BVA9501612 DOCKET NO. 92-11 080 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an increased evaluation for post-traumatic stress disorder, currently evaluated as 70 percent disabling. 2. Entitlement to a total disability evaluation for compensation purposes pursuant to the criteria of 38 C.F.R. § 4.16(c) (1993). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his sister ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from March 1943 to December 1945. This appeal arose from a July 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The RO granted entitlement to service connection for post-traumatic stress disorder which was assigned a 50 percent evaluation. The RO affirmed the above determination in November 1990. The RO granted an increased evaluation of 70 percent for post- traumatic stress disorder when it issued a rating decision in May 1991. The foregoing determination was affirmed by the RO in July and November 1991. The Board of Veterans' Appeals (Board) REMANDED the case to the RO for further adjudicative procedures in June 1993. In September 1993 and June 1994, the RO issued rating decisions affirming the determinations previously entered. The case has been returned to the Board for final appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that post-traumatic stress disorder is more disabling than currently evaluated, thereby warranting entitlement to an increased evaluation. He further contends that his psychiatric disability has rendered him unemployable, and directs the Board's attention to written opinions from his attendant VA psychiatrists on file noting that he is unable to work. 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 a grant of an increased evaluation for post-traumatic stress disorder, and that the record supports a grant of a total disability evaluation pursuant to 38 C.F.R. § 4.16(c). FINDINGS OF FACT 1. Post-traumatic stress disorder is productive of not more than severe social and industrial impairment. 2. Post-traumatic stress disorder renders the veteran unable to obtain and maintain any type of substantially gainful employment. CONCLUSIONS OF LAW 1. The schedular requirements for an evaluation in excess of 70 percent for post-traumatic stress disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.132, Diagnostic Code 9411. 2. The requirements for a total disability evaluation for compensation purposes pursuant to the criteria of 38 C.F.R. §§ 4.16(c) have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.16(c), 4.132, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially the Board finds that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). More specifically, it is at least plausible that post-traumatic stress disorder has increased in severity and has rendered him unable to work. The Board is satisfied that a result of the June 1993 remand of the appellant's case to the RO for further adjudicative procedures, all relevant facts have been properly developed, and that no further assistance to the claimant is required in order to comply with 38 U.S.C.A. § 5107(a). I. Entitlement to an increased evaluation for post-traumatic stress disorder, currently evaluated as 70 percent disabling. In accordance with 38 C.F.R. §§ 4.1 and 4.2, and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of post-traumatic stress disorder. The Board has found nothing in the historical record which would lead to a conclusion that the current evidence of record is inadequate for rating purposes. VA conducted a special psychiatric examination of the appellant in October 1989. The examiner noted that the most significant of his symptoms had been recurrent depression which had resulted in three psychiatric hospitalizations and one significant suicide attempt involving an overdose of prescription medications. The examination concluded in a diagnosis of posttraumatic stress disorder, chronic, severe. The veteran and his sister provided testimony pertaining to the disabling manifestations of post-traumatic stress disorder at RO hearings held in July 1990 and March 1991. At an April 1991 VA special psychiatric examination, the veteran provided a history of exposure to personal life threatening events experienced during World War II combat action. The examiner noted that virtually all of the appellant's adult life after the war had passed without his ever being able to work. His social skills had diminished to nothing. His entire adult life had been spent completely isolated from his community. He only associated with his brothers and sisters. He never established any outside relationships and had never married. He could only tolerate a few minutes of conversation and then he had to walk away even from his family. The veteran described himself as being severely depressed throughout his adult life. He received treatment for depression from his brother. After the death of his brother approximately 11 years previously, the veteran's psychological status deteriorated further. He had had four suicidal overdoses requiring prolonged hospitalizations in 1983, 1984, and twice in 1986. The examiner noted that the veteran's symptoms of post- traumatic stress disorder had been maximal since 1945. He had had a very serious sleep disorder with frequent nightmares. He was so disturbed that he was unable to sleep in a bed. He slept by sitting in a chair. The appellant had frequent nightmares that awakened him screaming, such as remembering artillery fire. Whenever he felt he was in a bombing raid, he crawled under his bed and scrambled to protect himself. The claimant stated that he had constant and frequent flashbacks. Whenever a low flying jet passed over his house, he felt himself right back in a battle environment. An odor from a nearby plant made him feel he was back burying corpses. He stated that he experienced intrusive memories daily. The claimant stated that when his depression was intense, he noticed agitation, anger and irritability. He tried to deal with his depression by walking to clear his mind. Sometimes he was able to put his thoughts to rest. He was being seen by a VA psychiatrist every three weeks. The veteran stated that his anxiety was made much worse to the point of agitation by talking about combat or by seeing such things as any kind of violence on television. He stated that he was completely emotionally numb. The VA examiner summarized by noting that the veteran showed signs of severe post-traumatic stress disorder. On mental status evaluation the veteran attended the examination with his sister described as his virtual caretaker. During the course of the examination he became anxious and turned to her for throat lozenges to help him with a dry mouth and when he became too agitated to speak. It was clear that it was her emotional support that allowed the appellant to remain somewhat functional. He appeared to be agitated, and was irritable. While he attempted to be cooperative, he needed frequent reassurance and redirection from his sister. He complained frequently of being unable to remember events or to concentrate on them, but when allowed to calm down from his agitation, he could recall events with accuracy. There did not appear to be any evidence of a thought disorder. The veteran acknowledged severely depressed feelings, but denied suicidal or homicidal ideation. His insight into his condition was adequate as was his social judgment. The examination diagnosis was post-traumatic stress disorder, severe. In a June 1991 letter, the appellant's attending VA psychiatrist noted that the veteran had been unable to hold a job and had a very restricted social life. His sister was his main support system. He was chronically depressed and had frequent symptoms relating to his war experiences, particularly with respect to war related dreams and intrusive thoughts. He had also attempted suicide several times because of his symptoms. In a September 1991 letter, the psychiatrist noted that the appellant continued to received psychotherapy on a regular basis. There had been no change in his condition. Similar information was provided on earlier and later dated correspondence on file. In a December 1991 letter, the veteran's sister provided her knowledge and observations of his disablement due to manifestations of post-traumatic stress disorder. On file are VA mental health clinic records pertaining to treatment of the veteran in 1993. Post-traumatic stress disorder is evaluated as 70 percent disabling under diagnostic code 9411 of the VA Schedule for Rating Disabilities. The 70 percent evaluation requires that the veteran have psychoneurotic symptoms productive of severe social and industrial impairment. 38 C.F.R. § 4.132, Diagnostic Code 9411. As the Board discussed in the foregoing paragraphs, VA examiners have uniformly classified the veteran's symptomatology as severe in nature. The veteran suffers from anxiety, flashbacks, startle reaction, nightmares, depression, etc., all productive of a severe disability which has been recognized by VA examiners in the clinical setting. Post-traumatic stress disorder has adversely affected the veteran's daily functioning in a severe manner. In order to qualify for a 100 percent evaluation for post- traumatic stress disorder, the appellant would have to demonstrate that the attitudes of all his contacts except the most intimate are so adversely affected as to result in his virtual isolation in the community. While the veteran does lead a socially isolative existence; nonetheless, he maintains contact with his sister and other family members. He would have to have 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, etc. The evidentiary record shows that these criteria have not been satisfied. While the claimant does suffer from significantly disabling manifestations of post-traumatic stress disorder, he has managed to remain oriented and articulate, as has been demonstrated on examinations and at RO hearings. Undoubtedly his social contacts are quite limited; however, he has not been shown to be isolated in his community. He has maintained contact with reality. Post- traumatic stress disorder has clearly not resulted in total disablement for purposes of a 100 percent evaluation under diagnostic code 9411. The Board observes that there does not exist a question as to which of two or more evaluations would more properly evaluate the severity of post-traumatic stress disorder. 38 C.F.R. § 4.7. Post-traumatic stress disorder has not rendered the veteran's disability picture unusual or exceptional in nature. It has not required frequent recent inpatient care as to render impractical the application of regular schedular standards, thereby precluding assignment of an increased evaluation on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). Accordingly, the Board finds that post-traumatic stress disorder, having been shown by the evidence of record to be productive of not more than severe social and industrial impairment, does not warrant a grant of an increased evaluation. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.132, Diagnostic Code 9411. II. Entitlement to a total disability evaluation for compensation purposes pursuant to the criteria of 38 C.F.R. § 4.16(c). The veteran is rated as 70 percent disabled for post-traumatic stress disorder. This is his only service-connected disability. In order to qualify for a total evaluation for compensation purposes pursuant to 38 C.F.R. § 4.16(c), his psychiatric disability must be shown to preclude him from securing or following a substantially gainful occupation. This is the veteran's case. In earlier paragraphs, the Board discussed correspondence from the veteran's attendant VA psychiatrist. Additional correspondence of file dated in October 1990 from another attendant VA psychiatrist shows the veteran had never been able to work since his return from service during World War II. In a February 1991 letter, this same psychiatrist noted that since the war, the veteran had only been able to work for one year in 1954. In his correspondence the VA psychiatrist expresses the opinion that the veteran meets the criteria for a 100 percent evaluation. Another VA psychiatrist noted in correspondence on file that one of the manifestations of post-traumatic stress disorder was the veteran's inability to hold a job, and that it was unlikely he would ever be able to work again. VA attendant psychiatrists have repeatedly noted that the veteran is unemployable because of psychiatric symptomatology associated with post-traumatic stress disorder. As his only service- connected disability is post-traumatic stress disorder, evaluated as 70 percent disabling, and as this disorder has been found to preclude him from securing or following a substantially gainful occupation, the Board finds that a 100 percent evaluation for compensation purposes pursuant to the criteria of 38 C.F.R. § 4.16(c) is warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.16(c), 4.132, Diagnostic Code 9411. ORDER Entitlement to an evaluation in excess of 70 percent for post- traumatic stress disorder is denied. Entitlement to a total disability evaluation for compensation purposes pursuant to the criteria of 38 C.F.R. § 4.16(c) is granted, subject to applicable criteria governing the payment of monetary awards. ALBERT D. TUTERA 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.