Citation Nr: 0300518 Decision Date: 01/10/03 Archive Date: 01/28/03 DOCKET NO. 99-18 437 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial rating in excess of 30 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran had active military service from April 1970 to April 1973. He has been represented throughout his appeal by the Vietnam Veterans of America. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a rating decision of March 1999, by the Buffalo, New York Regional Office (RO), which granted service connection for PTSD and assigned a 10 percent disability rating, effective August 18, 1998. The notice of disagreement with that determination was received in April 1999. The statement of the case was issued in May 1999. Additional medical records were received in June and July 1999. Subsequently, a rating action in August 1999 increased the evaluation assigned for PTSD from 10 percent to 30 percent, effective August 18, 1998. A supplemental statement of the case was issued in August 1999, and the substantive appeal was received in late August 1999. The Board notes that the August 1999 increase of the rating for PTSD from 10 percent to 30 percent represented a grant of benefits. However, the United States Court of Appeals for Veterans Claims (Court) has held that a "decision awarding a higher rating, but less than the maximum available benefit . . . does not . . . abrogate the pending appeal . . . ." AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, the veteran's appeal of the assigned disability evaluation for his service-connected PTSD continues. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's service-connected PTSD is manifested by ongoing symptoms of depression, nightmares and difficulty sleeping, flashbacks, irritability, hypervigilance, intrusive thoughts, panic attacks, obsessive rituals, problems with anger control, mistrust, difficulty with interpersonal relationships, and Global assessment of functioning (GAF) scores ranging between 45 and 55, resulting in severe social and occupational impairment with reduced reliability and productivity. 3. The veteran's PTSD is not productive of 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; and memory loss for names of close relatives, own occupation, or own name. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the veteran, the criteria for an initial 70 percent for service- connected PTSD are met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Code 9411 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual background. A private hospital report, shows that the veteran was admitted to a hospital in November 1988 for treatment of alcohol dependence and other substance dependence; he underwent detoxification. The veteran was afforded a VA compensation examination in December 1998, at which time he reported being stationed in Vietnam from October 1970 to October 1971. The veteran reported that he was currently having difficulty maintaining relationships, and was experiencing nightmares, flashbacks, and difficulty with friends. He said that he was only able to work because he worked with a very small group of people and they "pretty much" worked by themselves. He reported ongoing depression, intrusive thoughts about Vietnam, and being easily startled. The veteran noted that he had a "short fuse" and felt terrible about his drinking days and being violent with his children; he specifically recalled one incident when he threw his daughter across the room and his son picked up his 357 magnum. It was noted that the veteran was receiving psychiatric counseling; he saw a therapist once a week individually, and with his girlfriend with whom he lived. The veteran reported that, although he had been working at Kodak for 25 years, his intense anger and rage had gotten him in trouble at work on several occasions. He noted that he had been "written up" on several occasions because of confrontations with co-workers. He reported no social life, and an inability to tolerate crowds. The veteran indicated that he had problems with nightmares, interrupted sleep, intrusive and recurrent thoughts of Vietnam, and the presence of Orientals. The veteran also reported experiencing flashbacks, avoidance of activities and reminders of Vietnam, started response, and hypervigilance. The veteran indicated that he became panicky around crowds. He stated that he only felt safe with a gun nearby. The veteran reported that he often felt like crying; as a result, he occasionally developed suicidal ideation and death wishes. He complained of having an intense anger that caused him to explode verbally at word and at home; in fact, his anger led to his divorce. On mental status examination, it was observed that the veteran was very tense and anxious throughout the interview. When Vietnam issues were discussed, he appeared sad and absent minded as if absorbed in his own memories. His speech was coherent and relevant. His mood was anxious and angry. His cognitive functioning was average. Insight and judgment were fair. The pertinent diagnosis was PTSD, due to combat-related stress; a GAF score of 55 was assigned. Received in March 1999 was an excerpt from a book entitled "Sappers in the wire: The life and death of firebase Mary Ann." This book chronicles the attack on firebase Mary Ann in Vietnam, and specifically mentions the veteran's participation in the combat and defense of the firebase. A report from the Rochester Vet Center, dated in June 1999, indicates that the veteran had received therapy from the center during the period from December 1988 through June 1989; it was noted that although the clinical information for that period was not available, it confirmed that the focus was treatment for substance abuse. The report further noted that the veteran's second therapeutic involvement with the center occurred during the period from August 1998 to the present. When seen in 1998, he presented a history of problematic coping mechanisms that appeared to be linked to his combat experiences in Vietnam. The veteran also reported growing distant from his partner over the past two years. It was noted that hiss predominant affect was depressed, angry and detached; he reported symptoms of sleep disturbances, rage reactions, nightmares, anxiety, mood swings, and severe depression. The veteran indicated that he developed exacerbation of his symptoms following his viewing of the film "Saving Private Ryan." It was noted that the Mississippi Scale for Combat Related PTSD results were diagnostically very high. The veteran complained of difficulty falling or staying asleep, irritability, outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startled response. The veteran indicated that he had no friends and did not engage in any social activities. He presented as guarded and hostile if addressed by someone he did not know. He was divorced and described his relationship with his children from that marriage as distant, but still involved. There was an absence of any joy in his life. It was noted that the veteran was only able to function in the workplace because it was secure and he knew the rules. VA treatment reports reflect that the veteran continued to receive counseling on a regular basis for PTSD. It was noted that he received individual counseling because of his dislike for groups. In February 2002, it was noted that "his daughter had put him on medical leave." He reported that he had been experiencing a lot of stress recently and had been having outbursts at work and at home. It was further noted that the veteran also had situational stress in the family. The examiner noted that the veteran had the full spectrum of PTSD symptoms, which included nightmares, flashbacks, intrusive thoughts, depression, anxiety, discomfort around a lot of people and anger. He was disoriented in all three spheres. His insight and judgment appeared to be fair. It was further noted that the veteran was experiencing constant stress due to situational factors and his depression had been worse, but with the medication he was felling better. The veteran was afforded a general VA examination in September 2002, at which time he reported having upsetting dreams and memories of combat experiences. He also reported having continual dreams of an incident that occurred at firebase Mary Ann. He indicated that he frequently experienced feelings of depression, anxiety and panic attacks; he could not tolerate the sounds of helicopters or attend outdoor functions that involve firecrackers or explosions. It was noted that interpersonal relationships seemed to have been significantly impaired by his combat experiences. The veteran reported having adjustment problems at work, especially with respect to dealing with people of Asian descent. The veteran also reported having verbal altercations with others, including his neighbors. At night, he walks around the perimeter of his home with a gun. It was noted that, although the veteran was laid off work for 6 weeks, he was still currently employed at Kodak. The examiner noted that the veteran seemed to have been significantly impacted by his combat experiences while stationed in Vietnam. He reported having flashback problems, which lead to irritable mood and inability to get along with his peer group in his work environment. However, the veteran has found a way to hold on to his place of employment for nearly 30 years. The examiner further observed that the veteran had experienced abuse as a child, the death of a sibling, which he viewed as being depressive. The veteran's impairment was being seen as mild. He was currently being given medication, which he appeared to be responding quite positively to. The veteran's social impairment was seen as moderate. He was also afforded a special psychiatric examination in September 2002, at which time it was noted that the veteran continued to complain of having nightmares at least once per week; he had difficulty falling and staying asleep. The veteran also reported having intrusive memories of Vietnam several times per day. He had flashbacks approximately once per month, during which he goes off into a trance. He noted intense psychological distress as well as emotional distress at certain triggers. The veteran recalled being at work at Kodak and having a visiting Chinese delegation; he stated that he couldn't stand to be around Asians, so he tries to leave when they are visiting. The presence of people of Asian descent cause him to become angry, nervous and jumpy. The veteran indicated that a number of situations tend to trigger panic attacks, such as the presence of Asians. It was noted that the veteran was very angry and easily explodes; his girlfriend and her children know to avoid him when he is angry. He felt that his anger destroyed his first marriage and was seriously damaging his current relationship. The veteran indicated that he continued to have problems with his temper and violent behavior; he reported having an altercation with a neighbor in 1974 during which he pulled a gun. Most recently, the veteran reported an ongoing feud with a neighbor who complained about his dog barking. He proceeded to harass the neighbor. The veteran also reported being hypervigilant; he explained that he is up at night checking the security of the house and the yard. He reported sleeping with a loaded weapon in his nightstand. The veteran reported having no significant friendships, and he "goes off the handle" with his girlfriend and her children. He also reported occasional suicidal ideation. On mental status examination, the veteran was pleasant and cooperative. There was impairment in his judgment; although he knew that harassment of his neighbor was unacceptable behavior, he had no remorse about what he had done. He was not paranoid, but he believed that most of his neighbors were out to get him. No psychotic phenomena, delusions, or hallucinations were noted. He did have occasional passive suicidal ideation. His memory was described as adequate for the examination, but he noticed that he relied on a built in alarm system to remember to do his job properly. The veteran also had panic attacks and depressive symptoms. His sleep was impaired. The examiner stated that the veteran had symptoms of major depression, which were decreased due to medication. The examiner noted that earlier in the year the veteran had been unable to work due to a combination of PTSD and depression. The examiner also stated that the veteran continued to be abstinent from alcohol and other drugs. The veteran felt that overall his PTSD had not changed. The examiner stated that given the veteran's lack of remorse for his harassing behaviors, an additional diagnosis of antisocial personality disorder was warranted. The pertinent diagnoses were PTSD, chronic and severe; major depression, recurrent, in partial remission; alcohol dependence in full sustained remission, and adult antisocial behaviors, rule out antisocial personality disorder. A GAF score of 45 was assigned. II. Duty to assist. During the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was enacted, which provides new statutory requirements regarding notice to a veteran and his representative and specified duties to assist in the development of his claims. In this case the Board has afforded the veteran an examination. All known treatment records have been associated with the claims folder. The RO informed the veteran of the criteria for a higher evaluation for PTSD in the statement and supplemental statements of the case. This information should have put him on notice of the evidence needed to substantiate his claim. In November 2002 the Board sent the veteran a letter inviting him to submit additional evidence. He indicated that he had no additional evidence to submit. Additionally, the veteran has not argued that he meets the criteria for a 100 percent evaluation, and the undisputed record shows that he is gainfully employed. Instead, his representative has argued that he meets the criteria for a 70 percent evaluation. Since this decision grants that evaluation, the veteran does not require further assistance to substantiate his claim. Wensch v. Principi, 15 Vet App 362 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). III. Legal analysis. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2002). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2002). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations can be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1 (2002). The veteran's PTSD is rated under Diagnostic Code 9411. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 30 percent disability evaluation is warranted for PTSD that is productive of occupational and social impairment with an 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, or mild memory loss (such as forgetting names, directions, and recent events). A 50 percent disability evaluation encompasses disability manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation requires 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 adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted when there is 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 of names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. In addition, 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. 38 C.F.R. § 4.126(a) (2002). 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. Id. Under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), a GAF score of 51 to 60 represents moderate symptoms, with moderate difficulty in social and occupational functioning. However, a GAF score of 41 to 50 signifies serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). And a GAF score of 31 to 40 signifies some impairment in reality testing or communication, or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., where a depressed man avoids friends, neglects family, and is unable to work). American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM), 32 (4th ed.) (1994) (DSM-IV); 38 C.F.R. §§ 4.125, 4.130 (2002). It has been contended by and on behalf of the veteran that his PTSD symptomatology, which is currently rated 30 percent disabling, is severe enough to warrant an evaluation of 70 percent at least. The record appears to suggest that there is some question as to the cause of the veteran's interpersonal and industrial impairment; that is, which of the veteran's psychiatric symptoms are due to his service-connected PTSD and which are due to nonservice-connected disabilities such as depression, substance abuse or antisocial personality disorder. The Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In this case, there is no clear delineation between psychiatric symptomatology which is due to PTSD and that which is not. Consequently, the Board will consider all of the veteran's psychiatric symptomatology in evaluating the service- connected PTSD. The evidence shows that his service-connected psychiatric disability has been consistently shown to include a depressed and anxious mood, anger, suicidal ideation, and irritability, all of which have significantly impaired his relationships at home and at work. These symptoms were noted at his VA examination in December 1998. At that time, it was also reported that the veteran experienced nightmares, flashbacks, intrusive memories of Vietnam, and only felt safe with a gun near him. Although that examiner assigned a GAF score of 55, the examiner described a number of symptoms consistent with a 70 percent evaluation. Later records show that the veteran continued to receive individual counseling for PTSD, with only minor improvement with medication. The clinical findings reported in February 2002 as well as during the VA examination in September 2002 reflect that the veteran's service-connected psychiatric disability is characterized by occupational and social impairment with deficiencies in most areas, including work and family relations. His nightmares, sleep problems, flashbacks and intrusive thoughts interfere with both his social relationships and his work as do his irritability and problems with anger control. Further, he has been shown to have near-continuous derepression associated with his PTSD, which affects his ability to function effectively. Although he has not shown illogical, obscure or irrelevant speech, or spatial disorientation, examiners have noted the veteran experiences panic attacks from being around people of Asian descent, which causes stress at work; he also continued to experience problems with anger outbursts, which also causes problems with his personal relationships. Moreover, the record indicates that although it is not as frequent, the veteran continues to experience suicidal ideation. He continues to have no friends, and "flip out" with his girlfriend and her children. After reviewing this history, the recent VA examiner assigned a GAF of 45. As such, after resolving all doubt in the veteran's favor, the Board concludes that a 70 percent evaluation is appropriate for his service-connected PTSD. The recent examiner reported that the veteran's symptoms had not significantly changed over time. Therefore the 70 percent evaluation is granted effective from the date of service connection, August 18, 1998. The Board concludes that the veteran's PTSD does not produce total occupational and social impairment. The veteran continues to be gainfully employed and is maintaining a social relationship, albeit impaired, with his girlfriend and her children. The criteria for a 100 percent evaluation are therefore not met. The competent medical evidence of record does not demonstrate that the veteran exhibits a gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives or his own name. The veteran himself has not reported such problems. ORDER Entitlement to a 70 percent evaluation for PTSD is granted, effective August 18, 1998. Mark D. Hindin Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.