Citation NR: 9622776 Decision Date: 08/08/96 Archive Date: 08/16/96 DOCKET NO. 91-23 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an increased evaluation for post-traumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. 2. Entitlement to an increased evaluation for a skin disorder, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant; Daniel Dennehy; Chief, VA Day Treatment Center; and the veteran’s brother-in-law ATTORNEY FOR THE BOARD Grace Jivens-McRae, Counsel INTRODUCTION The veteran served on active duty from January 1960 to January 1964 and again from May 1968 top April 1970. This appeal arises from a September 1989 rating action of the Boston, Massachusetts, Department of Veterans Affairs (VA) Regional Office, which denied evaluations in excess of 50 percent for PTSD and 10 percent for a skin disorder. The Board of Veterans’ Appeals (Board) remanded the instant claim in November 1991 and August 1993 for further development. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his accredited representative contend, in essence, that the veteran’s PTSD and skin disorder are more severe than the current evaluations reflect. The veteran maintains that he suffers from nightmares, isolation, flashbacks, sleeplessness, panic attacks, and anger. He also maintains that because of his skin disorder, he suffers from constant itching, flaking, drying and cracking of his skin. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), 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 a 100 percent schedular evaluation for PTSD and a 30 percent schedular evaluation for tinea versicolor. 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 veteran’s service-connected PTSD is productive of recurrent nightmares, panic attacks, explosions of anger, and virtual isolation in the community. 3. The veteran’s service-connected tinea versicolor is productive of constant itching, bleeding, hyperpigmentation with fine scale over the upper trunk, and follicular pattern over the flanks, thighs, and groin; ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptional repugnance is not shown. CONCLUSIONS OF LAW 1. A schedular evaluation of 100 percent for service- connected PTSD is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.129, 4.130, Diagnostic Code 9411 (1995). 2. A schedular evaluation of 30 percent for service- connected tinea versicolor is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.118, Diagnostic Code 7806 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board notes that the veteran's claims for increased evaluations for PTSD and a skin disorder are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented plausible claims. A claim for an increased evaluation is well grounded if the claimant asserts that a condition for which service connection has been granted has worsened. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). In this case, the veteran testified at a personal hearing before the RO in November 1990 that his PTSD and tinea versicolor had worsened over the years, and he has therefore established well-grounded claims. Since well-grounded claims have been established, the Department has a duty to assist the veteran in the development of facts pertinent to his claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1995). The veteran provided personal hearing testimony in connection with his claims in November 1990. The Board notes that the instant claims have been remanded on two occasions. The veteran was also provided psychiatric and dermatology examinations in connection with these claims. Additionally, the veteran was informed by the RO in June 1994, that it was the understanding of the RO that his private psychiatrist was no longer in private practice. He was asked to submit any records he may have relating to the psychiatric treatment provided by Sheldon Zigelbaum, M.D. The RO also wrote to Dr. Zigelbaum in November 1994, requesting the veteran’s treatment records. There was no response. The duty to assist is not a one-way street. If the veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet.App. 190 (1991). There is no indication that there is further evidence to obtain that the RO has not already sought. Therefore, the Board determines that there is no further obligation to assist the veteran in the development of his claims pursuant to 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of rating which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Under the VA's Schedule for Rating Disabilities, when there is a question of which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1994). Pertinent regulations do not require that all cases show all the findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. In considering increased rating cases, particular attention is paid to 38 C.F.R. Part 4, especially those sections which are potentially applicable, whether raised by the appellant or not, as is required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). This review includes 38 C.F.R. § 4.1, which requires that each disability be reviewed in relation to its history and that an emphasis be placed on the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2, which requires that all medical evidence be viewed in conjunction with the history of the condition, and that each disability must be considered in relation to the veteran working or seeking work. The provisions of C.F.R. § 4.10 indicate that, in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or systems, and medical examiners must furnish, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of the disability upon the person's ordinary activity. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete, or inaccurate report, and to enable the VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet.App. at 594. However, where, as in this case, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). Service connection is in effect for PTSD. A 50 percent evaluation has been assigned for this disability under the provisions of Diagnostic Code 9411 of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. Service connection was established for PTSD by a rating decision of July 1981. A 50 percent evaluation was assigned, effective December 1980. The veteran was hospitalized by VA from June 1982 to September 1982 and treated for what was diagnosed as atypical depression. He had complaints of depression, anxiety, suicidal ideations, nightmares and vascular headaches. After he was placed on medication, the veteran had a much improved mood and cessation of nightmares. From February 1983 to April 1983, and from April 1980 to May 1986, he was again hospitalized by VA and treated for PTSD. He complained of increasing sleep disturbances, vomiting, memory loss, nocturnal incontinence and a recurrence of nightmares about Viet Nam. He was evaluated for temporal lobe epilepsy and the examiner found little basis for neurological disease other than migraines. As for the veteran’s service-connected skin disorder, service connection is in effect for tinea versicolor. A 10 percent evaluation has been assigned for this disability under the provisions of Diagnostic Code 7806 of the VA's Schedule for Rating Disabilities, effective November 1972. By rating decision of July 1981, the veteran’s evaluation for tinea versicolor was increased from 10 percent to 30 percent, effective December 1980. Based upon findings on an April 1981 VA dermatological examination, however this rating was later reduced to 10 percent, effective November 1983. A 10 percent evaluation remains in effect to this date. PTSD A review of the record reveals that the veteran attempted to reopen his claim for an increased evaluation for PTSD with an April 1989 statement from his private psychiatrist, Sheldon Zigelbaum, M. D. Dr. Zigelbaum indicated, in pertinent part, that the veteran had been his patient since 1984, with his most recent appointment in April 1989. Dr. Zigelbaum’s diagnostic impressions were PTSD, chronic (catastrophic in quality); acute paranoid disorder (under conditions of high stress)and brief reactive psychosis (under conditions of acute stress). It was Dr. Zigelbaum’s opinion that the veteran’s current status demonstrated that his attitudes toward all of his interpersonal contacts (save his immediate family) were so adversely affected as to result in virtual isolation within the community. He exhibited symptoms sometimes including gross repudiation of reality with disturbed thought and fantasies, delusions, confusion, panic and profound retreat from mature behavior. Although the veteran had attempted employment in the past, Dr. Zigelbaum noted that any attempt at gainful employment exacerbated the veteran’s PTSD and adversely affected his ability to maintain either occupational or educational efforts. Dr. Zigelbaum also attached a letter written to him from a VA vocational rehabilitation specialist which indicated that despite repeated efforts, the veteran’s service-connected and other disabilities precluded him from reentering training. In July 1989, the veteran underwent a VA psychiatric examination. He reported that he was not working and made complaints of continuing to be emotionally isolated, emotionally numbed, and violently explosive with unpredictable flashbacks and nightmares on a several times per week basis. He indicated he was hyperalert and had panic states. The examiner stated that, up to this point, the veteran’s PTSD seemed unresolvable. However, it was his opinion that the veteran’s work with Dr. Zigelbaum was important in that it kept the veteran from being hospitalized. The diagnosis was PTSD, chronic, delayed, severe with marked depressive features, unimproved. In November 1990, the veteran testified at a personal hearing before a hearing officer at the RO. He explained that he was only able to obtain a few hours of sleep per night for months at a time. He also related that most of his time was spent at his cabin in the woods away from everybody. When not in his cabin, he indicated he stayed with his brother-in-law, the only person that he trusted, except for his private therapist. He indicated that he had nightmares on a regular basis and incontinence associated with these nightmares. He also related that he did not have employment but had worked as a volunteer in a VA sheltered workshop. He had to stop working at the workshop because he was considered a threat to people. He stated that he was on Stelazine, which helped him to sleep. He testified that he angered easily and that crowds bothered him. In addition to the veteran, a residential counselor at a program for mentally ill adults, the Chief of the VA Day Treatment Program, and the veteran’s brother-in-law also testified on his behalf. The residential counselor indicated that in his opinion, the veteran was unable to handle everyday stress. The Chief of the VA Day Treatment Program testified that the veteran initially became a volunteer cook in the sheltered workshop and eventually became a member of the workshop in his own right. He was later asked to discontinue his participation because of his inability to control his anger. He also related that the veteran was unable to deal with everyday stress in the kitchen or on a social level. The veteran’s brother-in-law testified that he had known the veteran since the veteran was ten years old. He related that the veteran spent most of his time in a cabin in the woods that had been condemned by the Board of Health. He also testified that the veteran had changed since his return from Viet Nam. Prior to Viet Nam, he was very social and a gregarious type of individual. Since that time, he would not speak of Viet Nam, would not watch war movies, and isolated himself from others. The brother-in-law related a good relationship with the veteran as the veteran would only stay with him if he was not in the woods. (Hearing transcript pp.3-30.) In January 1991, VA received a statement from Dr. Zigelbaum. He indicated that it was his opinion that the veteran was 100 percent disabled, occupationally, socially, and recreationally. Pursuant to the Board’s November 1991 remand, the veteran underwent a VA psychiatric evaluation by a board of two psychiatrists in January 1992. They indicated that since the veteran’s last examination in 1989, he continued to participate in day treatment. It was also noted that he continued to have difficulty interacting with other people and his ability to interact socially and to function within society had deteriorated. He was noted to totally withdraw from society or have dissociative states. He complained of explosiveness, severe social withdrawal, hyperarousability, flashbacks and intrusive memories. On mental status examination, he was alert and oriented and appeared to make every attempt to be cooperative. He was prevented from being as cooperative as he might have been because of his extreme anxiety. He needed intervention, limit-setting, and redirection to make any sense of continuity in his statements. He became overtly tremulous. His speech was pressured but he showed no evidence of a thought disorder. His affect appeared appropriate. His insight was very seriously impaired and interfered with his ability to exercise appropriate social judgment. The diagnosis was PTSD, chronic, very severe. The examiner commented that the veteran’s industrial and interpersonal impairment was of an “extreme” degree. A May 1992 letter from the Chief, Day Treatment Program, of a VA medical center, was sent to the RO in regard to the veteran’s involvement in the VA Day Treatment Program. The Chief of the program indicated, in pertinent part, that the veteran initially participated in the day treatment program as a volunteer, then as a client, and later, was assigned a less definitive role after it was determined that he could not tolerate any stress or pressure after he became belligerent and offensive to others. At the writing of this letter, the veteran continued to be involved with the program on a daily basis and when his stress due to interaction and responsibility interfered with his role, they were able to assist in reducing his anxieties to a point where he could function at a reasonable level. It was noted that the veteran was unable to maintain any work-related projects for any period of time and would be unfit for any work that was stress-related. A June 1992 letter from [redacted] to the RO was sent in support of the veteran’s claim. Mr. [redacted], the veteran’s minister, related the veteran’s activities in the church and his efforts to improve himself over the years. He also related that the veteran had to alter his educational occupational, and social plans over the years because of his physical and mental stress reaction associated with his service in Viet Nam. The veteran was hospitalized by the VA from March 1993 to April 1993 for evaluation for history of seizures, dizziness and loss of consciousness. A routine EEG, sleep deprived EEG, and 24 hour EEG all proved negative. A May 1994 letter from the veteran’s VA endocrinologist to the RO indicated, in pertinent part, that the veteran “suffers terribly” from PTSD which has a direct adverse effect on the metabolic control of the veteran’s potentially life-threatening diabetes. Pursuant to the Board’s August 1993 Board remand, the veteran underwent VA psychiatric and neurological examinations in February 1995. The examiner was asked to set forth all psychiatric diagnoses and comment on the relationship, if any, between his service-connected PTSD and any other psychiatric symptomatology present. The veteran’s psychiatric examination revealed that he had intrusive, distressing recollection of events in Viet Nam. He related terrorizing nightmares, signs of psychogenic amnesia, and estrangement from others to a severe degree. He indicated restricted range of affect, hyperarousal, and exaggerated startle response. He noted he had serious flashbacks, ongoing depression, and suicidal attempts. The examiner indicated that the veteran had a major depressive disorder which may be associated with chronic general medication; in the veteran’s case, his physical non-service- connected disabilities. The examiner related the symptomatology associated with major depressive disorder. The examiner also indicated that the veteran had not had a manic episode during his long illness; that he showed no thought disorder, that there were no clear-cut symptoms of borderline personality disorder; and that symptoms of PTSD could cause major depressive illness if not treated properly. The diagnoses were PTSD, chronic, delayed, severe, and major depression, recurrent, severe. The VA neurological examination revealed the veteran complained of “passing out” in August 1985 on three occasions. He also complained of headaches with flashing scintillating scotomata of two to three day duration. The diagnostic impression was PTSD and severe migraine headache disorder. Also pursuant to the Board’s August 1993 remand, a VA social and industrial survey was performed. The social worker stated that the veteran seemed to be suffering from a manic- depressive illness and PTSD as evidenced by his traumatic combat experience and current flashbacks, intrusive thoughts and memories and his inability to form relationships. He was unable to find jobs and had no real relationships. The veteran is presently rated as 50 percent for PTSD under Diagnostic Code 9411 of the VA's Schedule of Ratings. A 50 percent evaluation for PTSD contemplates that the ability to establish or maintain effective or favorable relationships with people must be considerably impaired. By reason of psychoneurotic symptoms, the reliability, flexibility, and efficiency levels are so reduced as to result in considerable industrial impairment. In order to warrant a 70 percent evaluation for PTSD, the ability to establish and maintain effective or favorable relationships with people must be severely impaired. The psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. In order to warrant the next evaluation of 100 percent, it must be shown that the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. There must be 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. The veteran must be demonstrably unable to obtain or retain employment. In evaluating impairment resulting from psychiatric disorders, social inadaptability is to be evaluated only as it affects industrial adaptability. The principle of social and industrial inadaptability, as the basic criterion for rating disability from the mental disorders, contemplates those abnormalities of conduct, judgment, and emotional reactions which affect economic adjustment, i.e., which produce impairment of earning capacity. 38 C.F.R. § 4.129. The severity of disability is based upon actual symptomatology, as it affects social and industrial disability. Two of the most important determinants of disability are time lost from gainful work and decrease in work efficiency. The VA must not underevaluate the emotionally sick veteran with a good work record, nor must it overevaluate his or her condition on the basis of a poor work record not supported by the psychiatric disability picture. It is for this reason that great emphasis is placed on the full report of the examiner, descriptive of actual symptomatology. The record of the history and complaints is only preliminary to the examination. The objective findings and the examiner's analysis of the symptomatology are the essentials. 38 C.F.R. § 4.130. It is clear from a review of the record that the veteran suffers from severe psychiatric symptomatology. Nearly every examiner, VA and private, described the veteran’s PTSD as chronic and severe. In April 1989, Dr. Zigelbaum described the veteran’s PTSD as “catastrophic in quality.” In July 1989, the VA examiner believed the veteran’s PTSD, at that point, seemed unresolvable. In January 1992, a Board of two VA psychiatrists found the veteran’s PTSD to be chronic and very severe. In the February 1995 VA examination report, the examiner also found the veteran’s PTSD to be chronic, delayed and severe. At this point, it should be noted that the United States Court of Veterans Appeals (Court) has ruled that the three criteria for a 100 percent rating are each independent bases for awarding a 100 percent rating. Johnson v. Brown, 7 Vet.App. 95 (1994). In other words, if the veteran's attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community, he is entitled to a 100 percent rating regardless of whether the other criteria have been satisfied. In this regard, in addition to his PTSD being described on most occasions as severe, the VA examiner noted during the veteran’s January 1992 psychiatric examination, that it is difficult for the veteran to interact socially, and that he either totally withdraws from society or has dissociative states where he goes out and rides to exhaustion on his bicycle. The veteran himself testified at a personal hearing that he stays to himself, usually stays in his cabin that is isolated in the woods, and has difficulty with intimate relationships. He also related that if he did not stay in his cabin in the woods, he would only stay a few days with his brother-in-law, the only person other than his therapist that he trusted. This was substantiated by his brother-in- law’s testimony at the personal hearing. Finally, during the most recent VA psychiatric evaluation of February 1995, this examiner also related that the veteran withdrew to his place in the woods or to his friend’s farm in New Hampshire. The evidence compels the conclusion that the veteran is virtually isolated in the community. In addition, it is evident that the veteran, who has not held a regular job for many years, is demonstrably unable to secure and retain gainful employment as a direct result of his psychiatric disorder. Resolving any doubt in favor of the veteran, the Board finds that his PTSD is 100 percent disabling, according to the schedular criteria. Skin Disorder A review of the record reveals that the veteran underwent VA examination in July 1989. He complained of constant itching of the skin surface and periodic eruption of welts with bleeding. Physical examination revealed hyperpigmentation with fine scale over the upper trunk confluent. Follicular pattern was noted over the flanks, thighs, and groin. There were similar islands of spored skin in the axillae and volar forearms. The diagnosis was extensive tinea corporis, not tinea versicolor. The veteran testified at a personal hearing before a hearing officer at the RO in November 1990. He related that he had a skin infection over ninety percent of his body. He also testified of constant itching except in the coldest and driest times. He related that he had flaking, bleeding, drying, and cracking of the skin. (Hearing transcript p.12.) Examination by VA in January 1992 revealed complaints of generalized pruritus exacerbated by hot, humid conditions and excessive sweating. The veteran stated that his pruritus had been constant since 1983, when he moved to Massachusetts from Alaska, where he benefited from the dry, cool conditions. He also complained of overly sensitive skin on the arms and legs, associated with pain. Physical examination of the skin revealed extensive, dry, flaking, fine scales, especially on the upper chest, upper back, and arms, covering approximately 60 percent of the body surface. There were molded, even, light brown hyperpigmented patches and surfaces of the arms from the elbows to the wrists, especially over the extensor surfaces. Clinical testing was positive for fungal hyphae, consistent with tinea versicolor. In November 1994, the RO received medical records from Truesdale Dermatology Clinic regarding treatment the veteran received in September 1992 for his skin disorder. It was noted that the veteran was very pruritic and had a reaction to certain topical ointments that had been used for treatment. Physical examination revealed fine, slightly scaly, tiny patches of the skin, especially on the chest, bilaterally. The diagnosis was tinea. We note that the veteran's tinea versicolor is rated as eczema under 38 C.F.R. Part 4, Diagnostic Code 7806, since, as shown by the schedular criteria, the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Where there is ulceration or extensive exfoliation or crusting and systemic or nervous manifestations or exceptional repugnance, a maximum 50 percent schedular evaluation is warranted. A 30 percent evaluation is provided where there is exudation or constant itching, extensive lesions, or marked disfigurement. A 10 percent evaluation is warranted where there is exfoliation, exudation or itching involving an exposed surface or extensive area. A zero percent contemplates slight, if any, exfoliation, exudation or itching, if on a nonexposed surface or small area. In this case, the veteran is noted to have tinea versicolor over 60 percent of his body. All examiners have reported the veteran’s complaints of constant itching and the veteran himself has testified to his pruritic condition at his 1990 hearing. Based on the foregoing, specifically the extensive area of the skin disease and the constant itching, the veteran clearly warrants a 30 percent evaluation for his skin disorder. However, ulceration or extensive exfoliation or crusting and systemic or nervous manifestations or exceptional repugnance, necessary for a 50 percent evaluation is not shown. ORDER Entitlement to a 100 percent schedular evaluation for PTSD is granted, subject to the regulations governing payment of monetary benefits. Entitlement to a 30 percent schedular evaluation and no more for tinea versicolor is granted, subject to the regulations governing payment of monetary benefits. N. R. ROBIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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 & Supp. 1995), 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, 102 Stat. 4105, 4122 (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. - 2 -