BVA9507621 DOCKET NO. 93-14 302 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to an increased rating for post-traumatic stress disorder, currently evaluated as 70 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine E. Puffer, Associate Counsel INTRODUCTION The veteran had active service from July 1967 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 1992 and November 1992 rating decisions of the Department of Veterans Affairs (VA) Togus, Maine, Regional Office (RO), the latter of which granted an increased evaluation to 70 percent for the disability on appeal. The veteran was notified by RO letter of June 1993 that his appeal had been certified to the Board for disposition. In July 1993, the veteran submitted further documents in support of his claim. As these documents were clearly received within 90 days from the RO mailing the veteran the notice that his appeal had been certified to the Board, and in view of the Board's favorable disposition of the appeal, no waiver of consideration of this evidence is necessary. See 38 C.F.R. § 20.1304(a),(c) (1994). Therefore, the evidence has been accepted by the Board and considered in the adjudication of the instant appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that his post-traumatic stress disorder is more severely disabling than his current evaluation reflects. He avers that his psychiatric condition has rendered him too disabled to work. It is requested that the veteran be granted the benefit of every reasonable doubt. 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 evidence supports the award of a 100 percent schedular evaluation for the veteran. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the instant claim has been obtained by the RO. 2. The veteran's service-connected post-traumatic stress disorder has rendered him demonstrably unable to obtain or retain gainful employment. CONCLUSION OF LAW The schedular criteria for a 100 percent evaluation for post- traumatic stress disorder have been satisfied. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.102, 4.1, 4.16, 4.129, 4.130, 4.132, Diagnostic Code 9411 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends, in essence, that his service-connected post-traumatic stress disorder has rendered him unable to pursue or maintain gainful employment. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. The rating schedule recognizes that a veteran's disability evaluation may require reratings in accordance with changes in his mental condition. It is thus essential, in evaluating a disability, that it be viewed in relation to its history. 38 C.F.R. § 4.1. The veteran was granted service connection for post-traumatic stress disorder, evaluated as 10 percent disabling, by rating action of August 1983. He was granted an increase to 30 percent by rating decision of December 1989, to 50 percent by rating action of October 1990, and to 70 percent by rating decision of November 1992. An Application for Increased Compensation Based on Unemployability was filed in December 1992, in which he reported that he had become too disabled to work in 1988. In July 1990, Robert Paige, M.S.W., reported that he had been treating the veteran since September 1988 for post-traumatic stress disorder, and that the veteran's condition was worsening. He indicated that the veteran had stopped working as a self- employed carpenter in a very successful business due to his symptomatology. The veteran's income consisted of his VA compensation benefits and the assistance of friends. He recently had built a cabin in the woods to avoid people, deliberately excluding a logging road to discourage visitors. At the time of a September 1990 VA examination, the veteran reported various post-traumatic stress disorder symptoms. It was noted that his condition had deteriorated over the prior year, and that he had not been able to work since January 1990. The veteran reported experiencing more intense antipathy regarding interacting with people, and increased anger and anxiety when in contact with people. He had little tolerance for rules, regulations, and formal duties. The veteran was viewed as intensely preoccupied with Vietnam. On mental status examination no evidence of thought disorder was present and he was moderately depressed. His insight and judgment were impaired. He was diagnosed with post-traumatic stress disorder, chronic-severe; his highest level of functioning over the last year was assessed as poor; and he was deemed to have significant impairment of social and occupational functioning. The veteran has submitted a copy of part of a June 1991 divorce judgment wherein a court determined that his future earning potential and ability to pay child support was minimal. In October 1991, Mr. Paige reported that the veteran had been increasingly unable to force himself to go to work, and was surviving through the help of his girlfriend and family. He was not expected to be able to return to work "for some time." In a January 1992 letter, Mr. Paige indicated that the veteran's functioning had continued to deteriorate, and that he had been unable to return to work. He was becoming more socially withdrawn, and had been experiencing increasing conflicts in selectman's meetings. Although he had been prescribed medication, he had discontinued taking it. His relationship with his girlfriend was strained. At that time of an October 1991 psychiatric assessment, the veteran described various post-traumatic stress disorder symptoms. He reported that he occasionally worked at small odd jobs, but was unable to work continuously. The veteran described being unable to go on a construction or work site, stating that he had experienced a marked decreased in confidence, lack of concentration, and increased anxiety and anger. Interacting with customers was very stressful and intolerable for him. The veteran stated that he was working as a selectman in his town, which involved minimal pressure and few demands. On mental status examination, the veteran's mood was depressed and somewhat anxious, with a blunted affect. During the evaluation, the veteran obviously struggled to maintain some self-control. A degree of suspiciousness and increased alertness was noted. Axis I impressions of post-traumatic stress disorder and rule-out major depressive disorder were reported. The veteran's stressors over the prior year were moderate to severe, with a Global Assessment of Functioning (GAF) score of 45 over the past year. The examiner strongly recommended a trial of antidepressant therapy, secondary to his significant symptoms of depression and anxiety. During a December 1991 VA examination the veteran reported that he had worked two months the prior year as a carpenter. He complained of depression, anxiety, inability to work, poor sleep, and headaches. The examiner determined that there had been a significant worsening of his condition since his prior VA examination. The veteran described a gradual erosion in his ability to work, although he had previously enjoyed his work, and had owned a rather successful and lucrative business employing seven people. He described greatly decreased industrial initiative and experienced difficulty with concentration and finishing tasks. The veteran was then living with a supportive woman, with whom he enjoyed a very positive relationship despite his considerable symptomatology. Otherwise, he wanted to be alone, and felt pressured when around others. The examiner observed that depressive symptoms were present, and that the veteran's ability to concentrate and to make decisions appeared to be moderately impaired. The examiner also noted significantly depressed mood and, by history, severe inability to function and conclude tasks. The examiner opined that the veteran's judgment and insight were less than what could be expected for a man of his intelligence and accomplishment. Finally, the examiner indicated that the veteran had a profound degree of symptomatology of post-traumatic stress disorder, with superimposed depressive symptoms of a severe degree, and that he currently was unable to function occupationally. The examiner also noted that there was some social impairment, but not to a great degree. The diagnosis was post-traumatic stress disorder, chronic, severe. In his March 1992 substantive appeal, the veteran reported that he was unable to work secondary to anxiety, which was of such severity that he was unable to even respond to job offers. He suffered from a lack of confidence in himself and his work product, and preferred to not deal with people. He indicated that he had last worked as a dishwasher at a friend's restaurant, and did not socialize with anyone. At a May 1992 hearing, the veteran testified that he had obtained a masters degree, and had completed the work necessary for a Ph.D. His contracting business had failed in 1990 because he was unable to deal with stress or the public, and had last worked in May 1991. Although numerous people contacted him with job offers, he was unable to accept any of them because of problems with initiative, a lack of confidence in his ability to work, and difficulty completing work. He divorced his second wife in 1991, after an 11-year marriage, and later became involved with another woman. He rarely went out, and lived about one and one quarter miles in the woods, with no phone or running water. He indicated that his only income was from the VA, and that he attended weekly group therapy with Mr. Paige. Mr. Paige submitted a lengthy letter in August 1992 regarding the veteran's condition. He reported that the veteran was essentially unable to work, because of fears involved in planning for jobs, and fear of failure. Although it was acknowledged that the veteran continued to work as a selectman, Mr. Paige explained that it was not indicative of a high level of functioning. He recounted an episode involving the veteran's work as a selectman, illustrating the veteran's explosive temper. He noted that the veteran had not worked for a year and a half, and had survived on his VA compensation benefits, and help from his family and girlfriend. He concluded that the veteran regularly demonstrated a profound retreat from mature behavior. A VA field examination was conducted in October 1992. At that time, the town manager reported that the veteran was the chairman of the Board of Selectmen in the town, which met twice monthly, and was televised locally. For this he was paid $2,400 a year, and his term expired in May 1993. The veteran was viewed as extremely intelligent, although occasionally very sensitive to issues. The Assistant Police Chief, who had known the veteran for 15 years, reported that the veteran was a model citizen. Although never physically violent, the veteran could be verbally denigrating. He indicated that the veteran had been a selectman for about 12 years, and had personality clashes with other selectmen. Another selectman reported that the veteran was always well-prepared for meetings, and maintained a good degree of control. He indicated that the veteran worked as a carpenter on a regular basis, and did not display bizarre or unwarranted actions. Other persons reported similarly, as well as indicated that the veteran was living with his girlfriend. In a December 1992 Application for Increased Compensation Based on Unemployability, the veteran indicated that he continued to work as a selectman and self-employed carpenter. He reported that he had been unable to accept any of numerous job offers because of extreme anxiety over his inability to complete a job, do satisfactory work or bill customers for the actual amount of time he spent on a job; an inability to deal with customers on a daily or weekly basis, face to face; a total inability to concentrate on work and plan ahead; and a total deterioration of his work skills. In a March 1993 statement, the veteran disagreed with the RO's finding that his work as a selectman was evidence of a lack of industrial impairment. He indicated that it paid him only $146 a month, and that he was the object of a recall election. In a June 1993 statement the veteran reported that, although he had "survived" the recall election, he had decided not to run for reelection, and was no longer serving as a selectman. The veteran's post-traumatic stress disorder has been rated pursuant to 38 C.F.R. § 4.132, Diagnostic Code 9411, and is currently evaluated as 70 percent disabling. There are three independent schedular bases for granting a 100 percent evaluation: the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities resulting in profound retreat from mature behavior; or demonstrable inability to obtain or retain employment. See 38 C.F.R. § 4.132, Diagnostic Code 9411; Johnson v. Brown, 7 Vet.App. 95, 99 (1994). The severity of a disability is based upon evaluating how the actual symptomatology affects social and industrial adaptability. 38 C.F.R. § 4.130. Evidence of social inadaptability is to be evaluated only as it affects industrial adaptability. 38 C.F.R. § 4.129. Two of the most important determinants of disability are time lost from gainful work, and decrease in work efficiency. However, an emotionally sick veteran with a good work record must not be undervalued, nor his condition overvalued based on a poor work record not supported by the psychiatric disability picture. 38 C.F.R. § 4.130. VA examination reports and the reports of Mr. Paige clearly have documented the deterioration of the veteran's industrial ability. He himself has reported about the various fears and need for isolation that prevents him from continuing in his work as a carpenter. Although the veteran also has worked as a teacher and has graduate degrees and studies, he has recounted how difficult it is for him to interact with other people in his employment. By Mr. Paige's account, the veteran had a flourishing construction business with numerous employees that he ultimately lost, due to his psychiatric symptomatology. The veteran's decreased initiative and flexibility are well-documented by various VA examiners, as well as by Mr. Paige, who counsels him on a weekly basis. Although the veteran had managed to continue his work as a selectman for many years, it appears to have been due, at least in part, to a strong personal commitment and feeling of obligation. The veteran is no longer in that position, albeit by personal choice. In any event, the Board concludes that his work as a selectman represented, at best, marginal employment, as it involved working twice a month in a protected environment, for which he was paid less than $3,000 a year. The veteran submitted a statement from the Internal Revenue service indicating that his taxable income for 1991 had totaled only $4,200. This serves to corroborate the veteran's contentions of being able to perform only sporadic, minimal employment, as his disability allowed. As such, his rather intermittent work as a carpenter also represents marginal employment, which shall not be considered as substantially gainful employment for VA compensation purposes. See 38 C.F.R. § 4.16(a). The Board notes that the veteran displayed some initiative during his hearing in testifying as to his ability to assist with the care of his children on a regular basis and in formulating potential employment as a sort of caretaker of acres of land surrounding his home in the woods. However, he has reported that his difficulties are generally in dealing with persons other than those with whom he is close, and any future gainful employment opportunity is purely conjectural and predicated on the occurrence of numerous events. His service-connected psychiatric condition has been evaluated as severe and chronic. While the veteran appears to be a well-respected member of his community, of which he served ably as a selectman, his psychiatric symptomatology has resulted in consistently degenerating industrial ability. In according the veteran every benefit of the doubt, the Board concludes that he is demonstrably unable to obtain or retain employment due to his post-traumatic stress disorder, warranting a 100 percent schedular evaluation. See 39 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.16(c), 4.132, Diagnostic Code 9411. ORDER A 100 percent schedular evaluation is granted. JACQUELINE E. MONROE 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.