BVA9507132 DOCKET NO. 93-09 309 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an increased rating for post-traumatic stress disorder, currently rated as 50 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs ATTORNEY FOR THE BOARD Heather J. Harner, Associate Counsel INTRODUCTION The veteran served on active duty from July 1967 to January 1969. We note that in his substantive appeal, the veteran contends he deserves a rating of 100 percent by reason of individual unemployability. This issue has not been formally developed for appellate review. The Board of Veterans' Appeals (Board) has a duty to consider all potential applications of the various provisions of 38 C.F.R. Parts 3 and 4 in evaluating all claims before the Board. Schafrath v. Derwinski, 1 Vet.App. 589 (1991) Following our review of the veteran's claims file, therefore, we are assuming appellate jurisdiction over the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities pursuant to the authority granted to the Board in 38 C.F.R. § 19.13 (1994). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that because of his chronic nightmares and hallucinations, he is unable to concentrate thus is rendered unable to pursue a gainful occupation. He contends as well that his service-connected post-traumatic stress disorder (PTSD) is more disabling than currently evaluated. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), 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 70 percent disability rating for PTSD. It is further the decision of the Board that the evidence supports a grant of a total disability rating based on individual unemployability due to the veteran's service connected disabilities. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran's PTSD causes severe social and industrial impairment. 3. The veteran's service connected disabilities are PTSD, rated as 70 percent disabling; residuals of a spinal cord injury with right sciatic involvement, rated as 20 percent disabling; a recurrent Baker's cyst of the left knee, rated as 10 percent disabling; a cutaneous nerve severance of the left leg, rated as noncompensable; and a fragment wound of the right second toe, also rated as noncompensable. 4. The veteran has completed some college courses. He has had occupational experience in a variety of non-skilled jobs, including as a laborer, chauffeur, and waiter. 5. The veteran last worked in 1978. 6. The veteran's service-connected disabilities are shown to be of such severity as to prevent him from engaging in any substantially gainful employment consistent with his education and occupational experience without regard to advancing age. CONCLUSIONS OF LAW 1. A 70 percent disability rating, and no more, for PTSD is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.130, 4.132, Code 9411 (1994). 2. The veteran's service-connected disabilities render him unemployable. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we note that the veteran's claim is well grounded. By this, we mean that he has submitted a claim which is plausible. We further conclude the VA has met its statutory duty to assist the veteran in the development of his claim, and that no further assistance is required to satisfy the provisions of 38 U.S.C.A. § 5107 (West 1991). Disability evaluations are determined by the application of a schedule of ratings which is based on 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 (1994). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1994). Entitlement to a rating in excess of 50 percent for PTSD The veteran served as a medic in Vietnam. He was awarded, among other decorations, the Purple Heart Medal for wounds received in combat, and the Silver Star for gallantry in action. By rating decision of September 1985, service connection for PTSD was granted; a 30 percent disability rating was assigned. The disability rating assigned was increased to 50 percent, effective from September 1991. The veteran's current disability rating reflects considerable social and industrial impairment. For a 70 percent disability rating to be warranted, it must be shown that the veteran's psychoneurotic symptoms are of such severity and persistence that there is severe impairment in his ability to obtain and retain employment and that his ability to establish and maintain favorable relationships with people is severely impaired. A 100 percent evaluation requires that attitudes of all contacts except the most intimate be so adversely affected as to result in virtual isolation in the community and there be totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes (such as fantasy, confusion, panic, and explosions of aggressive energy) associated with almost all daily activities resulting in a profound retreat from mature behavior. The individual must be demonstrably unable to obtain or retain employment. 38 C.F.R. Part 4, Code 9411 (1994). In an October 1991 letter, a VA counseling psychologist reported that the veteran had been pursuing a bachelor's degree under the VA's vocational rehabilitation program. Since 1989, he had experienced sleep disturbances which involved nightmares of his combat experiences. His progress began to decline, resulting the interruption of his training. The counselor was of the opinion that the veteran was unable to follow through because of his chronic sleep disturbances and chronic fatigue. He was also noted to very distrustful. The counselor concluded that his PTSD resulted in severe impairment. Following a VA psychiatric examination conducted pursuant to this claim in November 1991, the examiner concluded that the veteran's PTSD was severely incapacitating. The veteran obtained a high score of 160 on the Mississippi Scale for PTSD. (Ninety percent of PTSD victims score over 107.) The examiner deemed that the veteran was not employable in the foreseeable future. According to the November 1991 examination report and to other medical treatment reports contained in the veteran's claims file, the veteran is not married and reports having no friends. He suffers from nightmares and hallucinations of combat victims who are wounded. The veteran does not take medication for his PTSD. In statements received in April 1992 and July 1994, a VA staff psychologist reported treatment of the veteran for PTSD. He indicated that the veteran's condition had deteriorated over the past decade. He noted that the veteran had a reclusive lifestyle exacerbated by his fear that he was losing his mind. He exhibited depression and withdrawal. It was reported that he had re-experiencing events, numbing, memory impairment, and difficulty concentrating, all to at least a moderately severe degree. It was also noted that he had sleep disturbances which were severe. Survivor guilt and exaggerated startle response were also severe. The Board concludes that the regulatory criteria for the 70 percent rating more accurately describe the veteran's PTSD. His symptoms as described above reflect severe social and industrial impairment and therefore warrant the assignment of a 70 percent disability rating. The evidence supports the veteran's claim and an increased disability rating is granted. It is not shown, however, that he meets the requirements for a 100 percent schedular evaluation. He does not have totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes (such as fantasy, confusion, panic, and explosions of aggressive energy) associated with almost all daily activities resulting in a profound retreat from mature behavior. Other provisions of 38 C.F.R. Parts 3 and 4 have also been considered as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). For example, the possibility of an extraschedular evaluation has been considered. However, the Board finds that the present case does not present an exceptional or unusual disability picture with such factors as frequent hospitalization so as to preclude the use of the regular rating criteria. Thus, an increased rating on an extraschedular basis under 38 C.F.R. § 3.321 is not warranted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. The veteran's employment history, educational and vocational attainment as well as his particular physical disabilities are to be considered in making a determination on unemployability. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (1994). The veteran's service connected disabilities are PTSD, rated as 70 percent disabling; residuals of a spinal cord injury with right sciatic involvement, rated as 20 percent disabling; a recurrent Baker's cyst of the left knee, rated as 10 percent disabling; a cutaneous nerve severance of the left leg, rated as noncompensable; and a fragment wound of the right second toe, also rated as noncompensable. He has completed some college courses. He has had occupational experience in a variety of non- skilled jobs, including as a laborer, chauffeur, and waiter. Apparently, he last worked in 1978. As noted above, the VA psychiatrist who examined him in November 1991 deemed that the veteran is not employable in the foreseeable future. An October 1991 memorandum written by the veteran's current VA counseling psychologist likewise indicates that in the psychologist's opinion, the veteran's ability to obtain any type of employment is severely impaired. The Board holds that the veteran's severely-disabling mental disorder (PTSD) in combination with his mildly-disabling physical disabilities (residuals of a spinal cord injury with right sciatic involvement, a recurrent Baker's cyst of the left knee, a cutaneous nerve severance of the left leg, and a fragment wound of the right second toe) render him unemployable in light of his educational and occupational background. The evidence supports a grant of a total disability rating based on individual unemployability due to service-connected disabilities and such a rating is therefore granted. ORDER A 70 percent disability rating for PTSD is allowed and a total disability rating based on individual unemployability are allowed, subject to the controlling laws and regulations governing the payment of monetary awards. V. L. JORDAN Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), 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), 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 (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.