BVA9501083 DOCKET NO. 92-20 636 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a disability rating in excess of 50 percent for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Margaret L. Peak, Associate Counsel INTRODUCTION The veteran had active service from June 1970 to January 1973. This claim was originally before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In October 1994, the case was remanded to ascertain whether the veteran wished to have a personal hearing before this Board. After the veteran indicated that he did not, the claim was returned to the Board and docketed in December 1994. The claim is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran disagrees with the decision of the RO that increased his disability rating for PTSD from 30 percent to 50 percent. It is his contention that the symptoms he experiences render a 50 percent disability rating inaccurate, and that he is unemployable by reason of this disorder. 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 a 100 percent disability rating for PTSD is warranted, and that the veteran is unemployable by reason of this disorder. FINDING OF FACT PTSD is presently productive of severe social and industrial impairment that precludes the veteran from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a 100 percent schedular rating for PTSD have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.16 (c), 4.130, Part 4, Code 9411 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran is seeking a disability rating in excess of 50 percent for PTSD. As an initial matter, the Board finds his claim to be "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is to say, he has presented a claim that is not implausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the VA's duty to assist him mandated by 38 U.S.C.A. § 5107(a) (West 1991). Further, the evidence will support the assignment of an increased rating. The veteran's original claim was received in March 1990. In an April 1991 decision, service connection for PTSD was granted from the date of the claim. The disorder was rated as 30 percent disabling, and the veteran appealed. In November 1991, following a personal hearing, the rating was increased to 50 percent from the date of his claim. The veteran continued his appeal, seeking a 100 percent rating. Disability ratings are determined by applying criteria found in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4 (1993). The Board attempts to ascertain the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1993). Diagnostic Code 9411 governs the assignment of ratings for PTSD. Under that code, the veteran's present 50 percent rating is warranted where the ability to establish or maintain effective or favorable relationships with people is considerably impaired, and psychoneurotic symptoms reduce reliability, flexibility and efficiency levels such that there is considerable industrial impairment. Where the impairment, both social and industrial, is severe, a 70 percent rating is assigned. For a 100 percent evaluation to be applicable, all attitudes of all contacts except the most intimate must be so adversely affected as to result in virtual isolation in the community. Totally incapacitating psychoneurotic symptoms must be present, 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 which result in profound retreat from mature behavior. Further, the veteran must be demonstrably unable to obtain or retain employment. The record shows that the veteran initiated a disability claim with the Social Security Administration (SSA) in January 1992. The veteran was given a psychiatric examination in March 1992, in connection with that claim, and the report is of record. At that time, he claimed that his biggest problem was getting and maintaining employment. He stated that he had held over 100 jobs since returning from service in Vietnam in 1973, and that he had problems working with the public, controlling his anger, and avoiding unpleasant recollections from service. He stated that his social activity was decreased, that he did not visit outside of his home, and claimed to have no friends. He claimed difficulty falling asleep, recurring temper outbursts, poor concentration, and hyper-vigilance. He claimed to have been hospitalized three times in the state hospital, and once in a VA hospital for PTSD. His current medications included Doxepin, Ventolin, Piroxicam, Prednisone, Lorazepam, Methotrexate, Hydroxyzine, and gold injections for his arthritis. On mental status examination, his psychomotor activity was agitated, his mood was one of mild to moderate depression, his affect was labile, and there were vegetative signs of depression. He claimed to have experienced occasional auditory hallucinations and thought broadcasting, however, there was no evidence of delusional thinking or phobias. He discussed his Vietnam experiences with pressured speech, and cried frequently. He reported being uncomfortable with thunder and lightning because it reminded him of bomb flashes. He stated that he limited his social activity by staying in his back yard, which was fenced and had a lock. He was oriented in all spheres, his memory, concentration, intellect and judgment were intact. His insight was inhibited. He had minimal interaction with his family, denied having any friends and stated that he avoided people in authority. He stated that he became particularly hostile around crowds, and had difficulty taking tests and concentrating. The examiner noted that deterioration or decompensation in work or work-like settings had slowed down in the past year, but that it apparently still went on in the work setting. The diagnoses were; PTSD and major depressive disorder on axis I; personality disorder NOS with anti-social traits on axis II; and rheumatoid arthritis on axis III. His prognosis with treatment was listed as poor. Nothing in that report, which is the most recent of record, is incompatible with the remainder of the veteran's record, and based on that, the veteran appears to suffer from severe social and industrial impairment. Reference to DC 9411, cited earlier, shows that a 70 percent disability rating is therefore in order. Where, as here, the only compensable service-connected disability is a mental disorder assigned a 70 percent rating, it becomes necessary to determine whether that mental disorder precludes the veteran from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16(c). The clear intention of the preceding regulation is to recognize that one may be effectively unemployable without suffering the symptomatology required for a 100 percent rating under DC 9411. It is equally clear, that in that instance, unemployability must arise solely as a consequence of the service connected mental disorder. Here the Board finds that it does. While the VA is not bound by the regulations of another agency, SSA findings are pertinent to determinations involving questions of employability. That agency found the veteran to be disabled for purposes of employment as of January 19, 1992. The primary diagnosis given was PTSD, with a secondary diagnosis of rheumatoid arthritis of the feet. Form SSA-831-U5 (June 1992). Review of the remainder of the record upon which this decision was reached does not indicate that the secondary diagnosis played any significant part in the final determination. In making its own independent judgment, the Board concludes that the veteran's occupational history has been marginal at best and that the prospects for future employment are poor. Pursuant to the provisions of 38 C.F.R. § 4.16(c), it is the judgement of the Board that a 100 percent schedular evaluation is appropriate. ORDER A 100 percent disability rating for PTSD is granted, subject to regulations governing monetary awards. ROBERT E. SULLIVAN 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 (CONTINUED ON NEXT PAGE) 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.