BVA9503277 DOCKET NO. 91-49 568 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an increased rating for post-traumatic stress disorder, anxiety reaction, currently evaluated as 70 percent disabling. 2. Entitlement to a total rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD J. A. McDonald, Associate Counsel INTRODUCTION The veteran served on active duty from January 1968 to February 1970. This case was previously before the Board of Veterans' Appeals (hereinafter Board) in August 1992, at which time it was remanded to the Department of Veterans Affairs Regional Office in Seattle, Washington for further development and consideration of the additional issue entitlement to a total rating for compensation purposes based upon individual unemployability. The veteran has since moved, and the case is now on appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado (hereinafter RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that manifestations of his psychiatric disorder are more severe than currently evaluated and render him unemployable. 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 preponderance of the evidence is against the veteran's claim of entitlement to an increased rating for post- traumatic stress disorder, anxiety reaction. However, the evidence of record supports the veteran's claim of entitlement to a total rating for compensation purposes based upon individual unemployability. 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 post-traumatic stress disorder, anxiety reaction, is productive of no more than severe social and industrial impairment. 3. Service connection is in effect for post-traumatic stress disorder, anxiety reaction, evaluated as 70 percent disabling; acne, evaluated as 10 percent disabling; and scars on the right thumb and abdomen, both assigned noncompensable evaluations. The veteran is in receipt of a combined rating of 70 percent. 4. The veteran has a high school education and work experience as a laborer and maintenance worker. He had some college in generalized studies, and training in welding. He last worked in 1990. 5. The veteran is unemployable due to service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an increased rating for post-traumatic stress disorder, anxiety reaction, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Parts 3 and 4, § 4.132, Diagnostic Code 9411 (1993). 2. The criteria for a total rating for compensation purposes based upon individual unemployability are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon review of the record, the Board concludes that the veteran's claim is well-grounded within the meaning of the statute and judicial construction. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); 38 U.S.C.A. § 5107(a). The Department of Veterans Affairs (hereinafter VA) therefore has a duty to assist the veteran in the development of facts pertinent to his claim. In this regard, the veteran's service medical records, post-service private clinical data, and VA outpatient, hospitalization, and examination reports have been included in his file. Upon review of the entire record, the Board concludes that the data currently of record provide a sufficient basis upon which to address the merits of the veteran's claim and that he has been adequately assisted in the development of his case. I. Post-Traumatic Stress Disorder, Anxiety Reaction With respect to the veteran's claim of entitlement for an increased rating for post-traumatic stress disorder, anxiety reaction, disability ratings are based, as far as practicable, upon the average impairment of earning resulting from the disability. 38 U.S.C.A. § 1155. The average impairment is set forth in the VA's SCHEDULE FOR RATING DISABILITIES (hereinafter SCHEDULE), codified in C.F.R. Part 4 (1993), which includes diagnostic codes which represent particular disabilities. The pertinent diagnostic codes and provisions will be discussed below as appropriate. Service connection for anxiety reaction was granted by the VA regional office in Seattle, Washington in 1970, and assigned a 10 percent disability evaluation. 38 C.F.R. § 4.132, Diagnostic Code 9400. A VA psychiatric examination in 1981 reported a diagnosis of anxiety reaction with probable post-Vietnam syndrome and cited the degree of the veteran's psychiatric disorder as moderately severe. The veteran's degree of impairment was reported as moderate. Based on this rating, the veteran's service-connected anxiety reaction was assigned a 30 percent disability rating. Id. A VA psychiatric examination conducted in October 1990, diagnosed post-traumatic stress disorder. The examiner opined that the veteran experienced a generalized anxiety disorder and post-traumatic stress disorder symptoms. Symptoms of the anxiety disorder included shakiness, muscle tension, fatigability and sweating. Manifestations of the veteran's post-traumatic stress disorder included frequent intrusive thoughts, flashback experiences, distressing dreams, avoidant behavior, diminished interest in significant activities, detachment, anger control difficulty, sleep disturbance, exaggerated startle response, poor concentration, and survivor guilt. Service connection for post-traumatic stress disorder was granted by rating decision in January 1991, and was rated with the veteran's service-connected anxiety reaction. A 50 percent disability rating was assigned, as considerable social and industrial impairment was shown. The veteran testified at a hearing before the VA regional office in Seattle, Washington in July 1991. He testified that his symptoms had increased, that he had intrusive thoughts of Vietnam once or twice a week, and had flashbacks 3 to 4 times a week triggered by a sound or the television or radio. He stated that he has nightmares about Vietnam every night, which impairs his sleep. He testified that he has trouble controlling his anger and problems with concentration. The veteran stated that he does not have friends, and isolates himself due to mistrust. A VA psychiatric examination conducted in January 1993, revealed the veteran complained of panic attacks, social isolation, problems with his spouse, recurrent intrusive memories, and shortness of temper. Mental examination showed the veteran spoke in a halting fashion, his affect was constricted to helplessness and hopelessness, but was appropriate to content. It was reported that the veteran showed feeling out of control. The veteran was suspicious, but there was no organized delusional system. Referential thinking was not found. Auditory or visual hallucinations were not elicited. The veteran spoke in a goal oriented manner and was spontaneous. The veteran was oriented to time, place and person, and his memory was grossly intact. The diagnoses included post-traumatic stress disorder, panic disorder, and bipolar disorder. The examiner stated that the bipolar disorder would cause employment difficulties. By a rating decision the RO granted a rating evaluation of 70 percent, effective September 1990, for the veteran's post-traumatic stress disorder, anxiety reaction. 38 C.F.R. § 4.132, Diagnostic Code 9411. This rating contemplates manifestations which cause severe impairment in the veteran's ability to establish and maintain effective or favorable relationships with people. Further, the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. Id. To receive a 100 percent schedular rating, manifestations of the veteran's psychiatric disorder would include the attitudes of all contacts, except the most intimate are so adversely affected as to result in virtual isolation in the community. Id. Manifestations would include 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. Id. Further, the veteran, due to his psychiatric disorder, would be demonstrably unable to obtain or retain employment. Id. In the instant case, manifestations of the veteran's psychiatric disorder do not border 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. The most recent psychiatric examination shows the veteran was oriented to time, place, and person, with no delusional system, or referential thinking found. Furthermore, his service-connected psychiatric disorder is not shown to be productive of such extreme pathology as to not render him demonstrably unable to obtain or retain employment. Although the veteran states he is uncomfortable around people, and severe social impairment has been shown, isolation from the community due to his service-connected psychiatric disability has not been shown. As such, a total schedular rating for post-traumatic stress disorder, anxiety reaction is not warranted. II. Total Rating Due to Unemployability Service connection is in effect for post-traumatic stress disorder, anxiety reaction, evaluated as 70 percent disabling; acne, evaluated as 10 percent disabling; and scars on the right thumb and abdomen, both assigned a noncompensable evaluation. The veteran is in receipt of a combined rating of 70 percent. The veteran has a high school education and work experience as a laborer and maintenance worker. He had some college in generalized studies, and training in welding. He last worked in 1990. The law provides that before a total disability rating based on individual unemployability may be granted, it must be shown that the veteran is unable to secure or follow a substantially gainful occupation due solely to the impairment resulting from service- connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to the veteran's age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. With respect to the laws and regulations pertaining to the VA, neither the UNITED STATES CODE nor the CODE OF FEDERAL REGULATIONS offers a definition for "substantially gainful employment" or "substantially gainful occupation." The VA adjudication manual, M21-1, Section 50.55(a) defines "substantially gainful employment" as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." This is a subjective standard, as is the standard set forth in 38 C.F.R. §§ 3.341 and 4.16. The United States Court of Veterans Appeals (hereinafter the "Court") in Moore v. Derwinski, 1 Vet.App. 356 (1991), and Ferraro v. Derwinski, 1 Vet.App. 326 (1991), noted that since the foregoing terms were ill-defined by the laws and regulations pertaining to the VA, much could be learned from the decisions of the United States Circuit Courts of Appeals which had considered the question of whether a Social Security disability claimant was able to engage in "substantially gainful activity." The Court noted in particular the following standard set forth by the 8th Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total "basket case" before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The thrust is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore, 1 Vet.App. at 359. The Board finds this standard to be particularly helpful in this case in interpreting the aforementioned laws and regulations. In addition, a thorough longitudinal review of all the evidence is necessary to obtain a full understanding of the case. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition to the veteran's psychiatric disorder discussed above, the veteran is service-connected for acne and scars on the right thumb and abdomen. The veteran was seen in service for a complaint of lumps on the face and examination provided a diagnosis of cystic acne. Subsequent to service, acne was diagnosed on the cheek and chin, and the veteran was treated with an antibiotic, as well as dermatological surgery. A VA examination noted acne scars, with no active lesions on the back and posterior chest wall. A 10 percent rating is protected, having been in effect for over twenty years. Scars on the left lower abdomen and the right thumb are asymptomatic, and therefore, noncompensable ratings have been assigned. It is the defined and consistently applied policy of the VA to administer the law under a broad interpretation; consistent, however, with the facts shown in every case. In this case, after careful consideration of all procurable and assembled data, a reasonable doubt has arisen regarding the impact the veteran's service-connected disabilities have on his employability, and therefore, such doubt will be resolved in favor of the veteran. The evidence in this case shows that the veteran's service-connected disabilities, specifically the veteran's service-connected psychiatric disorder, have severely compromised his ability to perform all types of work. The Board concludes that for all practical purposes, substantially gainful employment is not realistically within the capabilities of the veteran because of his service-connected disabilities. Therefore, a total disability rating based upon individual unemployability is warranted. ORDER Entitlement to an increased rating for post-traumatic stress disorder, anxiety reaction, is denied. Entitlement to a total rating for compensation purposes based upon individual unemployability is granted, subject to the laws and regulations governing the payment of monetary benefits. JEFF MARTIN Member, Board of Veterans' Appeals 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.