BVA9506143 DOCKET NO. 91-42 168 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Oakland, California 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 based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from November 1965 to May 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) January 1991 rating decision by the Regional Office (RO) in San Francisco, California. In November 1991 and August 1993, the Board remanded the veteran's case to the RO for additional development. The case has been returned to the Board and is ready for appellate review. In a November 1994 statement, the veteran questioned the effective date of his 30 percent increased rating for post- traumatic stress disorder (PTSD). This matter is referred to the RO for the appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected post-traumatic stress disorder (PTSD) warrants an increased rating over the currently assigned 30 percent. He also argues that he cannot maintain employment due to his service-connected disabilities, and that therefore, a total disability rating 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 files. 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 assignment of a 100 percent evaluation for post traumatic stress syndrome. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained. 2. The veteran' s service-connected PTSD is manifested by nightmares, difficulty sleeping, flashbacks, social isolation, anger, violent impulses, paranoid delusions, auditory hallucinations and irritability; he is not currently employable. CONCLUSION OF LAW The schedular criteria for a 100 percent rating for PTSD have been met. 38 U.S.C.A. § § 1155, 5107 (West 1991); 38 C.F.R. Part 4, 4.7, Code 9411 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran has the burden of submitting evidence sufficient to justify the belief by a fair and impartial individual that the claim is well grounded or capable of substantiation. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159(a) (1994). If the claim is well grounded, it must be shown that all relevant facts have been properly developed and that the duty to assist the veteran as mandated by 38 U.S.C.A. § 5107 (West 1991) has been complied with. The Board finds that the veteran's claim is well grounded, and that a fair determination may be made based on the evidence of record. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. If there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1994). In accordance with 38 C.F.R. 4.1, 4.2 (1994) and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of his service-connected PTSD, and has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. In Hood v. Brown, 4 Vet.App. 301, (1993), the Court of Veterans Appeals (Court) 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 and 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 the VA concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It 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 claim at issue. PTSD is rated in accordance with the provisions of Diagnostic Code 9411 of the Rating Schedule. As such, a 10 percent rating is warranted when there is emotional tension or other evidence of anxiety productive of mild social and industrial impairment. A 30 percent rating is assigned where there is definite impairment in the ability to establish or maintain effective and wholesome relationships with people; and where, by reason of the psychoneurotic symptoms, the initiative, flexibility, efficiency, and reliability levels are so reduced as to result in definite industrial impairment. A 50 percent rating is warranted when the ability to establish and maintain effective or favorable relationships with people is considerably impaired; and where, by reason of the psychoneurotic symptoms, the reliability, flexibility, and efficiency levels are so reduced as to result in considerable industrial impairment. A 70 percent rating is warranted for PTSD when the ability to maintain effective and favorable relationships with people is severely impaired. In such cases, the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent schedular rating is warranted when the attitudes of all contacts, except the most intimate, are so adversely affected as to result in virtual isolation in the community. There would be 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 a profound retreat from mature behavior. In such cases, the veteran would be demonstrably unable to obtain or retain employment. 38 C.F.R. Part 4, Code 9411 (1994). The record shows multiple treatment and hospitalizations for the veteran at private and VA facilities in the 1980's and 1990's. Various diagnoses were given. In 1988, he was diagnosed as having Bipolar Affective Disorder after being hospitalized for bizarre behavior; at that time a history of hospitalization in 1982 for that disorder was given. When he was examined by the VA in August 1988, it was noted that he last worked in 1987, and PTSD was diagnosed. In an October 1988 letter, it was reported that the veteran had undergone psychological testing, and it was found that he had symptoms consistent with PTSD. The record shows that the veteran was granted service connection for PTSD in June 1989, and a noncompensable evaluation was assigned. When the veteran was hospitalized in August 1989, paranoid schizophrenia was diagnosed, and he was found to be unable to return to any employment. There was subsequent treatment by the VA in 1990, and 1991 with diagnoses of bipolar disorder and paranoid schizophrenia. On hospitalization in August 1991, the veteran was treated after being picked up by the police for wandering, talking to himself and speaking loudly to passers-by. Schizoaffective disorder was diagnosed, and the veteran was noted to be unemployable. In January 1992, the veteran was examined by the VA, and it was found that he presented with symptoms of bipolar disorder; it was noted that his industrial capabilities remained compromised. In an August 1992 statement signed by nine residents of a mobile home park, including the veteran's mother and brother, it was noted that the signers had observed the veteran's abnormal erratic behavior and frightening language and behavior. It was opined that the veteran was a threat to himself, his family and the community, and the signers were of the opinion that the veteran should be permanently confined for treatment and care. In a September 1992 letter, Robert L. Voelker, M.D., reported that he had been treating the veteran for five years beginning in 1987 and that in his opinion, the veteran did not have bipolar disease. It was also opined that the veteran's PTSD prevented him from following a gainful occupation, and that he was 100% disabled. A report of an October 1992 VA hospitalization notes that the veteran had minimal social supports and had been homeless. By history, it was noted that he had had more than 40 psychiatric hospitalizations with a significant history of grave disability. He had been exhibiting bizarre behavior at admission. His condition at discharge was described as guarded. In November 1992, the veteran testified at a personal hearing concerning his experiences in Vietnam and his current complaints including that he had nightmares and family problems. He reported that he was taking medication and was currently unemployed. A complete transcript is of record. In December 1993, the veteran underwent a VA psychiatric examination for disability evaluation. The examiner reported reviewing the three volume claims file. The veteran reported that he was unable to have a successful marriage and that he had been hospitalized at least 12 times since his discharge in 1974. He stated that sleep was very minimal, and that he had recurring nightmares of Vietnam. He reported that he startled easily, and that some noises precipitated flashbacks. He stated that he had difficulty trusting and that he had rage attacks and violent impulses. He also reported auditory hallucinations and paranoid delusions. He reported that he was taking medication and that he no longer drank alcohol or used drugs, but that up until 1992 he was heavily involved with alcohol and drug abuse. He noted that he had been married twice, had not worked since 1987 and was homeless, staying with his mother off and on. He reported being arrested and jailed at least 5 times. On examination, his mood was found to be angry, his affect labile and irritable. He was slightly disheveled and he was cooperative. Speech was spontaneous but pressured and rapid. Insight was impaired and judgment fair. The pertinent diagnoses were: PTSD, schizoaffective disorder, in partial remission, polysubstance abuse, in partial remission. The psychological stressors were noted to be severe, and the Global Assessment Functioning (GAF) was 25. The examiner stated that the veteran's history and mental status examination were consistent with a diagnosis of PTSD and schizoaffective disorder. It was reported that the PTSD was related to Vietnam experiences. It was opined that the veteran's schizoaffective disorder symptoms were also related to Vietnam and were probably precipitated by his Vietnam experience. It was also reported that the veteran's level of function was low and that his GAF showed impairments in his ability to interact with others and his ability to work currently. While the record shows that the veteran has had various diagnoses for psychiatric disability, the Board is of the opinion that the veteran is not able to perform employment currently, and that he is socially isolated due to his service-connected PTSD. The Board notes that his diagnosed schizoaffective disorder has been found by a VA examiner to be related to his Vietnam experiences. His symptoms are pronounced and medical examiners have stated that he is unable to work at this time due to his psychiatric disorder. This finding is also supported by reports of frequent hospitalizations, VA outpatient treatment records, lay statements of family and neighbors, reports of frequent incarcerations, VA examination reports and by opinions of his examiners that he is unemployable. A VA examiner has related the veteran's schizoaffective disorder to his service-connected PTSD. There is demonstrable inability to obtain or retain employment, as required by Diagnostic Code 9411 of the Rating Schedule. The Board therefore finds that the record reasonably supports a finding that a 100 -percent rating is warranted for his service- connected PTSD. Since the Board has found that a total rating is warranted based on the veteran's psychiatric disorder alone, there is no need to consider the impact of his other service-connected disability on his unemployability. ORDER Entitlement to an increased evaluation for PTSD to 100 percent is allowed subject to the laws and regulations governing monetary awards. F. JUDGE FLOWERS 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.