BVA9508292 DOCKET NO. 92-12 461 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for peptic ulcer disease. 2. Entitlement to service connection for hiatal hernia. 3. Entitlement to an increased evaluation for post-traumatic stress disorder with anxiety and depression, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Robert P. Regan, Counsel INTRODUCTION The appellant served on active duty from March 1942 to January 1946. He was a prisoner of war of the German government from November 1944 to February 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal of an April 1990 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Petersburg, Florida. Based upon a review of the testimony of the appellant during his hearing at the RO in October 1991 and other statements submitted on his behalf, it is the Board's opinion that the issue of entitlement to a 100 percent schedular evaluation pursuant to the provisions of 38 C.F.R. § 4.16(c) (1990) is included in his claim for an increased evaluation for his service-connected psychiatric disorder. This issue is deemed to be properly before the Board for appellant consideration at this time. The issues of entitlement to service connection for peptic ulcer disease and a hiatal hernia will be discussed in the remand portion of this decision. CONTENTIONS OF APPELLATE ON APPEAL The appellant maintains that the RO erred in not granting the benefits sought on appeal. He maintains that his service- connected psychiatric disorder is getting progressively worse and is severely disabling. He reports that he is unable to get along with people and has lost numerous friends over the years. He maintains that he is socially isolated and must read constantly and sleep during the day so that he not come in contact with people. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material in the appellant's claims folder and for the following reasons and bases, it is the decision of the Board that the evidence supports the appellant's claim for an increased evaluation to 70 percent for post-traumatic stress disorder (PTSD) with anxiety and depression and supports the assignment of a total rating based on individual unemployability in accordance with the provisions of 38 C.F.R. § 4.16(c) (1994). FINDINGS OF FACT 1. The appellant's only compensable service-connected disability, PTSD with anxiety and depression, is productive of severe impairment of social and industrial adaptability. 2. His PTSD with anxiety and depression prevents him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The schedular criteria for a 70 percent evaluation for PTSD with anxiety and depression have been met. 38 U.S.C.A. §§ 1155, 5107, (West 1991); 38 C.F.R. § Part 4, Diagnostic Code 9411 (1994). 2. The criteria for entitlement to 100 percent schedular evaluation based on individual unemployability due to PTSD with anxiety and depression have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991). 38 C.F.R. § 4.16(c) Diagnostic Code 9411 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board has found that the appellant's claim for an increased evaluation for PTSD with anxiety and depression is well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991) in that this claim is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). This finding is based in part on the appellant's assertion that his psychiatric disorder has increased in severity. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). Once it has been determined that a claim is well grounded, VA has the statutory duty to assist the appellant in the development of evidence pertinent to that claim. 38 U.S.C.A. § 5107. In this regard, in May 1993, the Board remanded the case to the RO for additional development of the evidence, to include a VA psychiatric evaluation. The psychiatric evaluation has been completed. The Board is satisfied that the statutory duty to assist the appellant in the development of evidence pertinent to his claim has been met. The RO has assigned a 50 percent evaluation for PTSD in accordance with the criteria set forth in the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1994). Diagnostic Code 9411 thereof provides for the evaluation of PTSD. When the ability to establish or maintain effective or favorable relationships with people is considerably impaired and by reason of psychoneurotic symptoms, the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment, a rating of 50 percent is provided. When the ability to establish or maintain effective or favorable relationships with people is severely impaired and the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment, a rating of 70 percent is provided. When the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community, with totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with most daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior and demonstrable inablity to obtain or retain employment, a rating of 100 percent is warranted. A review of the service medical records reflects that the appellant was seen at the dispensary in June 1945 complaining of nervousness ever since he was a prisoner of war. The separation examination showed no pertinent pathology. A VA psychiatric examination was conducted in December 1946. At that time the diagnosis was psychoneurosis, treated (hypochondriasis and anxiety). In a December 1946 rating action the RO granted entitlement to service connection for psychoneurosis, hypochondriasis, with headaches and insomnia and assigned a 10 percent evaluation. A VA psychiatric evaluation was conducted in April 1978. At that time the diagnosis was anxiety neurosis, chronic, moderately severe with depressive features, manifested by tension, headaches, pressure of speech, insomnia, depressive feelings, nightmares and withdrawal. In a May 1978 rating determination, the RO increased the 10 percent evaluation in effect for anxiety neurosis, chronic, moderately severe with depressive features, to 30 percent. A VA psychiatric evaluation was conducted in August 1982. The occupational history reflected that, following appellant's discharge from active duty, he worked for the U.S. Government for three years and then from 1953 until 1974 he owned a venetian blind business. When he sold the business in 1974, he indicated he went to work for a bank for two years as a guard. He then moved to South Florida where he obtained a job as a county motor vehicle inspector for three years. In 1979 he began working for the U.S. Postal Service as a letter carrier, where he was still employed. In August 1982, the appellant reported that he thought of many of his friends who had died in the war and felt guilty that he returned home. He stated that he was unable to mix with people and did not socialize with his neighbors. He had a few old friends who have also moved into the area and these are the only people with whom he socialized. He felt hostility towards his neighbors. He admitted to severe depression. He indicated that he was married in 1942 and had two daughters. He admitted to death wishes, but denied suicidal ideation or attempts. Productions were profuse, adequate, coherent and relevant. The diagnosis was PTSD with anxiety and depression. In a September 1982 rating action the RO increased the 30 percent evaluation to 50 percent for PTSD with anxiety and depression, and that rating has been in effect ever since. Of record are VA outpatient treatment records showing intermittent treatment for several problems, including psychiatric complaints from 1989 to 1991. A statement from a VA physician, dated in July 1991, is to the effect that the appellant was seen bimonthly at a VA outpatient clinic for the past 10 years for PTSD with depression. The appellant was unable to concentrate, remains tense and anxious and was constantly argumentative. The appellant suffered with nightmares. He socialized poorly and had very few friends, lost because of withdrawal. He used avoidant behavior, and was upset by foreign languages. The diagnosis was chronic PTSD. A VA psychiatric evaluation was conducted in November 1991, at which time the examiner reported that the appellant's sensorium was well preserved and his cognitive functions were not disturbed. His judgment was fair and his problems related to his inability to tolerate stresses were described as quite obvious. The appellant admitted to the fact that he had to give up his business after over 20 years because he was too argumentative and irritable with his customers and personnel. He claimed that because of his "arrogant attitude" he had lost different jobs which he had when he moved in 1976 to Florida. His last job was in the Post Office where he was a letter carrier for four years. He then gave that job up also. There was no evidence of a psychosis. The appellant's irritability was evident during the interview. The evidence of his behavioral problems apparently was expressed in his statement that his being argumentative at home or with the people in his environment deprived him of friends. The examiner commented that the appellant was an unhappy individual who was still suffering from recollections of war experiences in a stressful life as a former prisoner of war. Nightmares and flashbacks seemed to make him a bitter individual. The diagnosis was anxiety disorder with depressive features and persistent symptoms of PTSD. A VA psychiatric evaluation was conducted in June 1993. The occupational history indicated that the appellant had experience with a governmental unit disposing of surplus property after his release from active duty. He went into the venetian blind business and sold that business after 21 years because he couldn't put up with the customers and with his employees. He was irritated and aggravated and he argued with customers and his employees. He reported working with a motor vehicle inspection bureau for three years, beginning in 1976, and then worked as a letter carrier with the United States Postal Service where he worked alone, sorting and delivering mail. He had very few friends. In June 1993, he described living in a condominium with his wife and had no friends with whom he socialized. His wife had friends and when they came to his home he read the newspaper. He stated that if he was at the pool, he feigned sleep so that nobody spoke to him. He did not attend the condominium meetings (except about once a year) or the social affairs. He said he belonged to the Disabled American Veterans, but had never been to a meeting. He stated that he believed his problem was that he lived "in a POW past." He stated that he wanted to be alone. He slept well if he took his sleeping medications, but awoke 2 to 3 times a night and then fell asleep again. He reported nightmares several times a month. He indicated that if he read or watched a war movie or TV news depictions, he cried and had nightmares that night or the next. The nightmares were about the prison camp and fear of being on the road as an escapee. He experienced flashbacks when he saw pictures of cattle cars in which the POW's were transported. The appellant denied auditory or visual hallucinations. He denied delusions and referential ideation. He admitted suicidal ideation and had made plans which are, "I will jump in front of a moving train." He had made no attempts. He was oriented in time, place and person. His productions are adequate, coherent, and relevant. During the interview he displayed some anxiety. He cried as he described POW experiences and some present incidents. He was easily angered and argumentative. The examiner commented that the appellant's experiences as a POW in World War II and his reaction to them, resulting in nightmares, flashbacks, poor socialization, poor employability, except on his own terms, anger, poor frustration control and argumentativeness, anxiety and depression, merited a diagnosis of PTSD; anxiety, moderately severe; and depression, severe. During his hearing at the RO in October 1991 the veteran testified as to the severity of his psychiatric symptoms. It was indicated that he was unable to work. He reported severe nightmares, being argumentative, and being socially isolated. Testimony was also received from the appellant's spouse. This testimony is deemed to be competent evidence with regards to the symptoms of the appellant's service-connected psychiatric illness. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). To summarize, the record reflects that the appellant has not been substantially gainfully employed for some time and his psychiatric problems are manifested primarily by nightmares, flashbacks, anger, poor frustration control, argumentativeness, anxiety and depression. The appellant admitted recently to suicidal ideation, and the VA examiner described the appellant as having poor socialization and employability, except on his own terms. The examiner also classified the appellant's depression as currently severe in nature. In view of these recent findings, it is the Board's judgment that his PTSD with anxiety and depression is productive of severe social and industrial impairment. Thus, a 70 percent rating is warranted under the applicable rating criteria. However, medical evidence does not show that the appellant's psychoneurotic symptoms border on a gross repudiation of reality. He remains oriented in time, place and person. There was no indication that he has disturbed thought or behavioral processes associated with almost daily activities such as fantasy, confusion or panic or explosions of aggressive energy which results in a profound retreat from mature behavior. Thus, a 100 percent schedular evaluation under Diagnostic Code 9411 is not warranted. The appellant's service-connected disabilities are PTSD, evaluated as 70 percent disabling, and residuals of a shell fragment wound to the chin and residuals of an appendectomy, each evaluated as zero percent disabling. 38 C.F.R. § 4.16(c) provides that, when the only compensable service-connected disability is a mental disorder which is assigned a 70 percent evaluation, and such mental disorder precludes the appellant from securing or following a substantially gainful occupation, the mental disorder shall be assigned a 100 percent schedular evaluation under the appropriate diagnostic code. The current evidence reflects that the appellant has not been substantially gainful employed for several years. He has testified that his irritability and anger result in his inability to get along with other people, including customers and other co- workers. As previously discussed, the recent VA examination reveals the appellant does manifest significant anger, poor frustration control, argumentativeness, anxiety, and depression. The undersigned is satisfied that the symptoms the appellant experiences are manifestations of the service-connected PTSD with anxiety and depression, are of such a debilitating and chronic nature as to prevent him from securing and following a gainful occupation at the present time. Accordingly, it is the Board's judgment that a 100 percent schedular evaluation is warranted pursuant to the provisions of 38 C.F.R. § 4.16(c). ORDER A 100 percent schedular evaluation pursuant to 38 C.F.R. § 4.16(c) is granted, subject to the law and regulations governing the payment of monetary benefits. REMAND In May 1993, the Board remanded the case, in part, for an examination by a gastrointestinal specialist. At that time the Board specifically requested that the examiner determine whether the veteran had active peptic ulcer or a duodenal ulcer disease or any residuals thereof. Following the examination, which was conducted in July 1993, the impressions were large hiatal hernia, reflux esophagitis, chronic gastritis, and a deformed duodenal bulb. However, the examiner did not render an opinion as to whether any of these disabilities represented peptic ulcer disease or whether the deformed duodenal bulb was a residual of peptic ulcer disease. The record further reflects that the appellant, during his October 1991 hearing, indicated that he was treated during the 1970's by a Dr. Chaten at the White Stone Hospital in Queens, New York, for a duodenal ulcer. This documentation is not of record in the claims folder. In accordance with the statutory duty to assist the appellant in the development of evidence pertinent to his claim, the case is REMANDED for the following actions: 1. The RO should obtain from the appellant the names and addresses of all medical care providers who treated him for gastrointestinal disorders following his separation from service. After securing from the appellant the appropriate authorizations for release of information, the RO should obtain copies of all private medical records regarding treatment for his peptic ulcer disease/duodenal ulcer disease since his release from active duty, including copies any available relevant records from Dr. Chaten or the White Stone Hospital. 2. Thereafter, it is requested that the appellant's VA claims folder be reviewed by a gastroenterologist in order to render an opinion with regard to the following: (a) Does the current medical evidence confirm the presence of peptic ulcer disease or the residuals thereof; if yes, is the hiatal hernia considered to be part of the peptic ulcer disease complex? (b) Does the deformity of the duodenal bulb, diagnosed during July 1993 examination, represent a residual of a duodenal ulcer. If the examiner deems that another VA examination would be necessary or useful, such examination should be accomplished. Thereafter, the case should again be reviewed by the RO. If any benefit sought on appeal (for which a notice of disagreement has been filed) remains denied, the appellant and his representative should be furnished a supplemental statement of the case and an opportunity to respond thereto. The case should then be returned to the Board for further appellant consideration. J.F. GOUGH 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).