BVA9503288 DOCKET NO. 92-11 384 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased evaluation for post-traumatic stress disorder, currently rated as 50 percent disabling. 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD John D. Nachmann, Associate Counsel INTRODUCTION The veteran had active military service from March 1969 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of April 1991 and March 1992 by the Department of Veterans Affairs (VA) Chicago, Illinois, Regional Office (RO). The veteran's records were subsequently transferred to the Honolulu, Hawaii, RO. In June 1993, the Board remanded the veteran's case for the conduction of further development. A portion of this development entailed the adjudication of the issue of entitlement to service connection for schizophrenia, which the RO denied by decision in August 1994. The veteran has not voiced his disagreement with this decision and the issue of entitlement to service connection for schizophrenia is therefore not currently before the Board. In January 1995, the veteran apparently requested that he be afforded a personal hearing at the Honolulu, Hawaii, RO. The Board notes that such a hearing will not be provided as the veteran's request was received more than 90 days following the mailing of the notice of certification of the veteran's appeal to the Board, See 38 C.F.R. § 20.1304 (1994), and in light of the favorable action with regard to the issues on appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO was incorrect in not granting the benefits sought on appeal. He maintains that his service- connected post-traumatic stress disorder prevents him from obtaining substantially gainful employment. Therefore, he requests favorable determinations by the Board. 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 evidence supports the assignment of a 70 percent evaluation for the veteran's post-traumatic stress disorder as well as the claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. 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 current manifestations of the veteran's post-traumatic stress disorder include blunted affect, depressed mood, suicidal ideation, and hallucinations. 3. The veteran's post-traumatic stress disorder is productive of severe social and industrial impairment. 4. The veteran's service-connected disabilities consist of post- traumatic stress disorder and tardive dyskinesia. 5. The veteran completed his sophomore year of college and last worked as a factory representative in June 1980. 6. The veteran is unemployable due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an 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. §§ 4.1-4.14, 4.125-4.132, Diagnostic Code 9411 (1994). 2. The criteria for a total disability rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran has submitted well-grounded claims within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). That is, the Board finds that he has submitted claims which are plausible. The Board is also satisfied that all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and that no further assistance is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). I. Entitlement to an Increased Evaluation for Post-Traumatic Stress Disorder The Board initially notes that the veteran had a tour of duty in the Republic of Vietnam from March 1969 to October 1970 and has been awarded a number of citations. By decision in October 1986, the RO granted service connection for post-traumatic stress disorder and assigned this disability a 30 percent rating. At that time, the RO noted that the report of an October 1985 VA examination indicated that the veteran's social and industrial adjustment was minimal at best. The report of a March 1988 VA examination shows that the veteran was alert, pleasant, and polite. His speech was coherent and relevant and his affect was flat. The veteran's mood was somewhat depressed and no evidence of psychotic thinking was noted. The veteran denied hallucinations and he was oriented to three spheres. His memory was intact and his insight and judgment were fair. A diagnosis of post-traumatic stress disorder was recorded. An August 1990 Board decision increased the evaluation assigned to the veteran's post-traumatic stress disorder from 30 percent to 50 percent. The Board found that the veteran's post-traumatic stress disorder was productive of considerable social and industrial impairment. A December 1990 letter from the Institute for Human Resources reveals that the veteran had attended weekly counseling sessions since May 1990. In addition, the veteran was described as an individual who had an extremely difficult time establishing and maintaining relationships with people due to his psychological problems and as a result it is virtually impossible for him to obtain or retain employment. A December 1990 letter from Saint James Hospital likewise indicates that due to the veteran's extreme social withdrawal, he was not employable at that time or any time in the near future. The report of an August 1991 VA examination reveals that the veteran was tense and guarded. In addition, he was alert and well oriented to all spheres. The veteran spoke clearly and his responses were brief and guarded. His affect was blunted and his mood was described as suspicious. No hallucinations or paranoid thinking were disclosed. The veteran's memory for recent and remote events was good and he complained of post-traumatic stress disorder symptoms. The report of a September 1991 psychiatric examination conducted by Kwan-Bo Jin, M.D., shows that the veteran was very withdrawn and spoke softly. His affect was restricted and his mood seemed to be moderately dysphoric. The veteran had fleeting ideas of suicidal ideation but no homicidal ideation. His concentration was moderately impaired but his memory, insight, and judgment were all within normal limits. Diagnoses of post-traumatic stress disorder and major depression were recorded. A September 1993 letter from the Institute for Human Resources notes that the veteran had been prescribed an enormous amount of medication by the VA and that the veteran's major diagnosis was post-traumatic stress disorder rather than schizophrenia. In addition, the letter revealed that the veteran could probably work no more than ten hours a week on a consistent basis. During an August 1994 VA examination, the veteran endorsed the full spectrum of post-traumatic stress disorder, including hyperarousal, intrusive phenomenon, and avoidance. In addition, the veteran described chronic nightmares that related to two specific traumatic events that he experienced in Vietnam. The veteran also reported experiencing flashbacks, hypervigilance, chronic anger, "severe depression," anhedonia, and episodic suicidal ideation. He, however, denied any prominent delusional material such as thought insertion, thought withdrawal, ideas of reference, somatic delusions, or paranoid delusions. Upon examination, the veteran's speech was soft and of normal rate and clarity. His mood was mildly depressed and his affect was blunted. The veteran's thought processes were linear, logical, and well organized. His thought content was significant for chronic suicidal ideation without intention or plan. No homicidal ideation or delusions were exhibited. The veteran was alert and fully oriented in all areas. His memory was intact as was his attention and registration. No deficits in abstract thinking were found and the veteran's judgment and insight were good. Axis I diagnoses of severe chronic post-traumatic stress disorder, chronic paranoid schizophrenia (in partial remission), and chronic dysthymia were recorded. The examiner also indicated that the veteran had been exposed to extreme psychosocial stressors due to combat and that his current code on the Global Assessment of Functioning Scale (GAF) was 40. Lastly, VA as well as private outpatient treatment records show that the veteran received treatment for his psychiatric disorders on numerous occasions from 1982 to 1994. The veteran has been assigned a 50 percent evaluation for post- traumatic stress disorder pursuant to the provisions of 38 C.F.R. § 4.132, Diagnostic Code 9411. Such an evaluation contemplates considerable impairment in the ability to maintain or establish effective or favorable relationships with people and considerable industrial impairment. The next higher evaluation, a 70 percent rating, requires severe impairment in the ability to maintain or establish effective or favorable relationships with people and severe industrial impairment. After a thorough review of the evidence of record, the Board concludes that a 70 percent evaluation most nearly approximates the veteran's current disability picture. In this regard, the Board notes that during the most recent August 1994 VA examination, the veteran's post-traumatic stress disorder was noted to be chronic as well as severe. In addition, the report of this examination indicated that the veteran's GAF was 40, which corresponds to some impairment in reality testing or communication, or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood. The preponderance of the evidence is against an evaluation in excess of 70 percent as the veteran's post-traumatic stress disorder is not productive of total social and industrial inadaptability. II. Entitlement to a Total Rating Based on Individual Unemployability due to Service-Connected Disabilities The veteran completed his sophomore year of college and last worked as a factory representative in June 1980. The law provides that, before a total disability rating based upon individual unemployability may be granted, it must be shown that the veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. While the United States Code and the Code of Federal Regulations do not offer a definition of "substantially gainful employment," the United States Court of Veterans Appeals has addressed this issue. The Court noted that since the foregoing terms were ill- defined by the laws and regulations pertaining to the VA, much could be learned from the decisions of the United States Circuit Courts of Appeals which had considered the question of whether a Social Security disability claimant was able to engage in "substantial gainful activity." In Moore v. Derwinski, 1 Vet.App. 356, 359 (1991), the Court noted in particular the following standard announced by the 8th Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. The evidence of record in this case indicates that the veteran's service-connected disabilities prevent him from obtaining substantially gainful employment. In this regard, the Board notes that the report of the August 1994 VA examination reveals that the veteran's post-traumatic stress disorder constituted a major impairment to various facets of his life, including his ability to work. In addition, the letters from the Institute for Human Resources and Saint James Hospital indicate that the veteran is unemployable due to his post-traumatic stress disorder. As such, the Board concludes that a total disability rating is warranted. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. ORDER Subject to the laws and regulations governing the award of monetary benefits, a 70 percent evaluation for post-traumatic stress disorder is granted. Subject to the laws and regulations governing the award of monetary benefits, a total disability rating based on individual unemployability due to service-connected disabilities is granted. WARREN W. RICE, JR. 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.