BVA9509180 DOCKET NO. 93-13 871 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date earlier than August 1, 1991, for the assignment of a 70 percent rating for post- traumatic stress disorder (PTSD). 2. Entitlement to a total rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran served on active duty from August 1976 to August 1980. This appeal arises from a July 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that assigned a 70 percent rating for PTSD, effective from August 1, 1991, and denied a total rating for compensation purposes based on individual unemployability. The veteran disagrees with the effective date for the assignment of the 70 percent rating and the denial of a total rating for compensation purposes based on individual unemployability. The case was received at the Board of Veterans' Appeals (Board) in June 1993. A review of the evidence indicates that the veteran is entitled to a temporary total hospital rating for PTSD from July 2, 1991, the date of his hospitalization at the Tallahassee Memorial Psychiatric Center, rather than July 5, the date of his transfer to a VA hospital. While this matter was not specifically addressed on appeal, it falls within the "appeal period" and thus within the jurisdiction of the Board. See VA Manual M21-1, Paragraph 10.02b(3). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his PTSD has been severely disabling since 1989, and he requests that the 70 percent rating for this disorder be effective from then. He maintains that symptoms of his service-connected disabilities prevent him from obtaining or maintaining gainful employment, and he requests a total rating for compensation purposes based on individual unemployability. 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 and VA Chapter 31 (38 U.S.C.A.) counseling file. Based on its review of the relevant evidence, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for an effective date earlier than August 1, 1991, for the assignment of a 70 percent rating for PTSD. It is also the decision of the Board that the evidence supports granting a temporary total hospital rating from an earlier effective date, July 2, 1991, and that the preponderance of the evidence favors a total rating for compensation purposes based on individual unemployability. FINDINGS OF FACT 1. A July 5, 1991, unappealed rating decision denied a rating in excess of 50 percent for PTSD, based on evidence dated through February 22, 1991. 2. The next evidence cognizable as a claim was his hospital admission on July 2, 1991. 3. A temporary total hospital rating was assigned for PTSD from July 5 to August 1, 1991. 4. As of his hospital discharge in July 1991, his PTSD has been severely disabling. 5. Service connection is in effect for PTSD, rated 70 percent; postoperative residuals of right meniscectomy, rated 10 percent; residuals of thoracic spine fracture, rated zero percent; and residuals of fracture of the left ulna, rated zero percent. The combined rating for the service- connected disabilities is 70 percent. 6. The veteran has not engaged in any significant employment since discharge from service in 1980; he has a college degree and some graduate degree credits; and he has work experience as a delivery driver, summer camp counselor, and college animal laboratory assistant. 7. His service-connected disabilities prevent him from engaging in substantially gainful employment commensurate with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than August 1, 1991, for the assignment of a 70 percent rating for PTSD, are not met. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. §§ 3.157, 3.400 (1994). 2. His temporary total rating based on hospitalization should have been effective July 2, 1991. 38 C.F.R. § 4.29; VA Manual M21-1, Paragraph 10.02b(3). 3. The criteria for a total rating for compensation based on individual unemployability are met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty from August 1976 to August 1980. The service medical records show that the veteran sustained a fracture of the left ulna in a helicopter crash. He was subsequently hospitalized for orthopedic treatment, and then hospitalized for psychiatric treatment due to anxiety associated with this incident. In August 1980, the veteran submitted a claim for VA compensation. The veteran underwent VA psychiatric examination in December 1981. The report of this examination indicates the presence of PTSD. A January 1982 RO rating decision granted service connection for PTSD and assigned a 10 percent rating, effective from August 1980. Since then, the rating for PTSD was increased from 10 to 30 percent from July 1987; a temporary total hospital rating was assigned from January 25 to April 1988. The rating was increased to 50 percent from April 1988; assigned a temporary total hospital rating from November 7, 1988, to January 1989; rated 50 percent disabling from January 1989; assigned a temporary total hospital rating from January 21 to March 1990; rated 50 percent disabling from March 1990; assigned a temporary total hospital rating from April 4 to June 1, 1990; rated 50 percent disabling from June 1990; assigned a temporary total hospital rating from July 5 to August 1, 1991; and rated 70 percent disabling from August 1, 1991. VA and private medical reports show that the veteran was treated and examined on various dates in the 1980's and 1990's. These reports show that the veteran was treated primarily for psychiatric problems and do not indicate that any other conditions cause any significant functional impairment. Documents in the veteran's VA Chapter 31 counseling file show that the veteran had a counseling session with a VA psychologist in May 1988. It was noted that he had 12 grades of schooling, but did not graduate. While in service, he sent for and passed his test of general educational development. After service, he entered college using his VA Chapter 34 (38 U.S.C.A.) benefits and graduated with a Bachelor's Degree in Fine Arts in Studio Arts by Sculpture in May of 1985. In September 1985, he entered the Florida State University Graduate School of Art. At the time of the counseling session, he had completed 18 semester hours of graduate work. It was noted that his undergraduate art concentration was in sculpture, but his graduate degree concentration began with sculpture, and then changed to drawing. The veteran gave a minimal work history. He said that he did not work in high school and after high school, he worked about two years as a delivery driver until he joined the service. Since his discharge from service in 1980, he held no full-time employment. He reported working at summer jobs at summer camps as a counselor, and that he had worked part time one year in the animal laboratory at Florida State University while doing graduate work. The counselor concluded that the effects of the veteran's service-connected disabilities did not materially interfere with his ability to return to gainful employment, and the veteran's claim for Chapter 31 benefits was denied. The veteran was hospitalized at the Tallahassee Memorial Psychiatric Center from January to February 1991. At the time of admission, he was very much out of control and had made a suicide gesture. It was noted that his history revealed long-standing severe PTSD with periodic periods of discontrol. The diagnosis was PTSD, severe. The veteran was again hospitalized at the Tallahassee Memorial Psychiatric Center in February 1991. He stated that "he wishes to die." The assessment was dysthymic disorder. He was transferred to a VA medical facility for a short stay, and no summary was prepared for this brief period of VA hospitalization. A July 5, 1991 RO rating decision denied a rating in excess of 50 percent for PTSD. The veteran was notified of this determination later on July 19, 1991, and he did not submit a timely appeal. A report from J. David Moore, M.D., of the Tallahassee Memorial Psychiatric Center, received in November 1991, shows that the veteran was hospitalized from July 2 to 5, 1991, for an increase in suicidal and homicidal ideation. It was noted that he had severe PTSD, and he was transferred to a VA medical facility for follow-up treatment. A VA medical facility notified the RO in November 1991 that the veteran had been transferred from the Tallahassee Memorial Psychiatric Center after being hospitalized there from July 2 to 5, 1991. A summary of the veteran's VA hospitalization in July 1991, received in November 1991, shows that during his initial interview he was often very hypervigilant, very easily provoked and very impulsive, often talking with four letter words. After treatment, he underwent mental status examination and although depressed, he was not suicidal or homicidal. The prognosis was guarded. The Axis I diagnoses were PTSD, delayed, chronic with acute exacerbation; and episodic alcohol abuse. He was discharged from this facility on July 28, 1991. A November 1991 RO rating decision assigned a temporary total hospital rating for PTSD from July 5 to August 1, 1991, then rated this disorder 50 percent disabling. The veteran was notified of these determinations in December 1991. A letter from Dr. Moore, dated in March 1992, notes that the veteran had been followed at the Tallahassee Pain and Stress Management Institute for the past few years and had been followed at the Student Counseling Center at Florida State University. The doctor noted that he had been very involved in the veteran's treatment for several years. It was reported that the veteran had no ability to establish or maintain any effective relationships with other people, and that he was about to destroy and had been destroying his relationship with his wife over the past several years, because of his inability to function in a healthy adult relationship. It was noted that the veteran was very unreliable, rigid in his thinking, and did not function at any kind of efficient level allowing him to be productive in any kind of vocational placement. It was opined that the veteran was totally disabled and that his PTSD and personality disorder were very severe and very limiting to him emotionally. A letter from Gary G. Smith, Ph. D., a licensed psychologist at the Tallahassee Pain and Stress Management Institute, dated in March 1992, notes that he had been treating the veteran since 1989. It was noted that the veteran was an intelligent and articulate person who had training and talent as an artist. However, his ability to work on his art varied with his emotional status, and he often went from active enthusiasm to extreme agitated depression in a few days' time. It was opined that he was totally unable to manage the structure and interpersonal requirements of a regular job. It was also noted that the veteran lacked the stability needed to sustain friendships or other ongoing interpersonal relationships, and that his marriage had been very unstable for several years, and would have ended long ago were if not for his wife's extraordinary patience and support. It was noted that the veteran recognized his need for ongoing psychotherapy, and that he did not respond. The primary goal of the therapy was to help him avoid more frequent and prolonged hospitalizations, and suicide. It was noted that he had a very severe psychological disability. The veteran underwent VA psychiatric examination in March 1992. It was noted that the examiner had previously seen the veteran in October 1989, and since the last exam, the veteran had not pursued any education and had not planned to do so. It was noted that he had been married since 1985, and that his wife had left him one month ago, claiming "I can't take it anymore. I can't stand your PTSD." It was noted that the veteran remained very distraught since then, and almost became tearful when talking about his wife leaving. He stated that he could not relate to anyone and that he felt depressed all the time. It was noted that he had not worked since the last examination. He denied any problems with alcohol or drugs. His symptoms consisted of nightmares related to his plane crash in service as well as flashbacks during which he actually visualized going down with the plane. He also claimed that he felt extremely guilty of surviving when his friends did not. He reported a diminished interest in activities, and basically stayed at home without doing much. He reported a great deal of difficulty with sleep, concentration, and memory, and that he was definitely very hypervigilant and hyperalert. On mental status examination, his mood was profoundly depressed, and his affect was very labile with a very high degree of anxiety. He continued to have symptoms consistent with PTSD as previously noted. He denied any homicidal thoughts, but he was constantly toying with the idea of suicide. The impression was PTSD, moderate to severe. The examiner noted that the veteran's condition had not changed since the prior examination in 1989 and, if anything, appeared to have gradually worsened. The examiner reported that the veteran continued to exhibit a very high degree of anxiety and depression which incapacitated him. (The report of the veteran's psychiatric examination by this doctor in 1989 is also of record, and at the prior examination the doctor concluded that the veteran had PTSD with anxiety and depression. It was also noted at the time of the prior examination that the veteran had dropped out of graduate school). The veteran submitted a claim for increased compensation on April 7, 1992, requesting a higher rating for PTSD. The veteran submitted an application for increased compensation based on unemployability in May 1992. He reported that he had never had a full-time job due to PTSD, and that he became too disabled to work around 1980. The July 1992 RO rating decision increased the rating for PTSD from 50 to 70 percent from August 1, 1991, the date of termination of the temporary total hospital rating based on his VA hospitalization from July 5 to 28, 1991. Another report from Dr. Moore, dated in September 1992, notes that the veteran's PTSD had been severe throughout 1989 and 1990, and it was recommended that he be assigned a 70 percent rating for this disorder retroactively to that time. Another report from Dr. Smith, dated in December 1992, notes that the veteran's PTSD had been severely disabling since at least April 1989. The veteran submitted a notice of disagreement in September 1992. He disagreed with the effective date of August 1, 1991, for the assignment of the 70 percent rating for PTSD and requested an earlier effective date from 1989. In November 1992, the veteran submitted a form showing his withdrawal from college in 1989. The reason for the withdrawal was "medical." The veteran testified at a hearing at the RO in March 1993. He stated that his PTSD had been severely disabling since at least 1989, and that he had not been engaged in any significant employment since discharge from service. He said that he had not sought work since quitting school in 1989 because he had all he could do from becoming "uncorked." The record shows that service connection is currently in effect for PTSD, rated 70 percent disabling; postoperative residuals of right meniscectomy, rated 10 percent disabling; residuals of thoracic spine fracture, rated zero percent disabling; and residuals of fracture of the left ulna, rated zero percent disabling. The combined rating for the service- connected disabilities is 70 percent. II. Legal Analysis The veteran's claims are well grounded, meaning they are plausible. The Board finds that no further assistance to the veteran is required to comply with the VA duty to assist him in developing these claims. 38 C.F.R. § 5107(a). A. Entitlement to an Effective Date Earlier than August 1, 1991, for the Assignment of a 70 Percent Rating for PTSD The record shows that a July 5, 1991, RO rating decision denied a rating in excess of 50 percent for PTSD. The veteran was notified of this decision on July 19, 1991, and he did not submit a timely appeal. The unappealed RO rating decision of July 5, 1991, denying a rating in excess of 50 percent for PTSD, is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104(a) (West 1994). Thus, the effective date for a subsequent increase in the rating for PTSD must be determined in relation to a later claim for increase. The reports of the veteran's hospitalization at a private medical facility from July 2 to 5, 1991, and of his hospitalization at a VA medical facility from July 5 to 28, 1991, received in November 1991, constitute claims for an increased rating for PTSD. See 38 C.F.R. § 3.157(a), (b) (1) (1994). The veteran also submitted a claim for increased compensation requesting a higher rating for PTSD on April 7, 1992. The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b) (2); 38 C.F.R. § 3.400(o). The veteran testified to the effect that his PTSD symptoms have been severely disabling since at least 1989, and reports from Dr. Moore and Dr. Smith corroborate his testimony. There is no medical evidence of record to refute these medical opinions. Colvin v. Derwinski, 1 Vet.App. 171 (1991). While the veteran underwent VA psychiatric examination in March 1992, and the examiner found the veteran's PTSD to be moderate to severe in degree, the examiner who saw the veteran at that time did not consider the reports of Dr. Moore and of Dr. Smith. Nevertheless, the examiner concluded that the veteran had a high degree of anxiety and depression which incapacitated him, and that he constantly toyed with the idea of suicide. The evidence also indicates that the veteran has severe problems with social relationships, and that his wife recently left him because she could not cope with his PTSD symptoms. A longitudinal review of the record indicates that the veteran's PTSD has produced severe social and industrial impairment, but no more, since at least July 2, 1991, when he was hospitalized for PTSD treatment. The effective date for an increased rating for PTSD, however, cannot be prior to July 2, 1991, because of the final unappealed RO rating decision of July 5, 1991, denying a rating in excess of 50 percent for PTSD, based on the evidence on file prior to that date, through February 22, 1991. The evidence reveals that a temporary total hospital rating was granted for PTSD from July 5 to August 1, 1991. This period of hospitalization from July 2 to July 5 is best rated under 38 C.F.R. § 4.29, as was the following (continuing) hospitalization from July 5 to 28, 1991. Hence, an effective date earlier than August 1, 1991, for the assignment of a 70 percent schedular rating for PTSD, cannot be granted. The preponderance of the evidence is against this claim, and it must be denied. Since the preponderance of the evidence is against the claim for an effective date earlier than August 1, 1991, for the assignment of a 70 percent rating for PTSD, the benefit of the doubt doctrine is inapplicable to this claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). B. Entitlement to a Total Rating for Compensation Purposes Based on Individual Unemployability In order to establish entitlement to a higher rating for a disability, the evidence must show symptoms of the disability which meet or more nearly approximate the criteria for higher ratings under the applicable diagnostic codes in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.7. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. The evidence indicates that the veteran has one disability ratable at 40 percent or more and that the combined rating for his service-connected disabilities is 70 percent. It also indicates that his service-connected disabilities, other than PTSD, and his non-service-connected disabilities produce no significant functional impairment. His right knee "pops" and exhibits arthritic changes, but his college education suits him more for "white collar" employment in which the knee disability would be of little significance. The evidence shows that the veteran has not had any significant gainful employment since discharge from service in 1980 due to symptoms of PTSD. While the evidence indicates the presence of occasional problems with other psychiatric disorders, it does not attribute any of the current psychiatric symptoms to those disorders and no other psychiatric disability was found at the veteran's VA psychiatric examination in 1992. Under the circumstances in this case, all of the psychiatric symptoms are considered attributable to the PTSD. The Board recognizes that the veteran was able to obtain a college degree and some credits towards a graduate degree, but this accomplishment was made in a school environment, and even then, the veteran had to quit school due to medical problems in 1989. Given the veteran's limited occupational background, and the severity of his service-connected conditions, primarily PTSD, it is doubtful that he could perform any gainful employment. Additionally, Dr. Moore and Dr. Smith in reports, dated in March 1992, indicate that the veteran has no ability to establish or maintain any effective relationships with other people, and that he is incapable of functioning in a vocational environment. There is no medical evidence of record to refute these opinions. Colvin v. Derwinski, 1 Vet.App. 171. After consideration of all the evidence, including the veteran's testimony, the Board finds that it favors granting a total rating for compensation purposes based on individual unemployability. ORDER An effective date earlier than August 1, 1991, for the assignment of a 70 percent rating for PTSD, is denied. An effective date of July 2, 1991, for commencement of a temporary total hospital rating is granted. A total rating for compensation purposes based on individual unemployability is granted. J. E. DAY 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.