BVA9506372 DOCKET NO. 92-25 096 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for post-traumatic stress disorder, currently rated as 50 percent disabling. 2. Entitlement to an increased rating for residuals of frozen feet, currently rated as 30 percent disabling. 3. Entitlement to an increased rating for tinea pedis, currently rated as 10 percent disabling. 4. Entitlement to a total disability rating, for compensation purposes, based upon individual employability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD A. S. Nemeth, Associate Counsel INTRODUCTION The veteran's active service extended from August 1943 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in part, allowed an increased rating for post- traumatic stress disorder (PTSD) from 10 percent disabling to 30 percent disabling, continued a 10 percent rating for frozen feet that had been in effect since 1963 and continued a 10 percent rating for tinea pedis that had been in effect since 1986. This case was previously before the Board in June 1993 and was remanded to obtain treatment records, an Employment Information Statement, and to conduct a social and industrial survey, and psychiatric, dermatologic, and vascular examinations. A January 1994 rating decision by the RO granted a 50 percent rating for PTSD and a 30 percent rating for frozen feet, continued a 10 percent rating for tinea pedis, and denied entitlement to a total disability rating based on individual unemployability. The veteran's combined disability rating is 70 percent. The requested development has been completed. The Board now proceeds with its review of the appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO erred in not allowing higher ratings for his service-connected PTSD. He contends that the PTSD is greater than 50 percent disabling and is manifested by distressing dreams and flashbacks of his experiences during his internment as a Jewish prisoner of war (POW) in a German Stalag. He contends that the PTSD also causes him to avoid crowds, feel estranged from his family, have difficulties with sleep and with concentration, and experience auditory hallucinations. 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 an increased disability rating for PTSD. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's service-connected PTSD is manifested by auditory hallucinations, vivid flashbacks, irritability, exaggerated startle response, and an inability to relate to people individually and in crowds. 3. The veteran is not shown to be in virtual isolation in the community nor suffering from totally incapacitating psychoneurotic symptoms as a result of his PTSD. CONCLUSION OF LAW The criteria for a rating of 70 percent, and no higher, for PTSD has been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 9411 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim for an increased rating for PTSD is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. All relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Service-connected disabilities are rated in accordance with a schedule of ratings which are based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). The veteran was a POW of the German government from November 1944 to May 1945 and the Board is cognizant of the fact that he underwent extreme hardship and inhumane treatment during his captivity. Evidence of record reveals that the veteran received treatment on numerous occasions for depression and associated symptoms. In a letter to the VA dated November 1986, the veteran stated that among other things, he could not sleep due to anxiety, that he had anti-social feelings, and that he experienced nightmares and dreams about his POW experiences. An examination report dated April 1988 contains a diagnosis of PTSD, mild to moderate, with moderate occupational impairment. The veteran received a VA psychiatric examination in October 1991. He related his experiences in a German POW camp as being one in which he was "segregated and presumed to be consigned to eventual extermination." He stated that he first had nervous symptoms around 1947. He experienced increasing nightmares in the 1950's and instead of seeking help, he began to drink alcohol. The veteran stated that his nervous symptoms had worsened over the two to three years preceding this examination. He also complained of frequent distressing recollections of his POW experience as well as irritability. The examiner noted that the veteran seemed sad and that his affect was appropriate. Sensorium was clear and there was no gross sign of organic brain damage or psychosis. The diagnoses were: Axis I - PTSD; history of alcohol abuse; Axis II - no diagnosis; Axis III - status post cardiac surgery for heart valve replacement; gout; residuals of frozen feet; tinea pedis. The physician further noted that "psychiatric treatment is basically indicated and may eventually require more than medication....In view of the poor reality situation as well as the age, outlook for any early or significant improvement is not good." At a May 1992 RO hearing, the veteran stated that he had been having dreams of the POW camp experience around two to three times a week. He also testified that he was taking medication and was undergoing therapy on an outpatient basis. The veteran's wife testified that the veteran was irritable and paranoid, and reactive to noise such as with door slams or as appears in violent movies. She also stated that he did not have patience with his grandchildren when he saw them and constantly corrected them or yelled at them. The veteran concurred with his wife's testimony and both agreed that the veteran had problems in dealing with people and crowds. VA treatment notes dated December 1992 reveal that the veteran was experiencing wartime-related flashbacks, impaired sleep, and difficulty in dealing with crowds or situations outside the home. Medication was continued. Subsequent to the Board's June 1993 Remand, a social and industrial survey of the veteran was completed. The survey revealed that the veteran was receiving VA outpatient treatment for chronic depression. A treating psychiatrist stated that the veteran was anxious, tense, and "continues to have memories of his wartime experiences." The veteran worked for the U.S. Postal Service for 28 years before retiring in 1981. The survey states that the veteran retired following heart surgery. The veteran did work after his heart surgery, with his longest lasting job being a four year tenure in the mailroom of a Wall Street firm. He retired and moved to Florida in 1987. The assessment offered by the social worker who conducted the survey was of an anxious, friendly, noticeably nervous man, who due to his age, heart disease, and chronic depression is unemployable. The veteran was afforded a VA PTSD examination in November 1993. At the examination, the veteran restated that he was having nightmares and vivid flashbacks of his prison camp experiences, and that he was currently taking medication. He commented that he avoided crowds because they reminded him of his prison camp experience and that he felt estranged from his family. He complained of high irritability, difficulty in concentrating, hypervigilance, and suspiciousness. The veteran also described having auditory hallucinations of fellow prisoners screaming in pain, but denied having visual hallucinations. The examiner noted that the veteran had an exaggerated startle response and that the veteran was oriented to time, place, and circumstance. The veteran was found capable of managing his own affairs and was diagnosed to have PTSD. VA treatment notes dated December 1993 reveal that the veteran was still experiencing flashbacks related to his wartime POW experience and that his sleep was fitful and erratic. In his VA Form 1-9, received by the RO in January 1994, the veteran described hearing screaming in the middle of the night, the feeling at night that someone was walking around outside his home, and that he was taking more medication. A 50 percent rating may be granted for PTSD, under 38 C.F.R. Part 4, Code 9411 (1994), where the "ability to establish or maintain effective or favorable relationships with people is considerably impaired. By reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment." A 70 percent disability rating may be granted where the "ability to establish or maintain effective or favorable relationships with people is severely impaired. 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 rating may be granted where "the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. 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. Demonstrably unable to obtain or retain employment." Evidence of record shows that the veteran's ability to relate to people is severely impaired due to such manifestations as nervousness, irritability, paranoia, lack of patience, suspiciousness, and hypervigilance. These manifestations have severely impaired his relationships with his family, causing the veteran to feel estranged from them, especially his grandchildren. The veteran has an exaggerated startle response that causes him to involuntarily react upon hearing a loud noise, such as a door slam or a sound effect in a movie or television program. He has problems sleeping and takes medication to help alleviate the manifestations of his PTSD. He also experiences auditory hallucinations of his former fellow prisoners of war screaming in pain. These manifestations, combined with his inability to concentrate, severely impact upon the veteran's ability to maintain favorable relationships with people as well as his ability to obtain or retain employment. Where there is a question as to which of two evaluations will 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). The veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 U.S.C.A. § 5107 (West 1991). The law further dictates that when the evidence in relative equipoise, the veteran prevails. In this case the evidence demonstrates that the symptoms, associated with the veteran's PTSD more closely approximate the criteria required for a 70 percent rating. A schedular rating higher than 70 percent is not warranted because there is no evidence showing that the veteran is isolated in the community or suffering from totally incapacitating psychoneurotic symptoms which is the criteria contemplated for a 100 percent schedular rating. ORDER A rating of 70 percent, and not in excess thereof, is granted for the service-connected PTSD, subject to the applicable law and regulations governing the payment of monetary awards. REMAND Since a higher rating has been granted for the veteran's PTSD, the case must be REMANDED to the RO to adjudicate the issue of entitlement to a total disability rating, for compensation purposes, based on individual unemployability, under 38 C.F.R. § 4.16 (1994). If the decision is unfavorable, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, the case, in accordance with the current appellate procedures, should be returned to the Board for completion of appellate review. The purpose of the REMAND is to comply with due process requirements. No further action on the part of the veteran is required until further notice. The issues of entitlement to an increased rating for frozen feet and tinea pedis will be held in abeyance until the REMAND action is completed. JOAQUIN AGUAYO-PERELES 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).