated from 50 in July 1997 to 60 in August 1998. The records obtained from the correctional facility where the Veteran is housed continues to show that from June 2002 to February 2007 he has continued to manifest severe PTSD symptoms including persistent auditory hallucinations, flashbacks, intrusive thoughts, paranoid and delusional thoughts, and depressive or dysphoric mood. These symptoms as described above continued to reflect symptomatology that more closely resembles the criteria for a 70 percent rating for PTSD. Finally the report from the VA examination done in April 2008 despite the relatively high GAF score of 55, continues to be suggestive of severe symptomatology as shown by his subjective reports of daily nightmares and flashbacks, his dislike for closed spaces or having people behind him, his being a loner, being jumpy at loud noises and occasional suicidal ideations. Objectively he was noted to have problems with his memory and cognition. The examiner admitted that given the Veteran's current status of incarceration, it was difficult to ascertain his current level of functioning. However based on this examination and the longitudinal review of his medical history from the pendency of this claim, the evidence more closely resembles the criteria for a 70 percent rating dating back to initial entitlement. See Maurhan, supra. However the Board finds that the evidence does not more closely resemble the criteria for a 100 percent rating under either the old or new criteria. The evidence as described above does not reflect total occupational and social impairment as contemplated by the new criteria under the General Rating for Mental Disorders nor does it reflect evidence of symptoms resulting in virtual isolation in the community with totally incapacitating psychoneurotic symptoms resulting in profound retreat from mature behavior and a demonstrated inability to maintain or retain employment as contemplated by the old criteria for a 100 percent rating. Although there are instances of decompensation shown such as the suicidal attempts described above, overall, his symptoms, particularly when well controlled by medication and in an environment where he is abstinent from alcohol are shown in the records overall to reflect an adequate ability to participate in mainstream social and occupational activities, that would not be anticipated by the 100 percent rating in either criteria. He has been able to maintain marital and family relationships in spite of his severe personal and legal problems. He also participated in volunteer work and church activities. Occupationally he is shown to have had long term employment to include entrepreneurial employment where he owned a cleaning company for up to 10 years, up until he was hospitalized by Court Order in 1990 pursuant to his arrest. Although the April 1996 VA examination suggested that he lost the business due to drinking heavily, the bulk of the evidence to include the most recent VA examination of April 2008 and the records from 1990 suggested that he lost this business secondary to his arrest. He further is shown to have had employment after this business failed, to include working as a painter/maintenance man and in pizza delivery but lost these jobs due to outside causes rather than his PTSD symptoms. The only job loss clearly attributable to his PTSD was described as the job at the VA medical facility shortly after his return from Vietnam, when he had a violent startle reaction to a patient. While he is presently precluded from employment by virtue of his incarceration, he is shown to be engaged in productive activities including participation in optional counseling and in household chores. Thus, there is no basis for awarding a 100 percent rating to include consideration of the old criteria and the new criteria as well as the three methods by which a Veteran can receive a 100 percent disability rating for service-connected psychiatric disability based on unemployability, as described above. In sum, with application of reasonable doubt, the Board finds that the criteria for a 70 percent rating, but no more for PTSD from initial entitlement is met. ORDER A rating of 70 percent, but no more, for PTSD with associated alcohol abuse is granted, subject to the laws and regulations governing the award of monetary benefits from initial entitlement. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs