BVA9501102 DOCKET NO. 91-38 512 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased evaluation for post-traumatic stress disorder, currently evaluated as 30 percent disabling. 2. Entitlement to a total disability rating for compensation on the basis of individual unemployability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran had active service from January 1948 to October 1953. He was a prisoner of war of the North Korean government from December 1950 to August 1953. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In addition to post-traumatic stress disorder (PTSD), service connection is in effect for residuals of frozen feet and for colon polyps, each rated as 10 percent disabling. A combined rating of 40 percent is in effect. CONTENTIONS OF APPELLANT ON APPEAL Essentially, it is contended that an increased evaluation is warranted for PTSD. Additionally, it is argued that this disorder and the other service-connected disorders render the veteran unemployable. It is asserted that the veteran is antisocial and unable to get along with others. He has no friends and is not involved in any kind of social activity. 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 is in favor of granting an increased rating for PTSD and is in favor of total evaluation based on individual unemployability due to service-connected disabilities. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. PTSD is primarily manifested by anxiety, diminished sleep, irritability, difficulty with authority and the inability to get along with others; it is productive of severe social and industrial impairment. 3. Service connection is in effect for PTSD, rated as 70 percent disabling as a result of this decision; residuals of frozen feet, rated as 10 percent disabling; and colon polyps, rated as 10 percent disabling. A combined service-connected disability rating of 80 percent is now in effect as a result of this decision. 4. The veteran's service-connected disorders are sufficiently severe as to preclude him from obtaining and maintaining a substantially gainful occupation consistent with his education and employment experience. CONCLUSIONS OF LAW 1. An increased rating of 70 percent for PTSD is warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.132, 4.7, Part 4, Diagnostic Code 9411 (1993). 2. The veteran is unemployable due to his service-connected disorders, and a total rating on account of individual unemployability due to service-connected disorders is warranted. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. § 4.16 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented claims which are plausible. Further, we are satisfied that all relevant facts have been properly developed. There is no indication that there are additional records which have not been obtained which would be pertinent to the veteran's claims. Thus, no further assistance is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). Godwin v. Derwinski, 1 Vet.App. 419 (1991); White v. Derwinski, 1 Vet.App. 519 (1991). Entitlement to an Increased Evaluation for PTSD A brief history of the events leading up to this appeal as to this issue may be briefly summarized. Service connection was established for psychoneurosis, anxiety state, upon rating decision in February 1954. A 10 percent rating was assigned, effective from October 1953. This rating was reduced to a noncompensable rating upon rating determination in July 1959. A 10 percent rating, effective from December 1985, was assigned by the RO on rating decision in June 1986. In March 1987, the Board denied an appeal seeking a rating in excess of 10 percent for a neurosis. Upon rating decision in October 1987, the 10 percent rating was increased to 30 percent, effective from August 1987. The veteran's service-connected psychiatric disorder was reclassified as PTSD at the time of this rating action. This appeal ensued following an August 1990 RO determination which confirmed and continued the 30 percent rating. The severity of the veteran's service-connected psychiatric disorder is assessed by VA for compensation purposes by application of the criteria set forth in Diagnostic Code 9411 of the VA Schedule for Rating Disabilities (Schedule), 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. In Hood v. Brown, 4 Vet.App. 301 (1993), the 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 for purposes of meeting the statutory requirement that the Board articulate "reasons or bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a precedent opinion, dated November 9, 1993, the General Counsel of 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 (Nov. 9, 1993). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c) (West 1991). With these considerations in mind, the Board will address the merits of the claims at issue. In a June 1990 special psychological evaluation, Brenda Simons, M.S., gave the opinion that PTSD had rendered the veteran permanently and totally disabled for any gainful employment. The veteran was described as exhibiting fleeting eye contact and he seemed tense and agitated throughout the evaluation. He was practically non verbal, unable to tolerate pressure, and had to get up and leave the office to regain composure. Affectively, he seemed unstable and in poor control. An August 1990 special psychiatric examination report by VA shows that PTSD was considered to be mild in nature. Mild symptoms were described on examination and the physician commented that it was difficult to assess the patients described mental status on the above noted psychological examination, other than on the basis of exaggeration. In February 1992 the Board remanded the case for a further psychiatric examination and a social and industrial survey. A VA psychiatric examination was conducted in March 1992. No abnormal findings were described. The severity of PTSD was not assessed, but the clinical findings were such as to indicate no more than mild psychiatric impairment. A VA social and industrial survey was conducted in June 1992. Restlessness and difficulty sleeping were described. Recurring dreams of the veteran still being a prisoner of war were described. It was also noted that the veteran was not taking medication for or seeking help with PTSD or any other problem. The social worker concluded that the veteran was still experiencing PTSD and was impaired to the point that he could no longer work, even in a part time capacity. The RO then return the case to the Board for further appellate review, at which time the Board was faced with the same incongruity in the evidence that existed at the time of the February 1992 Remand order. In November 1992, the claim was remanded for additional evidentiary development, to include a social and industrial survey and a psychiatric examination. The survey was conducted in April 1993, and the examination was conducted in June 1993. The survey report by a field examiner indicates that the veteran last worked in 1988 when he was self-employed. The veteran stated that when he stopped working in 1988, he filed for and received Disability Social Security. He said that he was no longer able to work because he could not get along with others and because he was antisocial. The veteran's wife verified that he was antisocial as he did not have any friends and was not involved in any formal social interests or activities of any kind. An earlier employment statement dated in December 1992 indicated that the veteran had completed two years of college. It further indicated that he did part time advertising and sales work in the music business at the time he ceased employment in 1988. On psychiatric examination, the veteran's primary complaint was decreased sleep. He said that he slept a maximum of 6 1/2 to 7 hours per night. He experienced dreams related to combat which affected his sleep about once a month, and he described a depressed mood for approximately two to three days after the dreams. While he had not worked since 1988, he reported that his back and foot problems had especially lead to disability. He stated that he had received Social Security benefits for approximately five years. On examination, the physician described the appellant as well dressed and groomed. He was pleasant and cooperative, and his mood and affect were normal. While the veteran reported diminished concentration, the examiner saw no evidence of this on the examination. The appellant's insight and judgment were good. The examiner noted that the veteran described mild anxiety. He also described irritability, difficulty with authority and problems getting along with others. In March 1994 the Board Remanded the case for the third time for the purpose of obtaining Social Security Administration records concerning the reported award of disability benefits and the medical evidence upon which that award was based. This evidence is now before the Board. It reveals that the award of social security disability benefits was predicated on "anxiety related disorders". An accompanying report of a private psychological evaluation was among the records. It offered diagnoses of a post traumatic stress disorder and a personality disorder with schizoid and paranoid features. Psychosocial stressors were considered severe and a global assessment functioning score of 50 was indicated. In a separate report to the State Disability Determination Section, the same psychologist stated that the veteran would be expected to have very serious difficulty relating to people, remembering things, and concentrating and that this would prevent him from completing work and social tasks. This evidence is probative and must be given serious consideration. Murincsak v. Derwinski, 2 Vet.App. 363 (1992) We are not going to Remand this case for a fourth time to further attempt to resolve what appears to be a difference of opinion between VA physicians on the one hand, and VA social workers and private psychologists on the other hand. Nor can the Board any longer decide an appeal on the basis of its own medical expertise. Colvin v. Derwinski, 1 Vet.App. 171 (1991). Based on the evidence of record, we find that the service-connected PTSD produces severe social and industrial impairment and that a 70 percent rating is in order. Reasonable doubt has been resolved in the veterans behalf. 38 U.S.C.A. 5107(b) (West 1991). Entitlement to a Total Rating Based on Individual Unemployability It is also contended that a total rating based on individual unemployability is warranted. The record shows that the veteran was granted Social Security disability benefits in 1988. The award was based almost exclusively on symptoms associated with PTSD. Some of the medical records alluded to the existence of a foot disorder and back disorder. The only foot disorder here is residuals of frozen feet, for which a 10 percent service- connected disability rating is in effect. The veteran does not have service connection for a back disorder. On VA examinations in 1993 the residuals of frozen feet and the colon polyps were shown to be asymptomatic. In any event, the evidence is at least in equipoise as to whether the service-connected disabilities preclude gainful employment compatible with the veterans education and occupational experience. This was the conclusion of two private psychologists, a VA social worker and the Social Security Administration. The evidence to the contrary from VA physicians, is not considered sufficient to support a denial of the claim under current laws and regulations and precedent decisions of the United States Court of Veterans Appeals. As such, a proper basis is afforded for granting a total rating for compensation purposes based on individual unemployability. ORDER Entitlement to an increased rating for PTSD is granted to the extent indicated, subject to laws and regulations governing the payment of monetary awards. Entitlement to a total rating based on individual unemployability is granted to the extent indicated, subject to laws and regulations governing the payment of monetary awards. BRUCE E. HYMAN 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.