Citation NR: 9726244 Decision Date: 07/29/97 Archive Date: 08/06/97 DOCKET NO. 94-15 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an increased evaluation for post traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. INTRODUCTION The veteran served on active duty from October 1967 to November 1969. This appeal arose from an October 1992 rating action of the Jackson, Mississippi, Department of Veterans Affairs (VA), Regional Office (RO), which denied an increased evaluation for the service-connected PTSD, which was assigned a 10 percent evaluation at that time. This rating was confirmed and continued by a June 1993 rating action. An October 1993 rating decision increased the evaluation for the PTSD to 30 percent. Rating actions issued in April and August 1994 and July 1995, confirmed and continued the rating assigned to the service-connected PTSD. In February 1997, this issue was remanded for additional development, following which a rating action was issued in May 1997 which continued the 30 percent disability rating. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that his PTSD is more disabling than the current disability evaluation would suggest. He asserted that he suffers from frequent nightmares and flashbacks, a startle response, anxiety and depression. Therefore, he believes that this disability should be assigned a higher evaluation. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran's claims file. 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 a finding of entitlement to a schedular 70 percent disability evaluation for the service-connected PTSD, and supports the assignment of a total disability evaluation under the provisions of 38 C.F.R. § 4.16(a) (1996). FINDINGS OF FACT 1. The veteran’s PTSD is manifested by occupational and social impairment, with deficiencies in most areas, including work and personal relationships due to such symptoms as suicidal ideation, persistent depression affecting his ability to function effectively, impaired impulse control, difficulty adapting to stressful circumstances (including work settings) and an inability to establish and maintain effective relationships. 2. The veteran is unable to obtain or maintain substantially gainful employment because of the service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for an increased evaluation for the service- connected PTSD are met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, Code 9440 (1996). 2. The criteria for a total disability evaluation have been met. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 4.16(a) (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. It is also found that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which should be obtained. Therefore, no further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1996). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1996). VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which 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. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. The rating criteria for evaluating psychoneurotic disorders was changed effective November 7, 1996. The new rating criteria is as follows: 100 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 and place; memory loss for names of close relatives, own occupation, or own name; 70 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; 50 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; 30 percent: 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) 10 percent: occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication; 0 percent: a mental condition has been formerly diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 38 C.F.R. Part 4, Code 9440 (1996). Moreover, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (1996). The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). The record revealed that the veteran’s service-connected PTSD was assigned a 10 percent disability evaluation in October 1992. In October 1993, the rating was increased to 30 percent, based on a September 1993 VA examination which showed that he was extremely tense, with constant crying. His speech was cluttered at times and he avoided reminders of the war. He indicated that his flashbacks were more frequent and he was markedly irritable. There was a marked startle response and occasional suicidal thoughts. During a VA examination conducted in June 1995, the veteran appeared depressed and cried throughout the interview. He avoided reminders of the war and reported intrusive thoughts once or twice a day. He also had flashbacks and nightmares one to two times per week. He also suffered from an exaggerated startle response, and had a depressed mood. The diagnoses were PTSD and dysthymic disorder. A Global Assessment of Functioning (GAF) Score of 50 was assigned. The veteran underwent psychological testing in March 1997. He was casually dressed and his grooming was noted to be fair. The examiner commented that rapport was very difficult to establish; he was angry and suspicious. When he was asked even remotely about the war, he looked down, trembled, and sobbed uncontrollably. His answers were vague, but the examiner did not feel that this was an attempt to avoid the questions; rather, it appeared to be a reflection of his vague and confused thought processes. He would become so agitated by attempts to question him about Vietnam that the examiner ceased trying to ask him about the war. The MMPI was deemed to be invalid, constituting a “cry for help,” although the examiner commented that the clinical picture was inconsistent with malingering. The psychologist noted that the veteran displayed diminished alertness consistent with attentional deficits associated with anxiety and depression. He was oriented and his thought processes were logical and well-connected; his mood was congruent. He reported a long history of flashbacks and auditory hallucinations for the past year. His affect was angry and hostile. He complained of poor sleep, and reported avoidance of war stimuli, feelings of detachment from others, an inability to have loving feelings, anger outbursts and problems with concentration. He was noted to have a history of impulsive, explosive outbursts of anger in which he injured others (his last fight was two weeks before the examination). His long-term memory was fair, although his immediate and delayed recall were poor. He was able to clean himself and his home, but he was unable to complete tasks in a reasonable period of time. The diagnoses were PTSD; secondary depression, single episode with psychotic features superimposed over dysthymic disorder. His GAF Score was 31; the examiner commented that the veteran had an inability to function in almost all areas (depression, avoidance of family and friends, unable to work and frequent fights). His psychological impairment would severely affect his capacity to perform work-related behaviors, and would severely interfere with relationships with co-workers. A VA psychiatric examination of the veteran was conducted in April 1997. The examiner noted that the veteran appeared to be tense and depressed. He found it difficult to discuss his wartime experiences and indicated that he never watched war movies. He reported that he had intrusive thoughts four times a day, which was more often than in the past. He also indicated that his nightmares, which now occurred four times a week, were more frequent and more severe. He experienced flashbacks twice a month. The examiner commented upon the veteran’s marked depression, which was worse that when the examiner last interviewed him in 1995. His thinking and concentration were also worse than the last examination. He reported having suicidal thoughts approximately three times a week. He often brooded on death. The diagnoses were PTSD and major depression with psychotic features. He assigned a GAF Score of 40. The examiner then commented that the veteran cannot establish or maintain effective work and social relationships. This was supported by his present empty life. The GAF score assigned during this examination was somewhat higher than that assigned by the psychologist the previous month. It was commented that this was so because the psychiatrist did not feel that the veteran was so influenced by his hallucinations as to be incompetent (however, it is noted that the psychologist had assigned the lower rating because of the veteran’s inability to function in almost all areas, not because of the influence of any hallucinations). After a careful review of the evidence of record, it is found that entitlement to a 70 percent disability evaluation for the veteran’s service-connected PTSD is warranted. Initially, it is noted that the examiner had commented in April 1997 that the veteran’s symptoms were worse than when he was examined in 1995. It was stated that his intrusive thoughts and nightmares were more frequent and intense. His depression had also worsened. Clearly, there is an indication that the veteran’s condition had deteriorated since the 1995 evaluation. Moreover, the level of his symptomatology more closely matches that contemplated by the 70 percent evaluation. Specifically, his work and social relationships are impaired by persistent suicidal ideation, which was noted to occur at least three time a week; near- continuous depression that affects his ability to function either socially or in the workplace; impaired impulse control, as was noted by his involvement in frequent fights; difficulty in adapting to stressful situations, such as a workplace, as was noted by the examiner’s comments that his ability to engage in workplace behaviors was severely impaired; and by his inability to establish and maintain effective relationships (he had indicated that he only has one friend, and he reported rarely seeing family members). Therefore, it is found that the veteran’s disability picture more nearly approximates the criteria of the 70 percent evaluation. However, it is found that the veteran is not entitled to a 100 percent schedular evaluation. He has not demonstrated gross impairment in thought processes or communication (in fact, he has been noted to be logical and coherent); he has not exhibited grossly inappropriate behavior; he is not unable to perform the activities of daily living; there has been no disorientation as to time or place demonstrated; and there is no memory loss for names of close relatives, own occupation or own name. According to 38 C.F.R. § 4.16(a) (1996), total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Given the grant of the 70 percent disability evaluation for the service-connected PTSD, the veteran clearly meets the percentage standards of the above-noted regulation. He has a combined disability rating of 70 percent for his service- connected disabilities. Moreover, he is unable to secure or maintain substantially gainful employment because of his service-connected PTSD. The VA examiners clearly stated that he is not able to maintain effective work relationships and that his psychological impairment severely impairs his ability to engage in work-like behaviors. Therefore, it is found that the veteran meets the criteria for an award of a total disability evaluation under the provisions of 38 C.F.R. § 4.16(a) (1996). In conclusion, it is found that the evidence supports a finding of entitlement to a total disability evaluation for the service-connected PTSD. ORDER A total disability evaluation under the provisions of 38 C.F.R. § 4.16(a) for the service-connected PTSD is granted, subject to the laws and regulations governing the award of monetary benefits. L. M. BARNARD Acting Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) 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 & Supp. 1996), 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, 102 Stat. 4105, 4122 (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. - 2 -