Citation Nr: 9831636 Decision Date: 10/26/98 Archive Date: 11/02/98 DOCKET NO. 97-18 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an evaluation in excess of 30 percent for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, spouse, and sister-in-law ATTORNEY FOR THE BOARD Carole R. Kammel, Associate Counsel INTRODUCTION The veteran served on active duty from November September 1965 to August 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichitia, Kansas, which granted service connection for post- traumatic stress disorder (PTSD) and assigned a 10 percent evaluation, effective March 5, 1997. Subsequently, in a November 1997 Supplemental Statement of the Case, the RO assigned a 30 percent evaluation to the service-connected PTSD. As the 30 percent evaluation is less than the maximum available under the applicable diagnostic criteria, the veteran’s claim remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected PTSD is more severely disabling than that currently assigned as a result of such symptoms as intrusive thoughts, hallucinations, delusions, sleep disturbance, angry outbursts, threats of violence towards others, suicidal ideation, hypervigilance, social isolation and difficulty concentrating. The veteran maintains that although he is able to work, he can only work alone without any contact with other individuals. He contends that he has no social interaction even within his own family. As a result of such symptoms, a favorable determination is sought. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), 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, resolving all doubt in the veteran’s favor, the evidence supports a 50 percent evaluation for the service-connected PTSD. FINDING OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The veteran’s PTSD is currently manifested by objective evidence of suicidal and homicidal ideations, continuous depression, anxiety, impaired memory, social isolation with no evidence of total occupational impairment as the veteran works full-time. CONCLUSION OF LAW The schedular criteria for a 50 percent evaluation for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.130, 4.132, Diagnostic Code 9411 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Applicable laws and regulations The Board finds that the veteran’s claim for an evaluation in excess of 30 percent for PTSD is plausible and is capable of substantiation and is therefore well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A claim is well grounded where the claimant asserts that a higher rating for a service-connected disability is justified due to an increase in severity. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-32 (1992). The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required in order to comply with VA’s duty to assist a claimant in developing the facts pertinent to his claim. See 38 U.S.C.A. § 5107(b) (West 1991). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1998). Separate diagnostic codes identify the various disabilities. The evaluation of service-connected mental disorders is based upon the resulting occupational and impairment under 38 C.F.R. Part 4,§ 4.125-4.130 (1996, as amended). Where entitlement to service connection has already been established, and an increase in the disability rating is the issue, the present level of the disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if 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 (1998). The Board notes that that the veteran’s service-connected PTSD has been evaluated under the new rating criteria pertaining to psychiatric disorders which became effective by regulatory amendment effective November 7, 1996. Substantive changes were made to the schedular criteria for evaluating mental disorders, formerly as set forth in 38 C.F.R. §§ 4.125-4.132 (1996). The new criteria has been redesignated as 38 C.F.R. §§ 4.125-4.130 (1997). See 61 Fed. Reg. 52695-52702 (1996). Under 38 C.F.R. § 4.130, Diagnostic Code 9411 (1997), effective November 7, 1996 and subsequently, PTSD which 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), warrants a 30 percent disability evaluation. Under the newly-revised criteria, a 50 percent disability evaluation encompasses PTSD 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 disability evaluation is warranted for PTSD manifested by 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); or the inability to establish and maintain effective relationships. A 100 percent disability evaluation is warranted for PTSD which is 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; or memory loss for the names of close relatives, own occupation, or own name. II. Factual Background The veteran was most recently examined by VA in March 1997. During the examination, it was reported that the veteran was in a troubled marriage and that he had three children. He indicated that he was a high school graduate. The veteran’s substantive military history was noted. The veteran reported having a variety of jobs since his discharge from service and that he had difficulty getting along with his supervisors because he resented being told what to do. The veteran reported that he currently worked at the Kansas Department of Transportation as a materials and research center storekeeper. He related that he had continued difficulty getting along with people on the job, but that he enjoyed the fact that he was able to work alone in an encaged area as it made him feel safe. It was also noted that the veteran enjoyed the hectic pace of his job and the fact that he rarely saw his supervisor. During the March 1997 examination, the veteran complained of feeling nervous and of having nightmares and distressing dreams of combat in Vietnam. He indicated that he had marital discord. The veteran also reported that he had a camper on his property so that he had a place to go when he felt isolated. The veteran also reported that he would relive his past Vietnam experiences during waking hours. For example, he would sometimes hear the birds and the water and feel as if he was back in Vietnam hiding from the enemy. He reported that since he had returned from service, he had not been involved with other veterans. The veteran related that he did not have any friends. He stated that would avoid combat movies. He reported that he did not feel like working, but that he needed the money. The veteran indicated that his only enjoyment at that time was babysitting his grandchildren. He related that he was unable to show affection towards anyone. The veteran reported having episodes of insomnia, frustration, anxiety, exaggerated startled response (i.e. he would “fly off the bed and hit the wall or floor” when he heard a train) and having low energy. On examination in March 1997, the veteran’s speech was initially soft and halting. When he was asked if he suffered from hallucinations, he stated, “I see things move out of the corner of my eye mostly when sitting alone.” He described the object as “shadows.” He stated that the shadow used to be a regular occurrence but that they had decreased in frequency; however, he was unable to quantify their occurrence. The veteran also reported that he often felt that someone was around when he was left alone. He stated that if he backed up against the wall, it would help him calm down and feel safe. The veteran described his mood as lonely. His affect was blunted. The veteran reported that he often wished that he was dead, particularly during the six-month separation from his wife. The veteran reported having suicidal ideation at times with a plan of jumping from a bridge; however, he stated that his religious beliefs kept him from acting on it. He also stated that his suicidal ideation was decreasing and that such thoughts would only occur one to two times per month. He reported having thoughts of harming others. In one instance, he had thought about “bashing someone’s head in when they make me mad.” He related that he would keep a stick by the door at work for protection, especially from one male work colleague whom he believed was against him. The veteran stated that he had not acted on such thoughts of harming the work colleague partially because he feared he would lose his job. It was noted that the veteran had made peace with the male colleague and that since then, he had felt more secure at work. The veteran also reported that he had thoughts of hitting or killing his wife during their separation. However, he denied having any current thoughts of harming her or others. During the March 1997 VA examination, the veteran was alert and oriented to person, place, time and situation. Although he was able to remember the current president of the United States, he was unable to remember further presidents for some time. He repeated three of three words immediately and one of three after five minutes. The veteran was able to remember the other two words with prompting. He completed serial 7s slowly with one error. After four calculations, the veteran stated that he could not continue as “I can’t concentrate.” He abstracted appropriately to proverbs and similarities. His judgment was intact to formal testing and his stated goal for treatment was to “try to begin to relax my mind.” The Axis I diagnoses for the veteran were: severe PTSD with depression, history of alcohol abuse in remission and a history of nicotine dependence. The veteran was given a GAF score of 40. At an August 1997 hearing at the RO, the veteran testified that he was on medication and that he was taking a sleeping pill. The veteran reported that he was going to group therapy and that he felt it was helping. He testified that the medication made him calm. He related that he currently worked for the State of Kansas and that he had had problems with his supervisors and co-workers at various jobs. The veteran indicated that he was able to maintain his job because he worked alone in a basement warehouse where he did not interact much with others. He testified that he did not have any real social relationships even within his own family and that he had a poor relationship with his wife. The veteran also reported having sleeping problems, irritability and difficulty remembering names, even those of his relatives. The veteran’s spouse testified that the veteran went to visit her sister and after having some beers, he thought the Viet Cong were attacking him. She reported that the veteran used to wake up at night and scream. The veteran’s wife testified that the veteran isolated himself even from his family. The veteran’s sister-in-law testified that the veteran came to visit her and that he started shaking and that she had to take him to an Air Force Base. VA outpatient reports, dating from 1996 to 1997, received in October 1997, reveal that the veteran worked as a warehouseman/storekeeper with the Kansas Department of Transportation and that he was able to remain employed because he worked in isolation. Prior to his current position, the veteran indicated that he had worked at the Kansas Neurological Institute for 15 years in the same capacity as his current job. It was noted that the veteran participated in group therapy and that he continued to suffer from intrusive thoughts of the war, feelings of irritability, anxiousness, difficulty with concentration, hyperalertness, increased startled response, depression, hypervigilance ( the veteran kept a shotgun and a rifle in a shed behind his home), difficulty concentrating, hallucinations, anxiety and sleep problems. On examination in January 1997, the veteran’s thought processes were coherent and goal directed and his similarities and proverbs were abstract. His immediate and recent recall were mildly impaired as he was able to remember four of five items both times. His judgment was intact to structured questions; however, his concentration was grossly impaired. The veteran’s knowledge was noted not to have been commensurate with his level of education. His insight was non-existent. The veteran’s affect was sad, anxious and congruent to thought content. The Axis I diagnoses were: (1) chronic severe PTSD; (2) major depression; (3) alcohol abuse. The veteran had a Global Assessment Functioning Score was 55, which was the highest it had been in the previous year. The veteran was placed on anti-depressant medication. In July 1997, the veteran continued to have severe conflicts with his wife and children. III. Analysis In applying the amended regulations to the evidence of record and in reviewing the more recent clinical evidence of record, as summarized above, and resolving all reasonable doubt in the veteran’s favor, the Board finds that the medical evidence supports a 50 percent evaluation for the service- connected PTSD. The most recent medical evidence of record reveals that the veteran has continuously sought outpatient treatment for his PTSD and that he is on anti-depressant medication for his psychiatric disability. Such records also reveal that the veteran continued to suffer from ongoing intrusive and distressing thoughts, impaired memory (forgets the names of family members), outbursts of anger and threats of violence towards others (i.e. threats towards his spouse and fellow co-worker), sleep disturbance, loss of energy and hypervigilance (storing guns and rifles in a shed). In addition, although the veteran was employed with the Kansas Department of Transportation, such employment was limited in that he could only work in an isolated environment without any social interaction. Further, during his August 1997 hearing and on various VA examinations and outpatient reports, the veteran indicated that he did not have any close friends or any real social relationships even within his own family. In fact, recent VA outpatient reports show that the veteran continued to have severe conflicts with his wife and children. Therefore, under the amended regulations pertaining to rating psychiatric disorders which became effective after November 7, 1996, the Board concludes that a 50 percent rating is warranted for the service-connected PTSD. However, the Board finds that the evidence does not support at least a 70 percent evaluation for a nervous disorder under the revised rating criteria (Diagnostic Code 9424). The Board observes that the examiner who conducted the March 1997 VA examination diagnosed the veteran as having “severe” PTSD, but the overall findings from this examination, including the GAF score of 40, are indicative of a PTSD which is less than severe. Specifically, the examination revealed no impairment of judgment, neglect of personal appearance and hygiene, or speech deficiencies. While the veteran reported suicidal thoughts, he indicated that such ideations were decreasing and that such thoughts only occurred one to two times a month. The Board observes that the findings from this examination reflect a significant increase in PTSD since the veteran was examined during an outpatient visit in January 1997. However, the findings from this examination as a whole do not warrant a 70 percent evaluation of the veteran’s PTSD under the newly revised criteria of Diagnostic Code 9411. Moreover, the Board notes that there is no indication in the record that the schedular criteria are inadequate to evaluate the veteran’s PTSD. In this regard, there is no evidence that the veteran’s PTSD has interfered with his employment in such a manner that is not already contemplated by the applicable rating criteria. As noted above, the veteran is employed full-time with the Kansas Department of Transportation. Further, there is no evidence that the veteran’s PTSD has necessitated frequent periods of hospitalization, or that the disability otherwise renders impracticable the application of the regular schedular standards. As such, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for assignment of an extra-schedular evaluation. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A 50 percent rating for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits. F. JUDGE FLOWERS Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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 -