Citation Nr: 0002229 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 97-30 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 10 percent disabling. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: R. Edward Bates, Attorney ATTORNEY FOR THE BOARD Edward Walls, Associate Counsel INTRODUCTION The veteran served on active duty from January 1964 to January 1968. His appeal on the PTSD claim comes before the Board of Veterans' Appeals (Board) from a September 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. His appeal on the TDIU claim ensues from an April 1999 decision of the Chicago, Illinois RO. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's PTSD does not cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). 3. The veteran's service-connected disabilities include PTSD, evaluated as 10 percent disabling, and bilateral inguinal hernia, evaluated as noncompensable. His combined disability evaluation is 10 percent. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for PTD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (1999). 2. The veteran does not meet the criteria for entitlement to TDIU. 38 C.F.R. § 4.16 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that his symptomatology for PTSD warrants a 100 percent evaluation and that he should have a 100 evaluation for TDIU. He has also stated that the RO failed to fulfill its duty to assist him in developing his claim. The Board recognizes the veteran's contentions; however, the preliminary issue is whether he has submitted well-grounded claims, and if so, whether the VA has properly assisted him in the development of his claims. Considering the veteran's contentions, the Board finds his claims plausible and capable of substantiation and therefore well grounded within the meaning of 38 C.F.R. § 5107(a) (West 1991). See Caffrey v. Brown, 6 Vet.App. 337, 381 (1994); Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). Because the VA has afforded the veteran numerous psychiatric examinations, the Board is also satisfied that the RO has fulfilled its duty to assist pursuant to 38 U.S.C.A. § 5107(a). The RO has developed all relevant evidence necessary for an equitable disposition of this appeal, and the Board finds that no further assistance to the veteran is required. In accordance with 38 C.F.R. §§ 4.1, 4.2 (1999) and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's service-connected disabilities. The Board 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. The Board concludes that this case presents no evidentiary considerations, except as noted below, which warrant an exposition of the remote clinical history and findings pertaining to the disability at issue. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disabilities adversely affect his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Although regulations require that a disability be viewed in relation to its whole recorded history, see 38 C.F.R. §§ 4.1, 4.2, 4.41, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet.App. 55 (1994). Where there is a question as to which of two evaluations shall 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. I. PTSD The RO service connected the veteran's PTSD in September 1992 and he is currently evaluated at 10 percent under DC 9411. That code provides a 10 percent rating for PTSD causing occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or if symptoms are controlled by continuous medication. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, or recent events). See 38 C.F.R. § 4.130. The veteran reported during a July 1992 VA examination that he went on patrol every day during Vietnam and that he witnessed his best friend being shot to death. After the veteran returned home from Vietnam and separated from service, he joined the police for about four years. At that time he was apparently having homicidal and suicidal ideation, and he quit the police force. He reported that he had formerly used Cocaine, but had stopped because it made him feel like he was going to have a heart attack. He indicated that Heroine seemed to be the drug for him because it made him feel euphoric and "at one with others." However, he told the examiner that he pays his bills before he buys any drugs. The examiner diagnosed PTSD and substance abuse. During a psychiatric examination in August 1993, the veteran reported that he did not keep up with current events because they made him "feel down." He said he slept well when he was on his medication. He described himself as very irritable. He did not have crying spells, however, and his appetite and libido were unaffected. The examiner diagnosed PTSD by record. The veteran reported during a VA examination in September 1994 that he had nightmares about his experiences in Vietnam as a tunnel rat. He also stated that he was irritable and had difficulty concentrating. The examiner did not report the veteran's Global Assessment of Functioning (GAF) score at that time, but he did diagnose the veteran with PTSD. In January 1996, the veteran again underwent a VA psychiatric examination. The examiner said that the veteran had more than 30 years of alcohol and substance abuse and the veteran indicated that he had never been "clean" for more than a few days at a time. The veteran reported that he had been divorced for 15 years and he had one adult son who was alive, and one son who had been killed two years prior to the January 1996 examination. The veteran was calm, cooperative, and in no acute distress. He had no abnormal motor behavior. His affect was normal in range and intensity. His mood was euthymic and appropriate. He had no thought disorder, no delusions or hallucinations, no gross cognitive impairment, and his insight and judgment were good. The examiner diagnosed PTSD and substance abuse, cocaine and heroine, and assessed the veteran's GAF at 70. According to a March 1999 social worker's report, the veteran completed four years of college and achieved an associate degree in Applied Science in 1989 and an associate degree in Electronics in 1992. The veteran apparently became irate during the interview and the interview was terminated. The social worker did not offer a medical opinion on the veteran's mental status. Based on the above medical evidence, the Board finds that the veteran is not entitled to an evaluation in excess of 10 percent for PTSD. The veteran's latest GAF score was 70. According to the Diagnostic and Statistical Manual of Mental Disorders, 4th Ed. (DSM-IV), a GAF of between 61 and 70 indicates that the veteran suffers from some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Evidence associated with the claims file shows that the veteran does not suffer from chronic sleep impairment, memory loss, suspiciousness, or panic attacks. Rather, he achieved two associate degrees and was able to maintain employment during periods when his substance abuse was held in check. Thus, the Board finds the 10 percent evaluation more closely approximates his symptomatology for PTSD. II. TDIU The veteran contends that his service-connected disabilities entitle him to a total evaluation based on individual unemployability. A total disability rating based upon individual unemployability may be assigned upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but the veteran's age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A total disability rating may be assigned where the combined rating for the veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The veteran reported on his May 1997 Application for Increased Compensation Based on Unemployability that he had worked for the Chicago Transit Authority as a driver from 1969 to 1970, for the State Illinois University Police (Chicago State University) as a patrolman from 1970 to 1974, for Home Investment as a maintenance man from 1974 to 1979, and for Sears as a computer repairman until 1993. It is unclear how long the veteran was employed as a computer repairman, but he apparently no longer works at that job. As stated above, the veteran has two associate's degrees, one in Applied Science and one in Electronics. Because the veteran has a combined rating of 10 percent, he does not meet the percentage requirements of 38 C.F.R. § 4.16(a). Thus, his claim must be denied on a schedular basis. The Board has also considered whether the veteran is unemployable by reason of service-connected disabilities and whether his claim should have been submitted to the Director of Compensation and Pension Service by the RO for extraschedular consideration under 38 C.F.R. § 4.16(b). However, the total disability picture in the present case does not present such concerns, as the competent medical evidence of record does not reflect that his PTSD and bilateral inguinal hernia are preventing the veteran from obtaining substantial employment. The veteran has been able to perform at several jobs, and he has two associate degrees. He also has a long documented history of substance abuse which has not been linked clinically to either of his service-connected disabilities and which may be affecting his ability to maintain employment. More importantly, there is no medical evidence that his PTSD and hernia are preventing him from working; thus, his TDIU claim does not meet the extraschedular requirements of 38 C.F.R. § 4.16(b). ORDER An evaluation in excess of 10 percent for PTSD is denied. TDIU is denied. JOHN R. PAGANO Acting Member, Board of Veterans' Appeals