BVA9507861 DOCKET NO. 93-14 953 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for post-traumatic stress disorder, currently evaluated as 30 percent disabling. 2. Entitlement to an increased evaluation for bilateral varicose veins, currently evaluated as 30 percent disabling. 3. Entitlement to a total disability evaluation for compensation of the basis of individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from August 1942 to October 1945 and from April 1949 to May 1957. This appeal arose from a February 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The RO granted entitlement to service connection for post-traumatic stress disorder which was assigned a 30 percent evaluation. The RO granted a temporary total evaluation based on hospital treatment for post-traumatic stress disorder effective from August 18, to September 30, 1992; and reinstated the prior 30 percent evaluation effective October 1, 1992, when it issued a rating decision in November 1992. The RO affirmed the determinations previously entered, continued the 30 percent evaluation for bilateral varicose veins, and denied entitlement to a total disability evaluation for compensation on the basis of individual unemployability when it entered a rating decision in March 1993. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his post-traumatic stress disorder and bilateral varicose veins are more disabling than currently evaluated, thereby warranting entitlement to increased evaluations. He argues that his service-connected disabilities have rendered him unable to work thereby warranting entitlement to a total disability rating for compensation 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 files. 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 preponderance of the evidence is against a grant of an increased evaluation for bilateral varicose veins, and that the record supports grants of an increased evaluation of 70 percent for post-traumatic stress disorder and a total disability evaluation for compensation on the basis of individual unemployability. FINDINGS OF FACT 1. Post-traumatic stress disorder is productive of not more than severe social and industrial impairment. 2. Bilateral varicose veins are productive of not more than moderately severe impairment. 3. The veteran's service-connected disabilities, when evaluated in association with his educational attainment and occupational experience, are sufficiently disabling as to preclude his obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an increased evaluation of 70 percent for post-traumatic stress disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.132, Diagnostic Code 9411 (1994). 2. The criteria for an evaluation in excess of 30 percent for bilateral varicose veins have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b)(1), 4.7, 4.40, 4.104, Diagnostic Code 7120 (1994). 3. The requirements for a total disability evaluation for compensation on the basis of individual unemployability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that he has presented claims which are plausible. The Board is satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1 and 4.2, 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 post-traumatic stress disorder, bilateral varicose veins, and dermatophytosis of the hands and feet. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is inadequate for rating purposes. I. Entitlement to an increased evaluation for post-traumatic stress disorder, currently evaluated as 30 percent disabling. A June 1986 VA psychiatric examination report shows the veteran stated that he was frightened during World War II combat but had never sought or received any psychiatric treatment. He reported having been treated with tranquilizers in the past. The appellant stated that he got aggravated easily. Others seemed to be having jobs and doing well, but he was unable to work. He had worked in the past as carpenter but could not now meet the physical demands of such work. A mental status examination concluded in a diagnosis of dysthymic disorder. The examiner noted that this condition caused the veteran considerable discomfort and interfered with his ability to cope. Coupled with his physical problems, the appellant was rendered unable to work. The appellant was hospitalized by VA in August 1988 for treatment of continuous alcohol dependence. An October 1990 VA mental health clinic report shows the veteran reported having engaged in heavy combat including hand to hand combat, and saw a friend blown apart. He reported having found the remains of two friends who had been cannibalized. The appellant had had four marriages. He complained of recurring nightmares, startle response, difficulty relating to others, and frequent anger outbursts. The diagnostic impression was post- traumatic stress disorder. At a December 1990 VA special psychiatric examination the veteran reported he had been widowed for 15 years and lived alone. He was unemployed and had been unable to work since the 1970's. He had problems reliving his combat during World War II and the Korean Conflict. The veteran stated that he awakened at night, shivering, from nightmares. His muscles tightened and his stomach shivered. He was jumpy all the time. The appellant stated that if someone approached him from behind he would jump up. The examiner noted that during the interview the veteran jumped up. When the telephone rang he again jumped up. The veteran reported he served in the Navy during World War II in the Pacific. He was involved in the combat near Okinawa. Suicide planes tried to destroy his ship. He saw a sailor get killed. One of the stewards he befriended blew his brains out from stress. The veteran stated that his eyes were burned from the gunfire bombardment. He left service at the end of the war. In 1947 he joined the Army. He served in Korea from 1950 to 1952. He served in the front lines and engaged in hand to hand combat. The veteran remembered the retreat from the Yalu river. All around him there was shooting, wounded and dead soldiers. He held on to a rope tied to tank. He stated he suffered from frozen feet and was snow blinded. Later he was sent to the Philippines and saw two of his friends cannibalized by the pygmies. He remembered becoming tearful and crying when he found their bones and feet. Subsequent to this experience he started having problems. He could not sleep at night and started having nightmares. His stomach became so tight that he could not go to the bathroom without using a laxative. He used to drink to calm his nerves. The appellant went absent without leave three times and was demoted to private. The appellant stated that he could not control himself and could not take orders. The veteran stated that he had become too jumpy. He usually kept to himself and did not like to be around other people. The claimant did not watch war movies because they reminded him of his experiences. On mental status examination the veteran was well oriented. Memory was good. The examiner noted that the appellant was moderately severe to severely impaired from a social and industrial point of view. On file are VA psychotherapy reports pertaining to the veteran's treatment during the early 1990's. The appellant was hospitalized by VA for treatment of post- traumatic stress disorder during August and September 1992. He was admitted because he had become increasingly depressed and bothered by nightmares. He had some problems drinking more because of his depression. It was felt that a trial of therapy for post-traumatic stress disorder problems would be helpful in alleviating some of his increasing nightmares, depression, and sense of loss and isolation. The pertinent discharge diagnosis was post-traumatic stress disorder. The veteran's post-traumatic stress disorder is rated as 30 percent disabled under diagnostic code 9411 of the VA Schedule for Rating Disabilities. The 30 percent evaluation contemplates definite impairment in the ability to establish or maintain effective and wholesome relationships with people. The psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. The next higher evaluation of 50 percent requires considerable social and industrial impairment. The next higher evaluation of 70 percent requires severe social and industrial impairment. In the case of Hood v. Brown, 4 Vet.App. 301 (1993), the United States Court of Veterans Appeals stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate "reasons an bases" for its decision. 38 U.S.C.A. § 7104(d)(1). In a precedent opinion, the General Counsel of VA concluded that "definite" is to be construed as representing a degree of social and industrial inadaptability that is "more than moderate but less than rather large." VA O.G.C. Prec. Op. 9-93, 59 Fed.Reg. 4753 (1994). The Board is bound by that interpretation of the term "definite." 38 U.S.C.A. § 7104(c). With these thoughts in mind, the Board will now consider whether a higher evaluation is warranted for the appellant's post-traumatic stress disorder. The Board observes that the appellant's post-traumatic stress disorder is productive of more than definite social and industrial impairment contemplated in the current 30 percent evaluation. However, the Board does not conclude that it is productive of only considerable social and industrial impairment contemplated in the 50 percent evaluation. The record shows that the veteran's overall psychiatric symptomatology more closely approximates the level of impairment contemplated in the next higher evaluation of 70 percent as for severe social and industrial inadaptability. 38 C.F.R. 4.7 (1994). The record shows that while the veteran's psychiatric impairment has been in existence for some time, it did not worsen until more recently. The appellant has required both inpatient and outpatient care. He has not worked for more than 20 years. He is in receipt of Social Security benefits on the basis of his deceased wife's lifetime income. The appellant has stated that he never worked on a sufficiently steady basis to draw Social Security benefits on his own lifetime earnings. The most recently dated psychiatric evidence on file shows that the appellant has lived by himself for many years and keeps to himself. He suffers from depression and recurrent memories of his participation in two major wars. A VA psychiatrist classified his social and industrial inadaptability as moderately severe to severe. The appellant's psychiatric symptomatology more closely approximates the level of severity contemplated in the 70 percent evaluation. The Board is of the opinion that the record supports a grant of an increased evaluation of 70 percent. While the Board has acknowledged that the claimant's post- traumatic stress disorder is more disabling than currently evaluated and should be rated as 70 percent disabling, the Board also finds that it has not resulted in total disablement under diagnostic code 9411. In this regard the Board observes that the attitudes of all contacts except the most intimate are not so adversely affected as to result in virtual isolation in the community. Or, there are no 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. Or, post-traumatic stress disorder has not been shown to demonstrably render the veteran unable to obtain or retain employment. Post-traumatic stress disorder has not rendered the veteran's disability picture unusual or exceptional in nature and has not markedly interfered with employment. It has not required frequent inpatient care as to render impractical the application of regular schedular standards thereby precluding a grant of an increased evaluation on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). The Board finds that the record supports a grant of an increased evaluation of 70 percent for post-traumatic stress disorder. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.132, Diagnostic Code 9411 (1994). II. Entitlement to an increased evaluation for bilateral varicose veins, currently evaluated as 30 percent disabling. The service medical records show that varicosities of the legs were reported when the veteran was hospitalized in June 1951. A May 1963 VA general medical examination report shows they were tortuous and full along the anterior aspect of both legs and up into the thighs. Elastic stockings were noted to be necessary. The examination diagnosis was moderate bilateral varicose veins. The RO granted entitlement to service connection for bilateral varicose veins which were assigned a 30 percent evaluation when it issued a rating decision in June 1963. The 30 percent evaluation was continued in subsequent rating decisions on the basis of later dated VA examinations. A June 1986 VA general medical examination report shows the veteran complained of swelling and burning pain in the lower extremities. There were no ulcerations. There was diffuse mild swelling in both lower legs. The pulses were good on the right and fair to good on the left. There were scattered superficial purple spider veins on the thighs, lower legs, and ankles, worse on the right. The feet were blue and the toes were red on dependency. On the right anterior thigh were scattered tortuous veins measuring 0.5 centimeters. These also extended over the knee. On the right lower leg from below the knee to the foot were scattered tortuous veins measuring 0.5 centimeters in diameter. On the left leg were no significant real saccular dilations, just purple spider veins. There was no evidence of deep venous thrombosis. The examination diagnosis was varicose veins, worse on right, below the knee with mild venous insufficiency. The veteran's bilateral varicose veins are rated as 30 percent disabling under diagnostic code 7120 of the VA Schedule for Rating Disabilities. The 30 percent evaluation contemplates moderately severe bilateral varicose veins involving superficial veins above and below the knee, with varicosities of the long saphenous, ranging in size from 1 to 2 centimeters in diameter, with symptoms of pain or cramping on exertion, with no involvement of the deep circulation. The next higher evaluation of 50 percent requires severe bilateral varicose veins involving superficial veins above and below the knee, with involvement of the long saphenous, ranging over 2 centimeters in diameter, marked distortion and sacculation, with edema and episodes of ulceration, and no involvement of the deep circulation. The Board's review of the most recently dated medical evidence of record pertaining to the appellant's bilateral varicose veins discloses that severe impairment as to warrant a grant of the next higher evaluation of 50 percent has not been shown. The veteran's bilateral varicose veins continue to be productive of not more than moderately severe impairment. No basis has been presented upon which to warrant a grant of an increased evaluation under the criteria of 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40. The Board finds that the record does not support a grant of an increased evaluation for bilateral varicose veins. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.104, Diagnostic Code 7120 (1994). III. Entitlement to a total disability evaluation for compensation on the basis of individual unemployability. Service connection has been granted for post-traumatic-stress disorder, evaluated as 70 percent disabling; bilateral varicose veins, evaluated as 30 percent disabling; and dermatophytosis of the hands and feet, evaluated as noncompensable. The combined schedular evaluation is 80 percent for compensation purposes. The historical record and current disablement due to post- traumatic stress disorder and bilateral varicose veins were discussed earlier. As to dermatophytosis of the hands and feet, the Board observes that during service in 1949 and early 1951 the veteran was reported to have a chronic fungus of his hands. In June 1951 the veteran was receiving inpatient care including treatment for recurrent dermatophytosis of the hands and feet. A May 1963 VA general medical examination disclosed no active lesions of dermatophytosis and there were very mild areas of desquamation. The examination diagnosis was dermatophytosis of both feet in remission. The RO granted entitlement to service connection for dermatophytosis of both hands and feet which was assigned a noncompensable evaluation when it issued a rating decision in June 1963. The noncompensable evaluation has remained in effect during post service years of the basis of VA dermatological examinations. A June 1986 VA examination of the skin disclosed the palms were clear. The soles of the feet were noted to be active. There were fungus and dyshidrosis. The veteran related that his rash was less active on the day of examination. Color photos accompanied the examination. The diagnosis was fungus and dyshidrosis of the feet. The veteran's dyshidrosis of the hands and feet is evaluated as noncompensable under diagnostic code 7813 of the VA Schedule for Rating Disabilities. The noncompensable evaluation contemplates slight, if any, exfoliation or itching, if on a nonexposed surface or small area. The next higher evaluation of 10 percent requires exfoliation, exudation or itching, if involving an exposed surface or extensive area. The most recently dated examination report on file, as is the case of previously dated examinations on file, have continued to show that the appellant's dermatological disorder remains confined to the feet. As a nonexposed area is involved, the Board finds no basis upon which to predicate a grant of an increased (compensable) evaluation. The Board finds no basis upon which to predicate a grant of an increased (compensable) evaluation under the criteria of 38 C.F.R. § 3.321(b)(1), 4.7, 4.40 (1994). The veteran has 3 years of grade school. He last worked in 1973. He has been employed as a carpenter and handyman. The Board is of the opinion that the appellant's service-connected disabilities, when evaluated in association with his educational attainment and occupational experience, have seriously limited his options for obtaining and retaining any kind of substantially gainful employment While the claimant's bilateral varicose veins and dyshidrosis of the hands and feet are contributing factors, the Board finds that his post-traumatic stress disorder in and of itself is the major contributing factor in his inability to reasonably function in an industrial environment. The Board is cognizant of the veteran's many nonservice-connected disorders which certainly are productive of significant impairment; nonetheless, the record clearly shows that the service-connected disabilities constitute sufficient incapacitation and have rendered the veteran unemployable for VA compensation purposes. It is the judgment of the Board that the record supports a grant of a total disability evaluation for compensation on the basis of individual unemployability. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (1994). ORDER Entitlement to an increased evaluation of 70 percent for post- traumatic stress disorder is granted, subject to pertinent criteria applicable to the payment of monetary awards. Entitlement to an increased evaluation for bilateral varicose veins is denied. Entitlement to a total disability evaluation for compensation on the basis of individual unemployability is granted, subject to pertinent criteria applicable to the payment of monetary awards. ALBERT D. TUTERA 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.