Citation Nr: 9920115 Decision Date: 07/22/99 Archive Date: 07/28/99 DOCKET NO. 93-25 284 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. 2. Entitlement to an effective date earlier than July 31, 1992, for a 30 percent rating for PTSD. 3. Entitlement to a total rating based upon individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Kenneth Carpenter, Attorney at Law ATTORNEY FOR THE BOARD John Z. Jones, Associate Counsel INTRODUCTION The veteran served on active duty from August 1964 to June 1967. This matter has come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO). Upon review, the Board notes that the RO denied the veteran's claim for a total disability rating based on individual unemployability due to service-connected disability in a November 1998 rating decision. In February 1999, the veteran's representative filed a notice of disagreement pertaining to this issue and the RO issued a Statement of the Case. In April 1999, the veteran's representative submitted a statement that was accepted as a substantive appeal in lieu of a VA Form 9. The veteran has, therefore, perfected an appeal on this issue. See Archbold v. Brown, 9 Vet. App. 124 (1996). For this reason, such issue is before the Board for appellate review. This case was previously before the Board and was remanded to the RO in October 1995 and December 1996. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's PTSD is manifested by nightmares, flashbacks, increased startle reactions, suicidal ideations, impaired concentration and social withdrawal. PTSD precludes the veteran from securing and following a substantially gainful occupation. 3. In an August 1990 rating decision, the RO granted service connection for major affective disorder and assigned a 10 percent rating effective from March 15, 1990. Service connection was denied for PTSD because of the lack of verified stressors. Those determinations were not appealed. 4. On July 31, 1992, the veteran filed an increased rating claim for his "service-connected PTSD". 5. In an April 1993 rating decision, the RO recharacterized the veteran's service-connected psychiatric disability as PTSD, and increased the evaluation to 30 percent effective from July 31, 1992. 6. An increase in severity of the veteran's psychiatric disorder was factually ascertainable within the one-year period prior to July 31, 1992. CONCLUSIONS OF LAW 1. A 100 percent rating for PTSD is warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.16(c), 4.132, Diagnostic Code 9411 (effective prior to November 7, 1996); 38 C.F.R. §§ 3.340, 4.16(a), 4.130, Diagnostic Code 9411 (effective after November 7, 1996). 2. An effective date of June 3, 1992, for a 30 percent rating for PTSD is warranted. 38 U.S.C.A. § 5110 (West 1991 & Supp. 1998); 38 C.F.R. § 3.400 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the veteran's claims are "well-grounded" within the meaning of 38 U.S.C.A. § 5107. The Board is also satisfied that all relevant facts have been properly and sufficiently developed, and that no further assistance to the veteran is required to comply with the statutory duty to assist. 38 U.S.C.A. § 5107. Factual Background In an August 1990 rating decision, the RO granted service connection for major affective disorder, evaluated as 10 percent disabling. The award was based on the service medical records and a report of VA examination in May 1990, which resulted in diagnoses of major affective disorder and PTSD. Service connection for PTSD was denied in the absence of evidence of a verifiable stressor. Those determinations were not appealed. On July 31, 1992, the RO received the veteran's claim for an increased rating for his "service-connected PTSD". Received in October 1992 were VA outpatient treatment records dated from March 1990 to September 1992. The records show that the veteran was seen on several occasions in June and July 1992 for his psychiatric problems, initially on June 3, 1992. On June 3rd, the veteran reported a relapse of symptoms that brought him to the clinic the year before - depression, self-destructive thoughts, flashbacks of Vietnam combat, and insomnia. He indicated that he had been off his medication for the past year and that his symptoms began to return about four months ago. Objective findings noted him to be in good contact, spontaneous and coherent. There were no psychotic trends. His affect was depressed. His speech was soft spoken, with no fearfulness. The diagnoses were recurrent bipolar depression and PTSD, not actively suicidal. He was prescribed medication. When seen later, the veteran's reported problems included recovering depression, suicidal thoughts although not actively suicidal, alienation from family, sleep disturbance, nightmares, anger control problems, and flashbacks. He reported that he had received a Journeyman's electrical license and had been doing contract work since 1986. The diagnosis was PTSD. On June 9th, the veteran reported decreased depression and no thoughts of self-harm. He also reported that he had improved sleep and felt rested. He denied having nightmares. Objective findings noted that he appeared relaxed and comfortable. He denied suicidal ideation. His affect was brighter and he needed his medication only 2-3 nights. On June 23rd, the veteran was more spontaneous and his affect was brighter. Later that day, a psychotherapist noted that the veteran's mood appeared depressed and that he expressed feelings of depression. Clinical entries dated in July 1992 noted that the veteran had a brighter affect, good eye contact, and was verbally spontaneous. The veteran was afforded a VA psychiatric examination in October 1992. During the examination, the veteran discussed his service in Vietnam. He reported seeing body parts, mutilations, having a friend die in his arms, seeing people in his own platoon shoot at each other, placing body parts into bags, people yelling and screaming after they had been shot, and knowing that he could do nothing to help them. He reported a history of having intense anger and drinking to help control this. He reported difficulty in being in crowds or groups and liked to be alone. He reported that he had nightmares in which he dreamt about being in Vietnam. He awoke frightened, confused, hypervigilant, and had palpitations. He reported that he had flashbacks that occurred more than the nightmares on a daily basis, which were caused by sounds like helicopters or songs. He denied having hallucinations. Mental status examination showed that the veteran did not appear to be responding to any internal stimuli. He did report having feelings of helplessness and hopelessness. He was alert and oriented. His mood was tearful and his affect was depressed. The diagnosis was PTSD. In an April 1993 rating decision, the RO recharacterized the veteran's service-connected psychiatric disability as PTSD, and increased the disability evaluation to 30 percent effective from July 31, 1992. The RO reviewed the veteran's military personnel records. Received in November 1995 were VA outpatient treatment records dated from March 1990 to November 1995 showing that the veteran was being seen on a regular basis in individual therapy. When he was seen in November 1995 he reported that his status was stable and that he was sleeping well. He had no depression or intrusive thoughts. His affect was appropriate. He was taking Wellbutrin. He was hopeful of getting an electrical contract. On VA psychiatric examination in June 1996, the veteran reported that after service he worked as an electrician's helper for a period of time, and when eligible became licensed as a master electrician. He stated that he worked for a number of companies through the auspicious of his brother-in-law. He also stated that he was too shy, bashful and inhibited to seek employment on his own, but that his brother-in-law was helpful in that respect. He indicated that without the help of his brother-in-law he would not have been able to gain adequate employment in spite of his capabilities. He stated, however, that in 1989 when he ruptured a disc in his back that he became virtually unemployable because of liability considerations on the part of the employers. Following that time he attempted to continue employment on a self-employed basis, but stated that again because of his fearfulness and distrust of others, that he fared poorly, and estimated that at no time did he earn more than $15,000 a year. He stated that he was currently living on a farm, through the generosity of a friend who had allowed him to remodel a chicken coup for his habitation. The veteran stated that he still had recurring nightmares of the traumatic experiences he endured while in Vietnam. He stated that during the waking hours, that sounds and smells, such as the sound of a helicopter, and smells that were similar to rotting flesh and other smells that he experienced in Vietnam, caused him to reflect back to Vietnam and interfered with his attention and concentration, and therefore his work performance. He stated that because of his frequent intrusive thoughts about Vietnam and his attempt to relieve that concern by verbalizing these that he alienated his wife, and that she eventually tired of his inability to extricate himself from reliving the past that she finally divorced him. He stated that he had no trust in others, that he was suspicious, that he was easily startled by persons coming up from behind or loud sounds, and that he frequently has suicidal thoughts, but had taken no actions to act on them. He indicated that he was disillusioned regarding his current state and that the future looked grim to him. He stated that because of his isolated asocial behavior he was not involved in social activities in the community. He indicated that the kids in the neighborhood had expressed fear of him. Mental status examination showed that the veteran was soft spoken, mild mannered, withdrawn and radiated an attitude of fearful expectation of nonacceptance, and possible harm both verbally and physically at the hands of others. There was no evidence of psychotic process with such manifestations as disturbances of association of thought or of mood, sensory misperceptions and delusions. The diagnosis was PTSD. The examiner noted the following symptomatology: nightmares, flashbacks, increased startle reactions, suicidal ideation, impaired attention and concentration, and social withdrawal. It was noted that the veteran had deteriorating occupational and social functioning. His global assessment of functioning (GAF) score was 40. On VA psychiatric examination in April 1998, the veteran reported that he was taking Wellbutrin for his mental and emotional symptoms. He stated that he continued to live alone in the chicken coop. He continued to be reclusive having no friends and leaving his chicken coop residence only to obtain the necessities of life and to occasionally respond to requests for his trade experiences. He stated that he had no trust in others or confidence in them and was lacking of confidence in his own abilities. He reported that he continued to work off and on but that because of deepening and worsening of his PTSD symptoms and his fatigue that requests for his services as an electrician may have to be canceled because of his inability to perform the required services. He stated that as a result he had previously earned as much as $15,000 gross but in 1996 he estimated that he only earned approximately $10,000 gross. In 1997, this went down to approximately $7,000. He stated that because of the increased frequency of the nightmares that he lost sleep and therefore awakened tired and unable to address work commitments. His subjective complaints included increased nightmares and flashbacks of Vietnam with sounds of helicopters and the smell of rotting materials. He indicated that when he was on the job that he might have intrusive thoughts of his experiences in Vietnam and that these then interfered with his ability to bring a task to completion. He had a tendency to confine himself primarily to his chicken coop residence except when he had to get out to get his groceries or meet some other needs and to meet obligations. His future outlook was dim and gloomy and he frequently had dark, morbid thoughts and at those times considered the possibility of suicide. Mental status examination showed his speech to be hesitant and halting but coherent. His thoughts were organized and goal directed with no hallucinations or delusions. Attention was not easily gained but his concentration was somewhat diminished. Memory was intact. His mood was one of despair, sadness and morbid. The examiner noted that the veteran was more anxious than on examination in June 1996 and continued to be soft spoken, fearful and tense. The diagnosis was PTSD with the following symptomatology: nightmares, flashbacks, increased startle reactions, suicidal ideation, impaired concentration and social withdrawal. His GAF score was 40. Received in August 1998 were VA outpatient treatment records dated from December 1996 to August 1998 reflecting medications renewals and individual therapy a few times a year. A clinical entry dated in March 1997 noted that the veteran had recently built a boat with the help of a friend, that he continued to do well and that he enjoyed the outdoors. In May 1998, he reported that he usually slept fair but on occasion had very restless night with dreams and nightmares of Vietnam. In June 1998, he was working on a contract job and was doing fairly. Analysis I. Increased Rating Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). The veteran's PTSD is currently rated as 30 percent disabling under Diagnostic Code 9411. In November 1996, the schedular criteria for evaluation of psychiatric disabilities were amended. These amendments were effective on November 7, 1996. Following the November 1996 amendments to the Rating Schedule, a 30 percent evaluation is warranted when there is 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, and mild memory loss. A 50 percent evaluation requires 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing or 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, 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); and the inability to establish and maintain effective relationships. A 100 percent evaluation requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. Prior to the November 1996 amendment, the Rating Schedule provided a 30 percent evaluation for PTSD when there was definite impairment in the ability to establish or maintain effective and wholesome relationships with people and when psychoneurotic symptoms result in such reductions in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. A 50 percent rating was assigned when there was considerable impairment in the ability to establish or maintain effective or favorable relationships with people and when, by reason of psychoneurotic symptoms, the reliability, efficiency, and flexibility levels were so reduced as to result in considerable industrial impairment. A 70 percent evaluation was assigned when the veteran's ability to establish and maintain effective or favorable relationships with people was severely impaired and the psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. A 100 percent rating was assigned when there are 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; or when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; or when the veteran is demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411. In Hood v. Brown, 4 Vet. App. 301 (1993), the United States Court of Appeals for Veterans Claims (Court) (formerly known as the United States Court of Veterans Appeals) stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other terms were "quantitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment. In a subsequent opinion, the General Counsel of the VA concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." VAOPGCPREC 9-93 (Nov. 9, 1993). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c). The Court has held that where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to the appellant will apply unless Congress or the Secretary provided otherwise. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Also, when 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 for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In the present case, the Board notes that the RO evaluated the veteran's claim under the previous regulations in making its rating decision of April 1993. The July 1993 Statement of the Case referred to the regulations then in effect. In November 1998, the RO issued a Supplemental Statement of the Case that evaluated the veteran's claim using the new regulations. The veteran was afforded an opportunity to comment on the RO's action. No comments or objections were received. Accordingly, there is no prejudice to the veteran under Bernard v. Brown, 4 Vet.App. 384 (1993), and the Board is not required to remand this issue for readjudication under the revised rating criteria. In light of Karnas, the Board will proceed to analyze the veteran's PTSD claim under both sets of criteria to determine if one is more favorable to the veteran. In light of the above evidence, and resolving all doubt in favor of the veteran, the Board finds that a 70 percent evaluation is warranted, under either the previous or amended regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The evidence shows that the veteran's ability to establish and maintain relationships is severely impaired. He is divorced, in large part due to stress placed on the marriage as a result of his PTSD symptomatology. He isolates himself socially by staying in his own home almost all the time. The veteran has had multiple episodes of suicidal ideation and problems sleeping due to nightmares. He also has flashbacks to Vietnam with sounds of helicopters and the smell of rotting materials. He is unable to complete job-related tasks because of intrusive thoughts of Vietnam. Although the evidence is unclear as to whether the veteran's employment history is strictly due to the PTSD, the veteran is unable to retain employment. Such evidence supports a 70 percent rating under either version of the regulations quoted above. The evidence does not, however, show entitlement to a 100 percent rating. There is no entitlement to a total evaluation under the previous regulations as there is no evidence that the veteran suffers from psychoneurotic symptoms that indicate withdrawal from reality and have left him totally incapacitated. No examiner has noted evidence of disturbed thought or behavioral processes. There is no indication that he is generally confused, engages in fantasy, of suffers from panic or explosions of aggression. Considering the new regulations, there is no evidence that the veteran is disoriented as to time or place, has had any memory loss of names, or is a danger to himself or others. The VA examiner specifically noted no evidence hallucinations or delusions. No evidence suggests that the veteran has been unable to maintain personal hygiene or other activities of daily living. Thus, under application of the general rating schedule, the evidence does not warrant a 100 percent evaluation. The Board notes that 38 C.F.R. § 4.16(c), in effect prior to the November 1996 changes that included its repeal, provided for total disability ratings on a schedular basis if the only compensable service-connected disability is a mental disorder assigned a 70 percent evaluation, and such mental disorder precludes the veteran from securing or following a substantially gainful occupation. In such cases, the mental disorder shall be assigned a 100 percent evaluation under the appropriate diagnostic code. In this case, the veteran has a mental disorder herein evaluated as 70 percent disabling. If the PTSD precludes the veteran from securing or following a substantially gainful occupation, 38 C.F.R. § 4.16(c) entitles the veteran to a 100 percent schedular rating. In the present case, the Board notes that a VA examiner concluded in June 1996 that the veteran had "deteriorating" occupational and social functioning as a result of PTSD, and provided a GAF score of 40, a score indicative of the inability to work. See case cited supra note 1. This GAF score was confirmed on VA examination in April 1998. The Board accepts the GAF score, as well as the veteran's description of marginal employment, as evidence that the veteran is unable to work because of his PTSD. Therefore, pursuant to 38 C.F.R. § 4.16(c), the Board awards the veteran a 100 percent schedular evaluation for PTSD under DC 9411 under the previous rating criteria. In light of the award of a 100 percent schedular evaluation for PTSD under 4.16(c), the application of the current criteria found at 38 C.F.R. §§ 3.340, 4.16(a) for ratings based on individual unemployability due to service-connected disability is cited as the basis for continuation of the 100 percent rating. II. Earlier Effective Date The method of determining the effective date of an increased evaluation is set forth in 38 U.S.C.A. § 5110(a) and (b)(2), as well as 38 C.F.R. § 3.400(o). These legal criteria provide that generally, the effective date of an award of increased compensation is the date of the receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o). Nevertheless, the effective date of an award of increased compensation can be the earliest date as of which it is ascertainable that an increase in disability has occurred, if the application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). On July 31, 1992, the veteran's increased rating claim for his "service-connected PTSD" was received at the RO. Following a VA examination in October 1992 which resulted in a diagnosis of PTSD and the receipt of military personnel records showing that the veteran engaged in combat in Vietnam, the RO in an April 1993 rating decision recharacterized the veteran's service-connected psychiatric disorder as PTSD and increased the disability evaluation to 30 percent effective from July 31, 1992. If it is ascertainable that the veteran's psychiatric disability had increased in severity in the year prior to July 31, 1992, then an earlier effective date would be warranted. In this regard, the Board notes that VA outpatient treatment records show that the veteran was seen on a frequent basis for his psychiatric problems initially on June 3, 1992 and this record, viewed liberally, shows evidence of an increase in severity of his psychiatric disability. While clinical evaluation on June 3rd noted increased psychiatric symptomatology, including depression, self-destructive thoughts and flashbacks, the veteran reported decreased depression on follow-up evaluation on June 9th. He also denied having nightmares or suicidal ideation and reported that his need for medication had decreased. Clinical evaluations on June 23rd and in July 1992 also noted improvement in the veteran's condition. At those times, it was noted that he had a brighter affect, good eye contact, and was verbally spontaneous. Although he appeared to have had the symptoms alleviated to some degree, this was accomplished though frequent outpatient observation that had not been the case since early 1991. Based on this evidence, the Board finds that one may reasonably conclude that an ascertainable increase in disability had occurred in the year prior to July 31, 1992, notably from June 3, 1992 when he veteran initiated contact with the VA and was closely monitored from that date. The Board has not overlooked the veteran's comment in his VA Form 9, dated in July 1993, that his psychiatric condition was misdiagnosed as paranoid schizophrenia and not PTSD back in 1966 and that he is entitled to retroactive pay from 1966 to the present. The Board must point out that in August 1990 the RO granted service connection for major affective disorder and assigned a 10 percent rating effective from March 15, 1990, the date on which the veteran's initial claim for compensation was received, and which in this case is the earliest effective date for any compensation for a psychiatric disorder. 38 U.S.C.A. § 5110(a). As he did not appeal the 1990 determination as to the assigned rating or the effective date chosen by the RO, the determination is final in the absence of clear and unmistakable error. The Board notes that neither the veteran's current nor former representative, Disabled American Veterans, has articulated any additional contentions on behalf of the veteran regarding this issue. ORDER A 100 percent rating for PTSD is granted, subject to the applicable laws and regulations concerning the payment of monetary benefits. An effective date of June 3, 1992, for a 30 percent rating for PTSD is granted. Mark J. Swiatek Acting Member, Board of Veterans' Appeals See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) [GAF is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.), p.32.] GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect 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). Scores ranging from 31-40 reflect major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g. depressed man avoids friends, neglects family, and is unable to work).