BVA9500210 DOCKET NO. 93-05 948 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to Paragraph 29 benefits based on hospitalization from December 13, 1988, to January 8, 1989, for service-connected post-traumatic stress disorder (PTSD). 2. Entitlement to a total disability evaluation based on individual unemployability. 3. Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. 4. Entitlement to service connection for exposure to Agent Orange. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patrick J. Costello, Associate Counsel INTRODUCTION The veteran had active military service from April 1968 to September 1969, and from November 1971 to June 1972. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from rating decisions issued in July 1989, December 1989, and December 1991, of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida. CONTENTIONS OF APPELLANT ON APPEAL The veteran currently suffers from post-traumatic stress disorder (PTSD) and requests that the Board find his psychiatric disability more disabling than currently rated. He maintains that he suffers from near continuous depression, anxiety, hallucinations, and flashbacks. As a result of this condition, he avers that not only should his PTSD be rated higher, but he should also receive a total rating based on individual unemployability. He claims that due to his PTSD, he is unable to obtain and maintain employment. Additionally, the veteran contends that as a result of his tour of duty in Vietnam, he was exposed to Agent Orange and other defoliants containing dioxins. This exposure has led him, he alleges, to suffer from many "disabilities" which affect his daily activities. Finally, the veteran asks that the RO's decision, which denied Paragraph 29 benefits for hospitalization for a period of greater than 21 days be overturned, and a total temporary disability rating be assigned for the period. 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, for the issue of service connection for exposure to Agent Orange, the veteran has failed to state a claim upon which relief may be granted, and that issue is denied. It is also the decision of the Board that the preponderance of the evidence is against the claim for a temporary total rating for a period of hospitalization and treatment. However, it is also the decision of the Board that the preponderance of the evidence is for an increased rating for PTSD, which, for all practical purposes, prevents the veteran from obtaining and maintaining substantially gainful employment. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. The veteran claims that while in Vietnam he was exposed to Agent Orange; however, he fails to specify what disability or disabilities, as opposed to symptoms, he now suffers due to said exposure. 3. The veteran was admitted to a VA hospital for the period of December 13, 1988, through January 8, 1989. 4. The veteran refused, ignored, and was otherwise uncooperative in the treatment proffered by the VA during his hospitalization. 5. The veteran's PTSD produces severe social and industrial inadaptability. 7. The veteran's service-connected disorders are sufficiently severe as to preclude him from obtaining and maintaining a substantially gainful occupation consistent with his education and employment experience. CONCLUSIONS OF LAW 1. The claim for entitlement to service connection for exposure to Agent Orange is denied for failure to state a claim upon which relief may be granted. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1994); Sabonis v. Brown, 6 Vet.App. 426 (1994). 2. The criteria for a temporary total rating based on a period of hospitalization from December 13, 1988, through January 8, 1989, have not been met. 38 C.F.R. § 4.29 (1994). 3. The criteria for a 70 percent evaluation for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 3.340, 3.341, 4.1, 4.2, 4.7, 4.10, Part 4, Diagnostic Code 9411 (1994). 4. A total (100 percent) rating is warranted on account of unemployability due to service-connected disability. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented a well-grounded claim for the issues of Paragraph 29 benefits, a total rating, and an increased rating for PTSD. The facts relevant to this appeal have been properly developed and the obligation of the Department of Veterans Affairs (VA) to assist the veteran in the development of his claim has been satisfied. Id. I. Service Connection for Agent Orange Exposure The veteran has requested service connection for exposure to chemical dioxins, i.e., Agent Orange. The RO has denied his claim noting that the veteran has not specifically indicated what, if any, disability from which he now suffers, was caused by exposure to Agent Orange. VA Form 21-6796, Rating Decision, December 20, 1991. The veteran has appealed that decision claiming that he currently suffers from twelve different "symptoms" and that he should be service-connected for each one of those conditions. See VA Form 21-4138, Statement in Support of Claim, with attachment, June 18, 1991; Letter from DAV National Service Officer, April 1, 1992. In Sabonis v. Brown, 6 Vet.App. 426 (1994), the Court of Veterans Appeals (the Court) reiterated its position previously reported in King v. Brown, 5 Vet.App. 19, 21 (1993) and Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992). That is, per 38 U.S.C.A. § 5107(a) (West 1991), the appellant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. The Sabonis decision further dictated that when there is a lack of entitlement under the law or an absence of legal merit, the claim should be dismissed. Moreover, the action of Board should be terminated immediately concerning that issue. In this situation, since the veteran has refused to state with specifics what disability he currently suffers from due to Agent Orange exposure, it is our opinion that he has simply failed to state a claim for which relief may be granted. In other words, since the veteran is not claiming a particular disability or disease as being caused by chemical dioxin exposure, there is no possible legal entitlement, and thus, this issue on appeal is denied. II. Paragraph 29 Benefits The appellant claims that he was in a VA hospital more than 21 days [December 13, 1988, through January 8, 1989] for treatment of service-connected PTSD. A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service- connected disability has required hospital treatment in a Department of Veterans Affairs or an approved hospital for a period in excess of 21 days or hospital observation at Department of Veterans Affairs expense for a service-connected disability for a period in excess of 21 days. Notwithstanding that hospital admission was for a disability not connected with service, if during such hospitalization, hospital treatment for service- connected disability is instituted and continued for a period in excess of 21 days, the increase to a total rating will be granted from the first day of such treatment. 38 C.F.R. § 4.29 (1994). This is also known as "Paragraph 29" benefits. At the time of the veteran's hospitalization, the disabilities for which he was service-connected were PTSD, the residuals of a gunshot wound to the left thigh, the residuals of a healed fracture of the left forearm, and the residuals of malaria. See VA Form 21-6796, Rating Decision, August 4, 1988. The medical reasons for the appellant's hospitalization at a VA medical facility from December 13, 1988, to January 8, 1989, were the assessment of the veteran's medical condition and the "weaning him off" of the various medications prescribed to him for treatment of his disabilities. PTSD is not mentioned. VA Form 10-1000, Discharge Summary (Inpatient Care), February 13, 1989. During his hospitalization, an attempt was made to discontinue the veteran's various medications. However, instead of abiding by the treatment prescribed by the VA physicians, the veteran sought medications from his wife. Additionally, the veteran was seen by numerous clinicians for evaluation and treatment of his psychiatric conditions. However, not only was he uncooperative with the clinicians, but he also refused to participate in any treatment suggested by the VA. ["When medications were weaned off he called his wife to bring a supply of his own medications - kept in his home....He was found totally uncooperative for the milieu therapy." VA Form 10-1000, 12/13/88 - 1/8/89] 38 C.F.R. § 4.29 (1994) clearly indicates that in order to receive benefits not only must the veteran be hospitalized, but he must also be treated for a service-connected condition. Interpreting the medical records in a manner most favorable to the veteran, even to the point of conceding, in direct opposition to the written record, that he was admitted to the hospital for treatment of PTSD, he clearly received no treatment for that disorder. He ignored, refused, and short-circuited virtually all treatment offered by the VA. Entitlement to benefits under 38 C.F.R. § 4.29 (1994) is not warranted. III. Increased Rating for PTSD In August 1988, the veteran was granted service-connection for PTSD, and a 30 percent disability evaluation was assigned. VA Form 21-6796, Rating Decision, August 4, 1988; 38 C.F.R. Part 4, Diagnostic Code 9411 (1988). The following year, he requested an increased rating for this condition. The RO denied that claim in July 1989 noting that the symptoms manifested by the veteran did not substantiate his claims that his condition was more severe than previously rated. The veteran appealed that decision. Since that time, the veteran has undergone numerous hospital stays for his psychiatric disorder. On the basis of those repeated hospitalizations, along with a VA Compensation and Pension Examination which quantified the veteran's condition, an increased rating was granted in October 1990. VA Compensation and Pension Examination, September 20, 1990; VA Form 21-6796, Rating Decision, October 25, 1990. A 50 percent disability rating was assigned. 38 C.F.R. Part 4, Diagnostic Code 9411 (1990). Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (1994). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. §§ 4.10, 4.40, 4.45, and 4.59 (1994). In using the above criteria to assign the veteran a disability rating of 50 percent, the RO's decision also reflected the September 1990 examination report that stated that the veteran was markedly impaired in his interpersonal, social, and industrial potential. 100 percent evaluation will be assigned for PTSD when 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 such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior will be present. The individual will be unable to obtain or retain employment. A 70 percent rating is warranted when the ability to establish or maintain effective or favorable relationships with people is severely impaired. The psychoneurotic symptoms are of such severity and persistence that there is severe impairment to obtain or retain employment. A 50 percent evaluation will be assigned when the ability to establish or maintain effective or favorable relationships with people is considerably impaired. By reason of psychoneurotic symptoms, the reliability, flexibility, and efficiency levels are so reduced as to result in considerable industrial impairment. When there is definite impairment in the ability to establish or maintain effective or wholesome relationships with people, a 30 percent evaluation is warranted. The psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. A 10 percent evaluation will be assigned when the psychoneurotic symptoms are less than the criteria for the 30 percent rating, with emotional tension or other evidence of nervousness productive of mild social and industrial impairment. 38 C.F.R. Part 4, Diagnostic Code 9411 (1994). Since the October 1990 rating decision, the veteran has repeatedly sought treatment at VA facilities. On the basis of continued treatment and repeated observations of the veteran, in 1991, his therapist labeled his PTSD as chronic and severe. See Outpatient Treatment Records, August - October 1991. Moreover, the veteran's GAF (Global Assessment of Functioning Scale) was listed as 45. In support of his claim, the veteran then submitted to a VA psychiatric examination in December 1991. VA Compensation and Pension Examination, December 3, 1991. The veteran's physician found him to be suffering from moderate to severe PTSD symptoms with a severe inability to function both socially and vocationally. The veteran has continued to seek treatment for his psychiatric condition which is shown in the record through numerous outpatient treatment reports between 1991 to 1994. Additionally, during 1993, the veteran was hospitalized for a period of three months for PTSD. It should be noted that at the end of those three months, he was classified as only suffering from moderate symptoms of PTSD. VA Form 10-9034-2, Medical Record Report, September 8, 1993. However, within three months, he was reclassified as suffering from severe PTSD. Outpatient Treatment Report, December 2, 1993. Hence, the evidence of record provides a sufficient basis on which to reach a determination that the preponderance of the evidence is for an increased disability evaluation. While the clinical findings do not exactly mirror the schedular criteria for a 70 percent disability rating for PTSD, we are of the opinion that the evidence more closely approximates the higher rating versus that of a 50 percent evaluation. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 4.7, Part 4, Diagnostic Code 9411 (1994). This grant is based on the veteran's medical history and clinical findings, which show a severely depressed (possibly suicidal), confused, dependent person. Therefore, a 70 percent evaluation for PTSD is granted. IV. Total Rating In addition to the veteran other claims, he has also requested a total rating for compensation purposes based upon his unemployability. He is presently service-connected for the following: PTSD, now rated as 70 percent disabling as the result of this decision; the residuals of a gunshot wound to the left thigh with retained foreign bodies and scar, rated as 10 percent disabling; a healed fracture of the left forearm, noncompensably rated; and the residuals of malaria, noncompensably rated. The combined schedular evaluation is 70 percent. He is nonservice-connected for schizophrenia, pityriasis rosea, a superficial laceration of the right arm, a shrapnel wound of the right hand, and synovitis of the left knee. In circumstances where the veteran is less than totally disabled under the schedular criteria, it must be found that the service- connected disorders prevent him from securing and maintaining a substantially gainful occupation, provided that: if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (1994). The veteran now meets the criteria for consideration of a total rating for compensation purposes based on unemployability due to a service connected disability. However, entitlement to the benefit requires evidence that he, in fact, is unemployable as the result of the PTSD. The evidence submitted in this case includes Department of Veterans Affairs (VA) hospital records, a November 1989 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), and numerous VAMC examinations. In November 1989, the veteran submitted an Application for Increased Compensation Based on Unemployability (VA Form 21-8940). He stated that he last worked full time in March 1976. He further claimed that his PTSD so disabled him that he was forced to leave his last position as a postal worker. He also reported that his only prior educational experience was that of eleventh grade. He reported no other special training. It is the function of the Board to weigh and analyze the evidence and to make determinations as to the credibility of the evidence. 38 U.S.C.A. § 5017(b) (West 1991); Sanden v. Derwinski, 2 Vet.App. 97 (1992). Where the preponderance of the evidence is in favor of the veteran's claim or the evidence for and against the claim is approximately in balance, the benefit sought is to be granted. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Although the entire record is not without a measure of ambiguity, e.g. the lack of actual records showing that the veteran has attempted to procure employment, the evidence in the file is predominately in favor of his claim. In fact, there is little evidence of record suggesting that he can work. It can be argued that the inability to work stems from the nonservice connected schizophrenia rather than the service connected PTSD, but the symptoms of the two disorders are not so clearly distinguishable as to permit such a conclusion. A VA psychiatric consultant said in 1988, "It could be considered that his PTSD is part of his schizophrenic illness...or another way of looking at this could be that he has psychotic symptoms with his PTSD." ORDER 1. Entitlement to service connection for exposure to Agent Orange is denied. 2. Entitlement to a temporary total disability evaluation under the provisions of 38 C.F.R. § 4.29 (1994) for a period of hospitalization between December 13, 1988, through January 8, 1989, is denied. 3. An evaluation of 70 percent for PTSD is granted. 4. Entitlement to a total disability rating for compensation based upon individual unemployability is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. JACK W. BLASINGAME 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. (CONTINUED ON NEXT PAGE) 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.