BVA9506547 DOCKET NO. 91-37 480 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an increased rating for post-traumatic stress disorder with major depression, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William J. Jefferson, III Counsel INTRODUCTION The veteran had active service from December 1942 to July 1945. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Boston, Massachusetts, Regional Office (RO). The case was remanded by the Board in August 1992 and March 1994 to obtain additional information. In an July 1994 rating decision, service connection for post-traumatic stress disorder was granted as part and parcel of the service connected anxiety reaction. It was determined that the service connected psychiatric disability, post-traumatic stress disorder with major depression, was 30 percent disabling. The veteran's Notice of Appeal Statement of Appeal Issues received in July 1991 may constitute a claim for a total rating based on individual unemployability. The RO must take appropriate action on this matter. In addition, a statement received from L. Friedman, M.D., in February 1992 may have constituted a claim for secondary service connection for hypertension. See EF v. Derwinski, 1 Vet App. 324 (1991). This matter was referred to the RO in the March 1994 remand, and according to a subsequent Rating Activity Case Development Form, the representative was either contacted, or was to be contacted. The RO should ensure that the necessary development is completed and is fully documented. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service connected psychiatric disorder, diagnosed as post-traumatic stress disorder with major depression, produces numerous symptoms which result in severe impairment in the ability to establish or maintain effective relationships. He maintains that a higher disability evaluation is warranted. 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(s). 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 in favor of entitlement to an increased evaluation of 50 percent for post- traumatic stress disorder with major depression. FINDING OF FACT The post-traumatic stress disorder with major depression results in nightmares and memories of war experiences, anxiety, hyperarousal, sleep disturbance, irritability, and depression, productive of considerable social and industrial impairment. CONCLUSION OF LAW A 50 percent disability evaluation for post-traumatic stress disorder with major depression is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.7, 4.129, 4.130, 4.131, Part 4, Code 9411 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran served during World War II in the European Theater. His decorations included the Silver Star Medal, Combat Infantry Badge and the Purple Heart. Service records show that he received treatment for anxiety state resulting from combat. VA clinical records from the late 1940's primarily show complaints of anxiety, depression, and sleep disturbance. The anxiety reaction was described as moderately severe in 1949. The psychoneurosis was rated as 50 percent disabling from 1945 and as 30 percent disabling from 1948. Private and VA clinical records from 1981 show prominent psychiatric symptoms of irritability, depression, and insomnia. At the time he was employed as a travel agent. Generalized anxiety disorder was diagnosed. In a November 1989 statement, L. Friedman, M.D., indicated that the veteran's anxiety and depression were each moderately severe. The veteran remained limited in his ability to work, socialize and raise a family. At VA psychiatric examination in May 1990, the veteran was described as very tense and depressed. Major depression, anxiety, and post-traumatic stress disorder symptoms were reported. In a December 1990 statement from the veteran's daughter, she reported that the veteran had a long history of psychiatric complaints, including anxiety and depression that had affected her family. The veteran testified that he had panic attacks from three to six times per week. May 1991 personal hearing transcript, hereinafter T. at 2. He stated the he was an irritable and angry person. T. 4. He reported that he would have two or three hours of interrupted sleep, and then he would go out and walk. T. 4. He stated that he last worked in 1985 at a travel business. T. 5. He averred that he retired from the travel business as a result of nervousness. T. 6. He stated that he did not get along with his wife or children. T. 6. He stated that he spent time with friends. T. 7. He indicated that he received counseling a couple of time per month. T. 8. In an April 1991 statement from Dr. Friedman, it was reported that the veteran had a stroke in October 1990 which left him with physical disablement, but his symptoms of nightmares of the war, jumpiness, fearfulness of loud noises, irritability, and anxiety had persisted. In a statement from Dr. Friedman, received in February 1992, it was reported that the veteran had sustained three debilitating strokes, which rendered him permanently unemployable. VA psychiatric examination was performed in October 1992. It was indicated that the veteran was unemployed. He had suffered from stroke two years previously, and an electroencephalogram in 1991 was mildly abnormal revealing bilateral cerebral dysfunction. It was reported that he slept two to three hours, walked outdoors, and wanted to get away from the closeness of his bedroom. He then tried to get back to sleep. He had a tendency to pace around his home. He would awaken in the morning feeling exhausted. He reported nightmares concerning his military experiences. It was indicated that when he watched television, he became uncomfortable and restless. He cried when thinking about the war. When someone came very close to him from behind, he jumped. He reported that he had a temper and he swore a lot, even with family or with friends. He had thought of suicide. He reported that he had lost touch with reality in the last couple of years. He continued to live with certain fear. He drove his car but he was afraid of traffic. He argued with his wife. He felt lonely and felt that everyone stayed away from him. He had no special hobbies, and if an interesting show captured his mind he felt O.K., otherwise his mind wandered. The mental status examination revealed that the veteran was cooperative. He gave coherent and relevant answers. His eye contact was good. He was described as deeply depressed. His affect was appropriate. He had been suicidal in the past. He still suffered from nightmares. He had startle reaction. It was indicated that he might have flashbacks and that he was so depressed that he was unable to recall past painful events. His sleep pattern was poor to fair, and he felt exhausted after awakening. He had guilt feelings from the war. He had great indecisiveness. His recall was satisfactory. His attention and concentration span were described as fair. Suicidal thoughts were denied, he had insight into his illness, and his judgment was satisfactory. The diagnosis was major depression, chronic, moderately severe with post-traumatic stress disorder features. At a June 1994 VA psychiatric examination, it was indicated that the veteran was moderately to severely impaired by his various psychological, neurological, and social conditions. He received psychological treatment and Valium for his condition. He continued to be alienated from his family. He indicated that his family had gone against him and that his only relief was to try to walk around to work off his agitation. He complained of war memories that saddened and angered him. He also became very irritable when he remembered things. He seldom talked about his war experiences. He used Valium when his hyperarousal continued. He was unable to sleep and he paced at night. He was agitated with D-day coverage on television. If he avoided reminders of his service combat he indicated that he had fewer nightmares. Concerning his depression, he indicated it was better if he expired. He showed intrusive recollecting, numbing of responsiveness, avoidance of stimuli, and hyperarousal, consistent with post-traumatic stress disorder. The mental status examination revealed that the veteran was very sad and bitter. Use of his remote memory proved difficult. He seemed more labile than one would expect based on his irritability due to post-traumatic stress disorder. He acknowledged depression with suicidal ideation. He was very irritable and he struck out at people emotionally, but he did not seem homicidal. His insight was limited, which was questionably related to his neurological impairment or character issues. His social judgment appeared impaired and the origin of the difficulty was unclear. The diagnoses were: Post-traumatic stress disorder; major depression with suicidal ideation; organic brain syndrome, question etiology. VA neurological examination was performed in June 1994. It was reported that since the veteran's several strokes, he was unable to carry a conservation and unable to write. The examination revealed that the veteran had neurological pathology which affected his speech, and both sides of his body, including face and upper and lower extremities. His gait was hemiplegia. He had hypertension status post left carotid endarterectomy, status post multiple strokes with central pain syndrome post stroke; peripheral neuropathy secondary to frozen feet; scars from left carotid and cervical spine with residuals of the stroke including right hemiparesis, incontinence, impotence, memory loss, dementia, mild dysphagia, left ptosis, right hemisensory abnormality. Analysis The Board has reviewed the entire evidentiary data of record, and concludes that the preponderance of the evidence is in favor of the veteran's claim of a 50 percent evaluation, but no more, for post-traumatic stress disorder with major depression. The severity of the service connected psychoneuroses are assessed by VA for compensation purposes by application of the criteria set forth in the Diagnostic Codes 9400-9411 of VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4. The veteran is currently in receipt of a 30 percent rating which is warranted when there is "definite" impairment in the ability to 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 is warranted when there is "considerable" social impairment and when psychoneurotic symptoms result in "considerable" industrial impairment. A 70 percent rating is warranted when there is "severe" social impairment and when psychoneurotic symptoms result in "severe" industrial impairment. In Hood v. Brown, 4 Vet. App. 301 (1993), it was stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" whereas the other terms were "quantitative." In an opinion from VA's General Counsel, it was concluded that "definite" was to be construed as "distinct, unambiguous and moderately large in degree." It represented a degree of social and industrial inadaptability that was "more than moderate but less than rather large." O.G.C. Prec. 9-93 (Nov. 9, 1993). With these considerations in mind, we will address the veteran's claim. The record shows that subsequent to the veteran's retirement from the work force in 1985, he sustained several strokes resulting in severe physical disablement. In that the veteran has severe physical disablement affecting his employability, scrutiny must be placed on the impact that his post-traumatic stress disorder with major depression has on his social and industrial adaptability. We note that his psychoneurotic symptomatology has continued, including anxiety, nightmares and memories of war experiences, hyperarousal, sleep disturbance, irritability and depression. The record also reveals discord and tenuous relationships with his family, in conjunction with and seemingly as a result of ongoing psychoneurotic pathology. In pertinent part, the veteran has related that his family has "gone against" him, although he apparently still lives with his wife and some of his children. However, the record also shows that he has maintained some friendships. He does not have any hobbies, and other than meeting with friends on occasion, there is no indication that he has any other social interaction. Based on the foregoing, it is apparent that the veteran has a multiplicity of psychoneurotic symptoms that impact on his social and industrial adaptability. It is apparent that his ability to establish or maintain effective or favorable relationships is compromised. His psychoneurotic symptoms also impact on his industrial adaptability, if he were employable. While the veteran has a tenuous relationship with his family, he continues to live at home and he is still able to maintain friendships, indicative of some social integration. Furthermore, we note that in 1989, Dr. Friedman characterized the veteran's anxiety and depression as moderately severe, while the 1992 VA psychiatric examiner characterized the psychoneurosis as moderately severe, and the 1994 VA examiner indicated that the veteran's psychological, neurological, and social conditions resulted in moderate to severe impairment. In view of the fact that the term "definite" contemplates "moderate" disability, and the clinical assessments of the psychoneurosis have been of disability between "moderate" and "severe," we are of the opinion that a rating of 50 percent, but not more, is in order. The 50 percent rating provides for disability which is between that which is "moderate" and that which is "severe". We do not find that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The psychoneuroses have not resulted in frequent periods of hospitalization. In addition, we are of the opinion that the 50 percent schedular rating is adequate. We base this opinion on the several psychiatric assessments of moderate to severe disability. We conclude that the preponderance of the evidence is in favor of a 50 percent disability evaluation for post-traumatic stress disorder with major depression. ORDER A 50 percent disability evaluation for post-traumatic stress disorder with major depression is granted, subject to the laws and regulations regarding the award of monetary benefits. NANCY I. PHILLIPS 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.