BVA9501555 DOCKET NO. 92-16 670 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an increased evaluation for post-traumatic stress disorder (PTSD), currently evaluated at 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Nancy R. Kegerreis, Associate Counsel INTRODUCTION The veteran served on active duty from June 1968 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) from June 1991 and August 1994 rating decisions by the Department of Veterans' Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied an increased evaluation for PTSD. During the course of the appeal the veteran raised the issue of entitlement to secondary service connection for alcoholism. The RO denied the claim following a remand by the Board in December 1993. The veteran's representative disagreed with the decision in November 1994, but the matter has not been developed for review by the Board. The claim is no longer inextricably intertwined with the current issue in view of the Board's decision with respect to the evaluation of PTSD and the reported remission of the veteran's alcoholism. The claim is referred to the regional office for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, essentially, that the current rating assigned to his disability is inadequate, as the problems he has experienced in relation to his PTSD have increased significantly in severity. He alleges that he suffers from depression, irritability, and anxiety, which make it difficult for him to get along with other people and impair him in his ability to obtain or retain employment. He states that he has had approximately 25 jobs since he was discharged from the service and that frequent nightmares prevent him from sleeping. He believes that he should receive at least a 50 percent disability evaluation. 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 evaluation for PTSD. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran's PTSD produces severe social and industrial impairment. CONCLUSION OF LAW The criteria for a 70 percent evaluation for post-traumatic stress disorder have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1-4.16, 4.125-4.132, Diagnostic Code 9411 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background As a preliminary matter, the Board notes that the veteran's claim for an increased evaluation is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds that he has presented a claim which is plausible. The veteran was initially awarded a 10 percent evaluation for PTSD in June 1991, effective from January 1991. He filed a notice of disagreement in November 1991. The Board is also satisfied that all relevant and available facts have been properly developed following the December 1993 remand. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. The veteran is service-connected for residuals of shell fragment wounds of the right thigh (10 percent) and other multiple wound residuals ( zero percent), in addition to PTSD. The wounds were incurred in service in Vietnam with the United States Marine Corps. The veteran's awards from service include the Purple Heart Medal and the Combat Action Ribbon. PTSD was first reported in March 1991 when the veteran was evaluated at a VA outpatient clinic and he was referred to a PTSD treatment program after being hospitalized later that month for treatment of alcoholism. He showed marked and continuous levels of anxiety, but was described as a determined and hard-working individual who was emphatic about leaving the hospital to find a job. In February 1992, the veteran was accorded a hearing before the RO. He testified that he was not then receiving counseling for PTSD, as his mother had been ill and he had not been able to afford the time. He admitted that he had been treated for substance abuse in 1991 and that he had had approximately 25 jobs since service, the longest period of employment being four and a half years. He stated that it was difficult to keep a job because he could not get along well with other people. Because he was continually awakened by nightmares and tossed and turned all night, he drank alcohol to help him sleep. At one time he had been prescribed an anti-depressant, which seemed to help, but he found the cost to be prohibitive. He believed that if he had never gone to Vietnam, he would have done better with his life. He said that, occasionally, present experiences would vividly remind him of Vietnam and that he did not like being around a lot of people whom he did not know. A VA disability evaluation examination in March 1992 noted that the veteran had been in Vietnam for three and a half months, had seen a lot of death, and had been scared all the time. He complained of constantly feeling tense and reported that he had a bad temper. He believed that his temper caused him to have trouble getting along with people and to have lost his wife. He was awakened frequently by nightmares and admitted that he had been drinking heavily a year before. Objective findings noted that the veteran was extremely nervous and shaky throughout the interview. It was especially hard for him to describe events relating to the war. When he did refer to the war, he shook even more and became quite angry. He had normal orientation and memory and appeared quite sincere, but seemed to be alienated from the mainstream of life. The diagnosis was post-traumatic stress disorder, severe, secondary to combat. Counseling records from August 1991 to February 1992 noted inter alia that the combination of the veteran's service connected and nonservice connected disabilities had greatly impacted on his employability and that he had not been able to overcome the effects of these limitations. It was felt that his unstable work history, current struggle with substance abuse, and acceptance of his PTSD had placed severe restrictions on his ability to obtain and retain employment. With the assistance of counseling, he decided to enroll in a two-year training program in which he would be working independently without having to deal with large numbers of people and in which the physical demands would take his physical limitations into account. A VA psychiatric examination in January 1994 noted that the veteran reported that he had been in Vietnam for three and a half months and that he had seen much killing and dying. He would not go into details. At that time he was employed running a lathe in a machine shop and was also going to school part time. He complained of being unhappy, lonely, angry and not interested in anything. He stated that he had to drink beer in order to sleep well. He saw elbows blown to pieces in his dreams. He was not interested in socializing and stayed home most of the time. Objective findings noted that the veteran was extremely tense and restless, with marked anxiety. He was preoccupied with little spontaneous talk, and there was almost no eye contact. His range of affect was very restricted and, at times, somewhat irritable, although orientation was essentially normal. The diagnosis was PTSD, prolonged and severe. This examiner opined that it appeared that PTSD was seriously compromising the veteran's employability. On a VA Social and Industrial Survey in April 1994, it was reported that the veteran was divorced and had been in a live-in relationship for about a year. Reportedly, the relationship was breaking up. The veteran had worked about seven different jobs since 1989, including about one year as a molder and several months in a machine shop and as a self-employed mechanic. He was bothered by noise and uncomfortable around people. He avoided shopping malls. The psychiatric social worker conducting the survey noted that the veteran carried a lot of survivor guilt from Vietnam. He had flashbacks and intrusive thoughts of rocket attacks and booby traps. An additional VA psychiatric examination in July 1994 revealed a history of alcoholism in service, allegedly because there was not much else to do. The veteran denied any social, medical, or performance effects from his drinking. He stated that since discharge from the service, he had worked at several different trades and had had about 20 jobs, which he would leave because he got bored or could not get along with people. He had continued to drink since service "quite a bit." Although he had been treated four years previously for alcoholism, he had had no other formal psychiatric care over the years. He did not admit to having symptomatology characteristic of PTSD. He felt that he made a mistake in serving in the military and regretted his experience, stating that he had "lost his life" because of his decision to serve. To him, the Vietnam experience was different from the expectations that he had had about service and he stated that he had "lost his happiness" then and would never be able to get it back. During the course of the mental status examination, the examiner noted that the veteran initially tended to "play up" an appearance of being quite anxious, "juttering" his legs and varying the volume of his voice. As the interview progressed, however, he decreased this type of behavior and instead gave an appearance of being somewhat self-absorbed in his feelings regarding his military career. The examiner had the impression that the veteran related to him in a generally passive-aggressive manner, generally implying that the examiner could not understand why his decision to serve in the military would have such profound effects on his future capacity for happiness. The veteran denied symptoms of major depression or PTSD, but did meet the criteria for dysthymic disorder. He evaded questions relating to his alcoholism and tended to minimize its effects, again scapegoating his Vietnam experiences, as essentially being the cause of his lack of occupational stability or success. The diagnoses were alcohol dependence and dysthymia versus organic mood disorder, as secondary to alcoholism. The examiner ventured his opinion that he could not rule out the possibility that the dysthymic condition might have been caused by the alcoholism because of the continuous nature of the veteran's drinking. He would also consider some narcissistic or passive/aggressive traits. He believed that the overall degree of psychiatric impairment was minimal to mild. Further reports of training, dating from June 1993 through July 1994, reveal that in August 1993 the veteran had been enrolled in an Associate Degree program in Engineering Technology. He had had to drop out of classes in March 1994 because of medical reasons, as tests had revealed the possibility that he might have multiple sclerosis. He was then working full time in a machine shop. In July 1994, the veteran reported that he was ready to go back to school in the fall and that, depending on what was offered in the evenings, he hoped to carry a full schedule. He continued to work a full-time day job. The counselor noted that although the had received a diagnosis of multiple sclerosis, he appeared to be in very good spirits and maintained a positive attitude. II. Analysis Disability evaluations are based upon the average impairment of earning capacity as contemplated by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2 (1993). Regulations provide that each disability be evaluated in light of the veteran's medical and employment history, and from the point of view of the veteran's working or seeking work. See Schafrath v. Derwinski, 1 Vet.App. 589, 592 (1991). The VA compares medical findings contained in the claims file to criteria in the VA Schedule for Rating Disabilities. See 38 C.F.R. § 4.132, Diagnostic Code 9411 (1993). The veteran's medical records show that a diagnosis of PTSD was confirmed in March 1992. The disorder was characterized as severe, secondary to combat. The examiner in January 1994, also provided a diagnosis of PTSD, finding that it was prolonged and severe and was seriously compromising the veteran's employability. Although the July 1994 VA mental status examination indicated a primary diagnosis of alcohol dependence and dysthymia, with the psychiatric impairment considered to minimal to mild, the Board finds that this examiner's diagnoses and classification of the degree of psychiatric impairment is not determinative, as the entire record must be taken into consideration. See 38 C.F.R. § 4.130 (1993). It is unclear whether the examiner had the claims file available at the time of his examination for a longitudinal review of the record. In any event, the diagnosis of PTSD is well established. The veteran's post-traumatic stress disorder is currently rated at 10 percent, effective from January 1991, under 38 C.F.R. § 4.132, Diagnostic Code 9411 (1993). A 10 percent disability rating encompasses emotional tension or other evidence of anxiety productive of mild social and industrial impairment. If manifestations of post-traumatic stress disorder result in definite impairment in the ability to establish or maintain effective and wholesome relationships with people and result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment, a 30 percent disability evaluation is assigned. To be equivalent to a 50 percent evaluation, the manifestations of symptoms should be of such severity and persistence that there would be a considerable impairment of effective or favorable relationships with people and of the ability to obtain or retain employment. A 70 percent evaluation requires that the psychoneurotic symptoms be of such severity and persistence that there is severe impairment in the ability to establish and maintain effective or favorable relationships with people and to obtain or retain employment. For a 100 percent evaluation to apply, the attitudes of all contacts except the most intimate must be so adversely affected as to result in virtual isolation in the community. The symptoms would have to be so totally incapacitating that they border on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities, with a demonstrable inability to obtain or retain employment. In reviewing the medical records and history of the veteran's symptomatology, the Board notes that two examiners who provided a diagnosis of PTSD found the veteran to be severely impaired due to this psychoneurotic disorder. Vocational rehabilitation records reveal an unstable work history, with job performance compromised by psychiatric problems. The Board recognizes that the veteran has often secured work despite his PTSD, but care must be taken in such cases that an emotionally sick veteran is not underevaluated. See 38 C.F.R. § 4.130 (1993). The Board finds that the veteran's PTSD symptoms have severely impaired his social relationships and his ability to retain regular employment. Accordingly, after reviewing all the evidence, the Board is persuaded that a 70 percent evaluation most nearly comports with the veteran's degree of social and industrial impairment. In adjudicating an increased rating claim, the Board is required to consider and discuss the applicability of higher ratings as well. See Shoemaker v. Derwinski, 3 Vet.App. 248, 2153 (1992); Johnson v. Brown, 4 Vet.App. 508, 512 (1993). Although the Board has considered a 100 percent schedular evaluation, the evidence does not show the veteran is socially isolated in the community. In terms of employment, he has been able to attend school and, notwithstanding an uneven work record, has not had difficulty in obtaining work. In 1994 he was noted to have been working full time as a lathe operator. The Board has also considered the applicability of 38 C.F.R. § 4.16(c) (1993), relative to total disability ratings for compensation based on unemployability of the individual. There is no evidence, however, that the veteran's PTSD precludes him from securing or following a substantially gainful occupation. Nor does the case present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render the rating schedule inadequate and warrant an extra-schedular evaluation. See 38 C.F.R. § 3.321 (1993). Accordingly, the Board has determined that the veteran's PTSD is productive of a severe social and industrial impairment, warranting a 70 percent evaluation. ORDER A 70 percent evaluation for the veteran's post-traumatic stress disorder is granted, subject to legal criteria governing the payment of monetary benefits. CHARLES E. HOGEBOOM 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.