BVA9502519 DOCKET NO. 89-07 232 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUE Entitlement to a rating in excess of 10 percent for post- traumatic stress disorder (PTSD) with substance abuse (drug and alcohol) during the period from February 1, 1986, through July 2, 1986. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD R. L. Shaw, Counsel INTRODUCTION The veteran had active military service from August 1958 to July 1961 and from October 1961 to July 1967. This matter is again before the Board of Veterans' Appeals (Board) following an order of the United States Court of Veterans Appeals (Court) on February 28, 1992 [citation redacted], which vacated a September 18, 1989, Board decision. The Board remanded the appeal on July 24, 1992, for additional evidentiary development and adjudication. The Board remanded the case a second time on June 21, 1994, to obtain a medical opinion relevant to the claim. Subsequent rating decisions by the RO on June 29, 1993, and August 10, 1994, resulted, respectively, in the assignment of a total schedular evaluation for PTSD from July 3, 1994, and the granting of service connection for substance abuse (drug and alcohol) as manifestations of PTSD. As a result of these determinations, the only issues remaining for adjudication are entitlement to a rating higher than 10 percent for the period from February 1 through July 2, 1986, and entitlement to an earlier effective date for a schedular 100 percent rating for PTSD. For reasons clarified herein, the matters have been consolidated as a single issue. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that, as a result of his service-connected PTSD with substance abuse, a total schedular evaluation was warranted during the period from February 1, 1986, through July 2, 1986. He maintains alternatively that since he has been unemployable since 1985 due to his service-connected disabilities, a total rating should be assigned for this period on the basis of individual unemployability. 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 preponderance of the evidence supports the assignment of a total schedular evaluation for the period from February 1, 1986, through July 2, 1986. FINDINGS OF FACT 1. The evidence required for appropriate adjudication of the issue on appeal has been obtained. 2. Service connection is in effect for PTSD with substance abuse (drug and alcohol), rated 100 percent disabling since July 3, 1986; for impairment of the left ulnar nerve, residual of a shrapnel wound, rated 20 percent disabling since October 1, 1967; tinnitus, rated 10 percent disabling since June 10, 1987; residual shrapnel wound scars of the head, back and shoulders, rated 10 percent disabling since June 10 1987; otitis media, rated noncompensable since October 1, 1967; and bilateral defective hearing, rated noncompensable since October 1, 1967. 3. During the period from February 1, 1986, through July 2, 1986, PTSD with substance abuse was manifested by anxiety, depression, confusion, nightmares and alcohol abuse of such degree as to require rehospitalization. 4. During the period from February 1, 1986, through July 2, 1986, PTSD with substance abuse was totally incapacitating and rendered the veteran demonstrably unable to obtain or retain employment. CONCLUSION OF LAW The criteria for a schedular 100 percent rating for PTSD with substance abuse (drug and alcohol) during the period from February 1, 1986, through July 2, 1986, were met. 38 U.S.C.A. §§ 1155, 5107(a), 7104 (West 1991); 38 C.F.R. §§ 3.102, 4.16, 4.132, Code 9411 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background The veteran was notified by letter in December 1980 that service connection was established for "anxiety and combat stress neurosis," rated 10 percent disabling from June 10, 1980; the actual rating sheet which awarded service connection is not of record. A request for an increased rating was received from the veteran in October 1985 following admission to a VA hospital on October 8, 1985. A history of PTSD and episodic alcohol dependence was noted, and the veteran was admitted because of depression and possible risk of suicide. During the hospitalization he was kept in the general psychiatric inpatient unit for one month for treatment of PTSD and was then transferred to the alcohol unit. He was discharged on January 10, 1986, with Axis I diagnoses of episodic alcohol dependence and PTSD. A VA psychiatric examination was performed in April 1986. The veteran stated that he got to the point where he could not function and could not hold a job; he said that he could do the work but that the pressure got to him. He refused to take medications. He claimed that he drank rarely but every time he did he got "caught." On the basis of the current examination, the diagnosis was generalized anxiety disorder and substance abuse, alcohol. The degree of impairment due to the psychiatric diagnosis was considered mild to moderate. By a decision of May 15, 1986, a rating board found that no increased severity of the psychiatric disorder was found and the claim for increase was denied. In June 1986, a temporary total rating under 38 C.F.R. § 4.29 was assigned for the period from October 8, 1985, through January 31, 1986. The veteran was admitted to a VA hospital on July 2, 1986. He complained that he had felt worse over a period of weeks and reported an overwhelming feeling of doom as well as confusion, depression and frustration. He was concerned that he had been unable to keep a job due to anxiety. During the hospitalization it was reported that he had been previously denied admission to an anxiety program because of findings on a personality profile which suggested in fact that he was too sick to be treated. It was concluded that his ability to maintain effective interpersonal relationships was very seriously impaired and that PTSD symptoms resulted in pronounced impairment to obtain or maintain employment. It was not possible to find someone willing to see the veteran on an individual basis. At the time of discharge from the hospital on September 3, 1986, the diagnoses on Axis I were PTSD, dysthymic disorder, and polysubstance abuse in remission. A temporary total rating under 38 C.F.R. § 4.29 was assigned in October 1986 for the period from July 3, 1986, through September 30, 1986, to be followed by a 50 percent schedular rating. A total (100 percent) schedular rating was assigned for PTSD from June 10, 1987, but was terminated by a rating decision of May 2, 1988, on the basis that its assignment had been clearly and unmistakably erroneous; this reduction was appealed by the veteran. In January 1989, the schedular rating was raised to 70 percent from August 1, 1988. After receipt of additional medical records pursuant to the Board remand of July 1992, a schedular total rating was assigned from July 3, 1986. II. Analysis The law provides that an award of increased disability compensation shall be effective from the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim for increase is received within one year from such date; otherwise, the award shall be effective from the date of receipt of the claim. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400(o)(2) (1993). At no time has the veteran requested that the total rating be made effective before October 8, 1985, the date of his hospital admission, which constituted an informal claim for increase. 38 C.F.R. §§ 3.155, 3.157 (1993). Since a temporary total rating under 38 C.F.R. § 4.29 was in effect from October 8, 1985, through January 30, 1986, the only period remaining in dispute extends from February 1, 1986, through July 2, 1986, after which date the schedular total rating went into effect. All adjudication with respect to the rating for PTSD has involved consideration of the impairment due to PTSD alone. Since substance abuse is now included within the PTSD award, all impairment of social and industrial adaptability resulting from either disorder is now countable for rating purposes. Review of the rating in light of the enlarged grant of service connection has not been expressly undertaken by the RO; however, in view of the action herein, no prejudice to the veteran results from this omission. Bernard v. Brown, 4 Vet.App. 384 (1993). The record contains ample evidence of a marked degree of impairment during the period from February through June 1986, as a result of the combined effects of PTSD and substance abuse, particularly involving alcohol. The period was preceded and followed by lengthy hospitalizations for PTSD and alcohol problems; during the latter of these admissions the degree of impairment was characterized as "pronounced." The Board finds that, as described in the report of the hospitalization from July to September 1986, the impairment characterized by VA physicians as pronounced approximates that described in the rating schedule, 38 C.F.R. Part 4, which requires, for a 100 percent rating for PTSD, "[t]otally incapacitating psychoneurotic, symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with 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." 38 C.F.R. § 4.132, Code 9411 (1993). An inability to obtain or maintain employment was specifically noted in the hospital report. While the degree of impairment reported at the April 1986 examination was stated to be only mild to moderate, the examiner made it clear that only the psychiatric manifestations were being considered rather than the combined effects of PTSD and substance abuse. The severity of the disability during the period at issue must be viewed in light of the veteran's status during the periods of hospitalization before and after. It is clear from the report of the admission that began on July 3, 1986, that the pronounced disability treated at that time was longstanding, and there is no evidence tending to show otherwise. The Board therefore finds that the criteria for a total schedular rating are met during the period from February 1 through July 2, 1986. Since no other period is in dispute, it is unnecessary to make additional findings as to whether an earlier effective date for the subsequent total schedular rating is warranted. In view of the veteran's inability to work, a total rating based on individual unemployability would also be assignable, irrespective of the schedular evaluation. 38 C.F.R. §§ 3.340, 3.341, 4.16 (1993). ORDER A total schedular evaluation for PTSD with substance abuse is granted for the period from February 1, 1986, through July 2, 1986, subject to the criteria governing the payment of monetary awards. STEPHEN L. WILKINS 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.