BVA9508382 DOCKET NO. 93-14 427 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to an effective date earlier than April 5, 1990, for assignment of a 100 percent schedular evaluation for post- traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from December 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. That decision granted a 100 percent rating for the veteran's service-connected post-traumatic stress disorder (PTSD) effective from April 5, 1990. The Board notes that the veteran claimed entitlement to service connection for residuals of exposure to Agent Orange in March 1989. He was informed that the matter was being deferred, pending the development of new regulations regarding such exposure. The criteria have now been promulgated, but the RO has not yet considered them. This matter is referred to the RO for the appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that he has actively pursued the claim for a 100 percent rating since March 1989, and that the 100 percent rating currently assigned should be effective from that time. He asserts that he is unable to work and that he left his job as a truck driver because he was unable to concentrate. 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 supports the assignment of an effective date of June 23, 1989 for the veteran's service- connected PTSD. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran filed a claim for service connection for PTSD in March 1989 and reported that he was unable to work due to this disability. This claim has continually been pursued by him up until the present time. 3. It is factually ascertainable that the veteran's PTSD has been manifested by symptomatology productive of virtual isolation from the community and an inability to obtain or maintain employment since June 23, 1989. CONCLUSION OF LAW The criteria for an effective date of June 23, 1989 for the assignment of a 100 percent rating for PTSD have been met. 38 U.S.C.A. § § 1155, 5107, 5110 (West 1991); 38 C.F.R. 3.400, 4.132, Part 4, Code 9411 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board has found the veteran's claim to be well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that he has presented a claim which is plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). The Board is also satisfied that all relevant facts have been properly developed with respect to this claim, and that no further assistance to the veteran is required in order to comply with VA's duty to assist him in the development of his claim as mandated by 38 U.S.C.A. § 5107(a) (West 1991). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule) 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1994). An increase in the disability rating assigned to a service- connected disability will be effective on the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year of such date; otherwise, it will be effective the date of receipt of claim. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400 (1994). In the present case, the RO has assigned an effective date of April 5, 1990, for the assignment of a 100 percent rating for PTSD. When PTSD produces mild social and industrial impairment, a 10 percent disability rating is assigned. Definite social and industrial impairment warrants, a 30 percent disability evaluation. When PTSD causes considerable social and industrial impairment, a 50 percent evaluation is assigned. When PTSD results in severe social and industrial impairment, a 70 percent evaluation is assigned. A 100 percent evaluation is assigned for PTSD when the following criteria are shown: the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; there are 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; and there is a demonstrable inability to obtain and retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1994). The evidence shows that in March 1989, the veteran sought service connection for PTSD. At that time, he reported that he had flashbacks and depression and that he could not hold a job due to this. This was also mentioned in an April 1989 statement by the veteran, in which he also stated that he had had countless jobs which he was not able to maintain. On June 23, 1989, the veteran was examined by VA. He reported that he was unemployed, and complained of depression, sleep difficulties, nightmares and appetite problems. It was noted that energy level and concentration were poor, there were no special interests and libido was described as none. The veteran reported that he did not like to be around people, and he stayed to himself. He reported that he startled easily and was hypervigilant. It was noted that he was not currently in psychiatric treatment, and that he did not have outpatient treatment. It was reported that he last worked in 1987 as a truck driver, which he had done for 20 years, and that he stopped because he was having trouble concentrating and it was becoming dangerous. He reported that he was in his fifth marriage. On examination, he was found to be well groomed and appropriately dressed. He was oriented in 3 spheres, and remembered 2 of 3 words after 5 minutes. His mood was depressed, but his affect was appropriate. He reported having auditory and visual hallucinations related to Vietnam, and he admitted to suicidal ideation. The examiner's assessment was as follows: Axis I. PTSD, alcoholism in remission, amphetamine abuse, in remission Axis II. Personality disorder, not otherwise specified. Axis III. Status-post shrapnel injury and history of chronic back pain. Axis IV. Severity of psychosocial stressors--extreme from wartime experiences. Axis V. Global assessment of functioning scale (GAF)- -50. Serious impairment in occupational functioning and social relations. In August 1989, the RO granted service connection for PTSD, and assigned a 10 percent rating, effective from March 1989. The veteran was hospitalized at a VA facility from April 5, 1990 to December 11, 1990. He complained of depression and flashbacks about Vietnam. He reported being unable to maintain employment. He reported that he isolated himself from people and preferred being alone. He asserted that he felt suicidal, had no hallucinations or delusions other than flashbacks, which he reported were the reason he had not worked in two years. Examination showed him to be depressed, and fully oriented. He was coherent and relevant. He was placed on medication, and at discharge, it was noted that he was unemployable. The RO granted a temporary total rating for the hospitalization, and maintained the 10 percent rating from January 1991. The veteran was again examined by VA in April 1991, and his wife was also interviewed at that time. He complained of depression, and his wife noted that he had nightmares. He reported having flashbacks daily, and that he never went out of his apartment. It was noted that he was withdrawn, and forgetful. He was noted to be oriented to time, place and person, and the examiner reported that the veteran was not able to be gainfully employed. The diagnoses were: Axis I. PTSD, chronic, severe. Axis II. none found. Axis III. none. Axis IV. severe. Combat stress in Vietnam. Axis V. Poor. The RO increased the veteran's evaluation for his PTSD to 70 percent in May 1991, effective from May 1989. The veteran and his wife testified at a hearing in August 1991, and it was noted that the veteran isolated himself at home, never left his home and had no visitors. It was reported that he had no friends and no hobbies. There were no family relationships. It was noted that he had sleep difficulties, visual and auditory hallucinations and suicidal thoughts. It was noted that he had had many jobs over the years and had been unemployed for the past few years. The hearing officer found that a 100 percent rating was warranted, and in a rating decision dated in July 1992, the RO granted a 100 percent rating effective from April 5, 1990. The veteran and his wife offered credible testimony before a Member of the Board in September 1993. The veteran reported that he last worked in 1988 as a truck driver. His wife testified that she had been married to the veteran since 1985, and that prior to his leaving his job in 1988, the veteran had flashbacks and run off the road while driving, and that he had confrontations with his employers. She reported that she cared for the veteran on a daily basis and that in 1989 he was having severe problems, and that he deteriorated prior to April 1990. She testified that based on her daily living experiences with the veteran, he became totally disabled in 1988, and that his behavior currently was the same as that in 1988. A comprehensive review of the evidence in this case shows that an examination report of the veteran in June 1989 supports a finding that he has been unemployable since that time. The report documents virtually the same complaints and findings which are noted on subsequent VA examinations and during the veteran's VA hospitalization in April 1990. The Board notes that he reported virtual isolation from all others except his wife and it was noted that he had been unemployed due to his PTSD symptoms for several years. He reported visual and auditory hallucinations, and the examiner found the severity of his stressors to be extreme, with a GAF of 50 and serious social and industrial impairment. While the June 1989 examination does not specifically state that the veteran was unemployable, neither did it report that he was able to work, and the April 1990 to December 1990 VA hospitalization report, which notes that the veteran is unemployable, and which was determined by the RO to represent the effective date for the assignment of the veteran's 100 percent disability rating, provides markedly similar findings as those documented in June 1989. The veteran has argued that the effective date of the award of total disability should be from 1989. The Board agrees to the extent that, as of the June 23, 1989 VA examination, the veteran established a continuing pattern of behavior and clinical treatment that ultimately resulted in the award of a total disability rating for PTSD. In view of the foregoing, the Board concludes that the earliest date at which it was factually ascertainable that the veteran experienced disability warranting a total disability rating was the date of that examination, June 23, 1989. See, 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400 (1994). ORDER An effective date of June 23, 1989, for the award of a 100 percent disability rating for PTSD is granted, subject to the regulations governing the award of monetary benefits. F. JUDGE FLOWERS Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.