BVA9503043 DOCKET NO. 92-07 169 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased rating for hysterical neurosis and post-traumatic stress disorder, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran had active service from October 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana (RO). CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran's service-connected psychiatric disability is more disabling than currently evaluated. It is asserted, in substance, that the veteran is unable to obtain or retain employment because of symptomatology associated with his post-traumatic stress disorder. Therefore, a 100 percent evaluation should be assigned. 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 record supports the assignment of a 100 percent evaluation for the veteran's service-connected psychiatric disorder. 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's service-connected psychiatric disorder is manifested by flashbacks, nightmares, startle reaction, difficulty concentrating, difficulty falling asleep, avoidance of activities which cause him to remember combat, and a desire to be alone. His reliability, flexibility and efficiency are impaired to an extent that he is demonstrably unable to obtain or retain employment. CONCLUSION OF LAW A 100 percent evaluation for hysterical neurosis and post- traumatic stress disorder is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.7, Part 4, Codes 9401, 9411 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107. Following the Board's remand, post-traumatic stress disorder has been diagnosed and rated along with hysterical neurosis as part of the veteran's service-connected psychiatric disorder. The veteran's representative has indicated a belief that the psychiatric disability should be identified only as post-traumatic stress disorder, but has requested that the appeal not be remanded for clarification of the veteran's psychiatric disorder. Hysterical neurosis and post-traumatic stress disorder are both rated under psychoneurotic disorders in 38 C.F.R. Part 4. Therefore, it will not be prejudicial to the veteran to consider any symptomatology associated with either of these disabilities in arriving at the evaluation to be assigned. We are satisfied that all relevant facts have been properly developed and that no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Service medical records reflect that in October 1967 the veteran was hospitalized with a diagnosis of passive-aggressive personality. He remained hospitalized until mid-November 1967, at which time he was discharged with a diagnosis of combat neurosis. It was indicated that he had recovered from that neurosis and was fit for full duty. The veteran's occupational specialty was rifleman and he was awarded the Vietnam Campaign Medal with device, Vietnam Service Medal with one star, and a Purple Heart. A July 1975 rating decision granted service connection for multiple shell fragment wounds of the left anterior leg, Muscle Group XII, evaluated as 10 percent disabling; shell fragment wounds of the right arm, Muscle Group VIII, evaluated as 10 percent disabling; and shell fragment wounds of the right posterior shoulder, Muscle Group IV; shell fragment wound of the right buttocks, Muscle Group XVII; and callosities of both feet, all evaluated as noncompensably disabling. The report of an April 1976 VA psychiatric examination states that the veteran reported a very limited social life and indicated that he stayed around the house most of the time. Occasionally, he would go to a club where he would observe others, because he did not dance himself. On mental status examination he was alert, oriented, and cooperative. He demonstrated conspicuous tension and motor activity. His mood was covertly angry and affect was flat, but not otherwise grossly inappropriate. He did express mildly autistic content and described phobic reactions and recurrent episodes of amnesia. His comprehension and judgment were adequate, but he demonstrated limited insight. He was estimated to be of average intelligence and his intellectual functions were grossly intact. The diagnoses were hysterical neurosis, dissociative type, with phobic features, chronic, moderately severe, manifested by recurrent fugue states, phobias, startle reactions, sleep disturbance, restlessness, tension, hostile mood, and mild autism and social withdrawal. It was indicated that the degree of industrial impairment appeared to be moderately severe at that time. The degree of social impairment appeared moderate. The prognosis was guarded since findings were suggestive of possible future psychotic decompensation. A June 1976 rating decision granted service connection for hysterical neurosis, assigning a noncompensable evaluation from February 18, 1975, and a 30 percent evaluation from April 21, 1976. With the exception of a temporary total evaluation, assigned for a period of hospitalization in 1977, the 30 percent evaluation has remained in effect until the present time. The report of a May 1991 VA psychiatric examination states that the veteran reported feeling depressed and anxious. He indicated that he had been on Thorazine at one time, but took no psychiatric medications at the time of the examination. The veteran did not remember how long he was in Vietnam but did remember that he was wounded there. Because of the veteran's problems with memory, he had a difficult time explaining himself. He exhibited anxiety and depression. He reported that he would lose his temper quickly. Auditory and visual hallucinations were questionable and the veteran's remote memory was slightly impaired. Recent memory seemed to be intact. Psychological testing was requested. The diagnoses were dissociative disorder by history, and dysthymia. The reports of January and May 1993 VA psychiatric examinations, by the same examiner, reflect that the claims folder was available and reviewed. The veteran indicated that he had not been employed since the early 1980's. He stated that he was unable to work because of stress, nightmares, and feeling like he was in Vietnam. He reported being sensitive to noise and preferring to be alone. He indicated that he would have blackouts where his mind would wander and his bowel and bladder would be incontinent. On mental status examination his thoughts were organized, but he did relate that he saw visions. He was oriented in all three spheres and his general fund of knowledge was adequate. His situational judgment was appropriate, but his insight was poor. The impression was post-traumatic stress disorder and schizoid personality traits. It was indicated that the veteran's post-traumatic stress disorder was rather mild to moderate in severity. The reports of July and August 1993 VA psychological evaluations, by different examiners, indicate that the veteran had difficulty recalling details of his experiences in Vietnam. The veteran indicated that he had a job working for a hospital for a couple of years as a driver and on one occasion had to pick up body parts and had a flashback. Psychological testing indicated a diagnosis of post-traumatic stress disorder. The veteran reported flashbacks, being upset when he saw war movies, bad dreams and nightmares, getting mad easily, being bothered by loud noises, having a startle reaction, difficulty concentrating, fear of sleep because of nightmares, and a poor memory. Objective findings indicated that the veteran was experiencing depression, anxiety, and related post-traumatic stress disorder symptomatology. His memory was poor and he had difficulty concentrating. He appeared to have a minor anger control problem and he was easily irritated and upset. However, he was believed to be capable of establishing meaningful relationships. He appeared to have a positive relationship with his wife and children and was noted to have maintained gainful employment following his discharge from the military. Hospitalizations following discharge were also noted which brought into question the stability of his emotional adjustment. It was indicated that his main difficulty was his post-traumatic stress disorder and difficulty with memory impairment. It was indicated that he would have a great deal of difficulty following instructions in a structured work environment. Post-traumatic stress disorder was diagnosed and characterized as either moderate or severe. In reaching its decision, the Board has considered the complete history of the disability in question as well as the current clinical manifestations and the effect the disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, (1993). In order for the veteran to be awarded a 100% schedular evaluation under 38 C.F.R. § Part 4, Code 9411, he must be totally isolated in the community, or exhibit totally incapacitating psychoneurotic behavior equating to a profound retreat from mature behavior, or be demonstrably unable to obtain or retain employment. He only need meet one of these criteria. Johnson v. Brown, 93-98 (U.S. Vet.App. Sept. 28, 1994). The veteran does have some type of memory impairment. Therefore, psychological testing was requested to aid in completing the veteran's psychiatric history. One of the psychological examiners has indicated that the veteran's main difficulties are his post-traumatic stress disorder symptomatology and difficulty in recalling. The other has indicated that the veteran would have a great deal of difficulty carrying out any kind of instructions in a structured work environment. It is indicated that he has a great deal of trouble coping with ordinary day-to- day activities. The record does not indicate that the veteran is virtually isolated in his community. While he does prefer to be alone, he does apparently have good relationships with his wife and children and statements from two individuals have been submitted which reflect that they are acquaintances of the veteran and have observed him in recent time periods. The veteran continues to be oriented in all spheres and has not exhibited symptoms bordering on gross repudiation of reality. However, with respect to whether or not the veteran is demonstrably unable to obtain or retain employment, the record reflects that he is not currently employed and has not been employed for some time. Symptomatology associated with post- traumatic stress disorder has been identified as the veteran's main problem. It has been indicated that, because of the veteran's problem, he has great difficulty coping day to day and would have great difficulty in a structured work environment. Even though it is noted that the veteran was employed after his initial discharge, it is also observed that he changed employment several times even then. Although the severity of the veteran's post-traumatic stress disorder has been variously characterized by different examiners, there is an equal balance in the evidence concerning whether the manifestations of the veteran's service- connected psychiatric disability have so affected his reliability, flexibility, and efficiency as to cause him to be "demonstrably" unable to obtain or retain employment. In resolving doubt in the veteran's behalf, a 100 percent evaluation on a schedular basis may be assigned. 38 U.S.C.A. § 5107. It should also be emphasized that it is felt by the reviewing Board member that a lesser grant of benefits would not withstand Court scrutiny. ORDER An increased rating is granted, to the extent indicated, subject to the laws and regulations governing the payment of monetary benefits. JEFF MARTIN 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. (CONTINUED ON NEXT PAGE) 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.