BVA9503026 DOCKET NO. 91-19 925 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for Post-Traumatic Stress Disorder (PTSD), currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Sandra L. Smith, Associate Counsel INTRODUCTION The veteran had active service from January 1968 to February 1970. This case is before the Board of Veterans Appeals (the Board) on appeal from a November 1990 rating decision which denied an increased evaluation for PTSD. The case was referred to the Regional Office (RO) for further development by the Board in a July 1991 remand. The requested development was accomplished and the rating decision of July 1992 continued the denial of an increased evaluation for PTSD. The veteran had raised the additional issue of unemployability in his substantive appeal. Thus the case was again remanded to the RO in March 1994 for development of this issue. Because the veteran failed to report for scheduled examinations, the RO was unable to develop and adjudicate the issue of total disability due to unemployability. Consequently, the Board does not have appellate jurisdiction of that issue and will only consider the increased rating issue in this decision. The veteran's representative has indicated that it is unlikely that the veteran would be willing to report for a VA examination at this time. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the symptoms of his service-connected PTSD are of such severity to warrant a higher disability evaluation than the 30 percent rating currently assigned. He and his accredited representative assert that the number and frequencies of his hospitalizations alone warrant a finding of severe disability. The veteran's representative also contends that the veteran's substance abuse is a means of self-medicating the PTSD symptoms. In addition, the veteran's representative requests that any and all reasonable doubt be resolved in the veteran's favor. 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 warrants an increased disability evaluation, not in excess of 50 percent, for PTSD. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's PTSD is manifested principally by sleep disturbance, intrusive thoughts, nightmares, flashbacks, survivor guilt, feelings of depression, and irritability. The veteran has never participated in outpatient therapy. 3. The symptoms of the veteran's PTSD are productive of not more than considerable social and industrial impairment. 4. The veteran's PTSD does not result in frequent hospitalization nor marked interference with his work so as to render application of the regular schedular provisions impractical. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 50 percent for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107(West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.129, 4.130, 4.132, Code 9411 (1994). 2. The criteria for an evaluation in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107(West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.129, 4.130, 4.132, Code 9411 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A person who submits a claim for benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107. After reviewing the evidence on file we conclude that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the claim presented is not inherently implausible. Furthermore, we conclude that all facts pertinent to the plausible claim have been developed and that as such, there is no further duty to assist in developing the claim as contemplated by 38 U.S.C.A. § 5107(a). 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; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. An extraschedular evaluation will be assigned if the case presents an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent period of hospitalization such as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The entire history of the disability will be reviewed. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The RO has rated the veteran's PTSD under the provisions of Diagnostic Code 9411 of the Schedule for Rating Disabilities, 38 C.F.R. Part 4. A 30 percent evaluation is warranted for PTSD when the veteran's symptoms result in a definite impairment in the ability to establish or maintain effective and wholesome relationships with people, and where psychoneurotic symptoms result in such reduction in initiative flexibility, efficiency and reliability levels as to produce definite industrial impairment. 38 C.F.R. § 4.132, Code 9411. In a precedent opinion, dated November 9, 1993, 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." O.G.C. Prec. 9-93, 59 Fed. Reg. 4753 (1994). The VA, including the Board, is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c) (West 1991). Diagnostic Code 9411 also provides that a 50 percent evaluation is warranted for PTSD where the ability to establish or maintain effective or favorable relationships with people is considerably impaired and where the reliability, flexibility and efficiency levels are so reduced by reason of psychoneurotic symptoms as to result in considerable industrial impairment. A 70 percent evaluation requires that the ability to establish and maintain effective or favorable relationships with people be severely impaired and that the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. 38 C.F.R. § 4.132, Code 9411. The veteran was originally granted service connection for PTSD in a February 1989 rating decision and assigned a 10 percent disability rating. In October 1989 the RO increased the disability evaluation for PTSD from 10 to 30 percent. The 30 percent rating has remained in effect to the present time. The severity of a psychiatric disability is based upon actual symptomatology, as it affects social and industrial adaptability. Two of the most important determinants of disability are time lost from gainful work and decrease in work efficiency. Great emphasis is placed upon the full report of the examiner, descriptive of actual symptomatology. The record of the history and complaints is only preliminary to the examination; the objective findings and the examiner's analysis of the symptomatology are the essentials. 38 C.F.R. § 4.130. The principle of social and industrial inadaptability as the basic criterion for rating disability for the mental disorders contemplates those abnormalities of conduct, judgment, and emotional reactions which affect economic adjustment, i.e., which produce impairment of earning capacity. 38 C.F.R. § 4.129. The veteran's service records show that he is a combat veteran from the Vietnam era. A VA hospital summary report shows that the veteran was first hospitalized from March to August 1988 for PTSD. The staff psychologist's report noted that prior to that admission the veteran had been in alcohol and/or drug treatment seven times and in detox five times. He had a history of alcohol abuse as well as abuse of marijuana, cocaine, speed, heroin, crack, and PCP. PTSD was again diagnosed on VA examination of October 1988. After the examination, the veteran was deemed fit to work while he received outpatient treatment. A VA hospital summary report, dated in December 1988, shows that he was admitted because he appeared at the hospital with no money, no place to stay, and his car had run out of gas. He did not receive psychotropic medications during his hospital stay. The veteran denied taking any alcohol or drugs since March 1988. The final diagnoses were: adjustment disorder with anxiety; and a history of multiple substance abuse, alcohol and cocaine. Another VA hospital summary report shows that following his release from the VA medical facility cited above he was readmitted to a different facility later in December 1988 for treatment of PTSD. With individual and group therapy as well as psychotropic medication his condition slowly improved. He was discharged in March 1989. The staff psychologist's report noted that the veteran had symptoms of sleep disturbances and nightmares, flashbacks as visual/auditory hallucinations, loss of interest in life's activity; withdrawal to point of isolation from others, and mood swings from depression to explosive aggressive energy. He also exhibited survivor guilt. The psychologist opined that: Severity of PTSD symptoms and amount of medication will interfere with ability to secure and maintain employment to extent that veteran is unemployable indefinitely due to SC/PTSD chronic and severe. The veteran was again admitted to a VA hospital for treatment of PTSD from April 1989 to June 1989. The hospital summary report noted the veteran presented with complaints of hopelessness, depression, suicidal ideations without plans, anxiety, nightmares of war, paranoia, and drinking. He was treated with Sinequan and then Taractan, 50 mg. It was noted that the veteran "continued to feel the need to treat anxiety and restlessness by chemical means rather than relaxation techniques or diversional activities, and had periods of agitation when drug seeking behavior did not acquire desired results." He was discharged to await placement in a domiciliary facility. A VA hospital summary report shows that the veteran was readmitted 10 days later in June 1989 for approximately one month. He initially returned complaining of decreased sleep, hopelessness, decreased appetite, crying spells and weight loss. During this hospitalization, he improved with treatment sessions. When space became available at a domiciliary, the veteran was discharged to that facility. The veteran was noted to be unemployable. The veteran returned to the hospital in August 1989 for a one month stay for alcohol and cocaine dependence. He was admitted to the Addiction Treatment Unit. The hospital summary report notes that during his admission, the veteran requested transfer to the PTSD unit, but his request was denied. At discharge he was competent and could resume his prior level of activity. A VA hospital summary report showed that the veteran was again admitted to the Addiction Treatment Unit from January to February 1990. The veteran stated that, since his last admission, he had been usually drinking a case of beer and a quart of vodka a day. He had also been using cocaine regularly. No psychotropic drug was administered but he was discharged with Antabuse. His PTSD was not shown to have been treated during this hospitalization. A VA hospital summary report, dated in August 1990, shows that the veteran was admitted into the PTSD treatment program in April 1990. He claimed he had difficulty sleeping and had constant flashbacks. He also denied alcohol or street drug use. The veteran completed the program and at discharge his prognosis was guarded. He was considered "unable to work due to severe ongoing symptoms of PTSD." In a written statement, dated in February 1991, the veteran stated that he had been repeatedly hospitalized for a total of 22 months of the prior three years. He believed that the amount of hospitalization in the past and the need for repeated hospitalization in the future for his PTSD severely impaired his ability to establish and maintain effective or favorable relationships with people. He also stated that his psychoneurotic symptoms were of such severity and persistence that there was a severe impairment in his ability to obtain or retain employment. The veteran was afforded a VA psychiatric examination in August 1991. The examination report noted that the veteran had last worked in January 1988 doing day labor. He claimed to have had over 100 jobs since service, the longest being about a year. He related his many hospitalizations. The examiner noted that for some reason he had never gone back for outpatient treatment between admissions. He had not seen anyone since January 1991 and had not been on medication since January 1990. The main symptoms of PTSD were nightmares, intrusive thoughts, depression and some guilt. He did not mention flashbacks. The veteran described a life alone watching TV, smoking and drinking coffee. He claimed to have no friends, hobbies or social life. He had no plans for the future and no motivation to look for work. Objectively, the veteran appeared somewhat tense and rather flighty but there was no evidence of depression. His affect was adequate and appropriate and his thinking was not concrete. There was no evidence of any frank auditory, visual hallucinations. The psychiatric diagnosis was PTSD. Multiple substance abuse through the years, probably rather severe, was also noted. The veteran denied any alcohol or cocaine abuse since January 1990. In conclusion, the examiner stated: He is describing significant social and vocational impairments but he is not attempting to get any sort of help on an outpatient basis. Frankly, I do not understand this. A VA hospital summary report, dated from November to December 1991 indicated that he was admitted complaining of disturbing flashbacks for the past 4 months. On admission he had been on no medications for the past 1 to 1 1/2 years. During his stay he had intermittent crying spells and was started on an anti- depressant. His mood improved as did the crying spells following use of the medication. He interacted well with staff and patients during the hospitalization. The final diagnoses were: PTSD, exacerbation by history; and ethanol abuse. A VA hospital summary report, dated from February 1992 to March 1992, indicated that the veteran was admitted with complaints of flashbacks and hearing his dead buddies. He admitted to recent drinking and cocaine use. He basically reported as having no work, no job, no home. The veteran was placed on Doxepin and Ativan during his stay. He failed to return after a weekend overnight pass in March 1992 and was given an irregular discharge after his absence was declared to be unauthorized. A letter from the Federal Bureau of Investigation, dated in October 1992, indicated that the veteran was being sought by federal and state authorities in connection with three bank robberies. The veteran subsequently failed to report for two scheduled VA psychiatric examinations in May 1994 and July 1994. His representative has suggested that it is unlikely that he would report for additional examinations. This, then represents the last evidence on file. The Board finds, based on the evidence of record and the above criteria, that the veteran's PTSD symptoms, at least in the early 1990's do warrant an increased evaluation of 50 percent. The opinion of the examiner from the most recent VA examination was that the veteran had significant social and industrial impairment. Coupled with the objective findings from that examination and the veteran's history, the Board finds that the veteran's PTSD symptoms represent considerable social and industrial impairment. It is noted, however, that this decision is made on evidence on file from earlier in the appeal. More recently his status is unknown as he did not report for examinations nor does the record otherwise shown that he has had recent or continuing treatment for his psychiatric disorder. The Board further finds that an evaluation, in excess of 50 percent, is not warranted for the veteran's PTSD. At the time of the 1991 VA examination, the veteran had gone for approximately one year without any psychotropic medications. The Board notes that during each subsequent hospitalization the veteran was treated, at least in part, in the Addictive Drug Treatment Unit. Historically the veteran has a long history of alcohol and drug dependence. It appears that his recent exacerbations of symptoms were caused by such substance abuse. Also, although the veteran has not had a job in a number of years it was the observation of the VA medical examiner that the veteran exhibited no motivation to seek a job. Moreover, the record indicates that at the time of the more recent hospitalizations, the veteran's condition improved with the treatment that was rendered. The record, as noted, does not contain recent information which would lead to the conclusion that more than considerable social and industrial impairment has been demonstrated. The veteran's service representative has put forth the argument that the veteran's PTSD symptoms warrant a rating for severe disability because the veteran's alcohol and drug dependence is actually an effort to self-medicate his PTSD symptoms. The Board notes that the RO has denied service connection for the veteran's substance dependence in the past. Also, the veteran has consistently failed to attend outpatient treatment programs between his hospital admissions while continuing to abuse alcohol and cocaine. Furthermore, the hospital summaries and other evidence on file do not appear to show a correlation between times when his PTSD is worse and times when his substance abuse is worse. Such correlation would be expected if there were any type of relationship. In addition, the representative's opinion, by itself, is not considered competent evidence on this issue. See Layno v. Brown, No. 92-353 (U.S. Vet.App. May 27, 1994); Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The Board finds no medical clinical or opinion evidence in the claims folder to support the representative's argument. Thus, in the Board's opinion, the PTSD symptoms, when considered in light of his history and the current psychiatric classifications, result in considerable impairment of social and industrial adaptability, but no more; therefore, not more than a 50 percent rating is warranted. In reaching its conclusion, the Board notes that despite some significant psychiatric symptoms, the veteran's speech, behavior, and manner are consistently recorded as "appropriate," and his thinking is unimpaired. He has required medications only intermittently. The Board also finds that the evidence discussed above does not suggest such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards, so as to warrant the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). Although the veteran was hospitalized twice from 1991 to 1993 the Board notes that these were primarily for treatment of his addictions. Thus, we conclude that the veteran's PTSD symptoms have not required frequent periods of hospitalization recently, nor do they present a marked interference with employment to an extent that the regular schedular provisions can not be applied. ORDER A 50 percent disability evaluation for PTSD is granted subject to the law and regulations governing the award of monetary benefits. MICHAEL D. LYON 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.