Citation NR: 9601967	
Decision Date: 01/31/96		Archive Date: 02/15/96
DOCKET NO.  94-02 085	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Providence, 
Rhode Island


THE ISSUE

1.  Entitlement to an increased rating for an anxiety 
disorder with a post-traumatic stress disorder (PTSD), 
currently rated as 80 percent disabling.

2.  Entitlement to recognition as a former prisoner of war 
(POW).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


WITNESSES AT HEARING ON APPEAL

Appellant and a VA psychologist




ATTORNEY FOR THE BOARD

A. Shawkey, Associate Counsel



INTRODUCTION

The veteran served on active duty from March 1943 to March 
1946.

This matter comes to the Board of Veterans’ Appeals (Board) 
on appeal from an April 1991 RO rating decision that denied 
the veteran’s claim for a total rating for a psychiatric 
disorder, to include PTSD.  Also in that decision the RO 
found that the evidence did not support the veteran’s 
contention that he was a former prisoner of war (POW).

In a December 1993 statement to the RO, the veteran’s 
representative disagreed with a January 1993 RO rating 
decision which found that clear and unmistakable error (CUE) 
did not exist with respect to a June 1952 RO rating decision.  
As an appeal on this issue has not been fully developed by 
the RO, it is not presently before the Board.  Although not 
certified on appeal, the Board notes that a claim for 
recognition as a former POW was addressed in a December 1993 
supplemental statement of the case.  A response to this issue 
was received from the veteran’s representative in a timely 
fashion.  See 38 C.F.R. § 20.302(c) (1994).  Therefore, the 
Board has considered it on appeal.  


CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that the symptomatology associated with 
his PTSD has increased in severity.  Specifically, he 
maintains that he constantly thinks of his experiences as a 
POW and has nightmares and flashbacks related to service.  He 
further asserts that he cannot work as result of his 
psychiatric disability.


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 granting a total 
rating for the veteran’s service-connected psychiatric 
disorder.

(Consideration of the claim for recognition as a former POW 
is deferred pending completion of the action sought in the 
REMAND portion of this decision below.)


FINDING OF FACT

The symptoms of an anxiety disorder with PTSD render the 
veteran demonstrably unable to obtain or retain substantially 
gainful employment.


CONCLUSION OF LAW

Resolving reasonable doubt in the veteran’s favor, the 
criteria for a total disability rating have been met.  
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.3, 4.7, 
4.16(c), 4.132, Codes 9400, 9411 (1994).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Factual Background

The veteran’s 1943-1946 service medical records show that he 
received psychiatric treatment in service and was determined 
to have chronic and severe anxiety reaction and severe 
stress.  In February 1946 a medical board determined that he 
was unfit for further military duty due to his psychiatric 
condition and he was released from service.  

In August 1946 the veteran filed a claim for compensation 
benefits for a nervous condition.  

The RO granted service connection for chronic and severe 
anxiety reaction in August 1946 and assigned the veteran a 50 
percent evaluation.  In June 1952 the RO increased the 
veteran’s evaluation for anxiety reaction from 50 percent to 
80 percent disabling.

The veteran received psychiatric treatment at a VA hospital 
in September 1989.  He was admitted for approximately twelve 
days after complaining of being depressed since ten days 
earlier.  He also complained that his trucking business had 
not been doing well.  His noted history included 20 
hospitalizations in the previous 45 years and five 
hospitalizations in the past year for depression.  He 
displayed symptoms consistent with depression.  He was 
diagnosed as having PTSD and a major concussion.  He was 
considered capable of employment.  

In July 1990 the veteran filed a claim for an increased 
evaluation for his nervous condition claiming that his 
condition had worsened to the point that he was constantly 
thinking about his experiences in service and, allegedly, as 
a prisoner of war (POW).  He also indicated that he suffered 
from stomach problems which he attributed to his nerves.

In August 1990 the veteran underwent a POW social survey.  
The social worker who interviewed the veteran opined that he 
suffered from chronic depression including suicidal ideation 
and intent, and guilt about surviving the war.  During the 
survey he was coherent with no evidence of hallucinations, 
delusions, loosening of associations.  He exhibited deficits 
in concentration caused by intrusive thought of past military 
events and had a poor memory concentration.  He was noted to 
be shaking and often tearful when discussing military events.  
The social worker opined that the veteran was permanently and 
completely disabled due to his traumatic experiences in 
service.

The veteran completed a report of medical examination in 
September 1990 for a disability evaluation.  He indicated 
that his mental health problems included trouble breathing, 
sleeping, bad dreams and thoughts about his war experiences.  
He also reported that he startled easily, had anxiety 
problems, and was forgetful.  He further reported that he had 
fear and guilt and could not be with people.

During the September 1990 VA examination, the veteran was 
found to be extremely anxious.  He showed no evidence of 
psychotic thought disturbance, but did exhibit a dysphoric 
mood.  He was also noted to have a lot of difficulty getting 
along with people and reportedly spent most of his time 
alone.  He reported that he was married with four children.  
He was diagnosed as having PTSD and dysthymic disorder.  He 
was determined by the examiner to have a moderately severe 
disability.

The veteran was examined by Robert D. Coli, M.D., in 
September 1990 for stomach complaints.  Upper abdominal 
discomfort was attributed to anxiety and depression.  The 
examiner opined that the veteran was chronically and totally 
disabled due to PTSD.

The veteran underwent a POW examination in October 1990.  He 
was noted to be an extremely poor historian, rambled, and 
could not stick to any subject.  The examiner opined that the 
veteran had such a psychological overlay that no coherent 
health history could be obtained.

On file is an undated VA PTSD report indicating that the 
veteran’s interview data was consistent with the criteria 
under the Diagnostic Criteria From DSM-III-R for PTSD.  
According to the examiner, results of the Minnesota 
Multiphasic Personality Inventory (MMPI) yielded a 6-2-7 
profile reflective of an individual who has poor social 
skills, and tended to withdraw from others during periods of 
stress.  His Global Assessment of Functioning (GAF) score was 
50.

On file are VA progress notes from 1990 to 1991 showing 
treatment and prescribed medication for PTSD which was 
described as severe.

In April 1991 the RO continued the veteran’s 80 percent 
evaluation for his psychiatric condition.  

In August 1991 the RO received a letter from a VA 
psychologist who had been treating the veteran for the past 
two years.  He indicated that the veteran had been actively 
involved in individual and group psychotherapy for close to 
two years with no significant change in his condition, and 
that psychotropic medications had been prescribed.  He opined 
that the veteran had very severe PTSD manifested by 
exaggerated startled response, recurrent nightmares of 
combat, intense psychological distress when exposed to events 
that symbolize trauma, sleeping difficulty, diminished 
interest in usual activities, and restricted range of affect 
and feelings of estrangement and detachment from others.

During a hearing at the RO in January 1992, the veteran 
testified that he had not worked for 15 years.  He also said 
that he encountered problems in public whenever he heard loud 
noises.  He said the noises startled him causing him to knock 
people over and hit them.  He said that whenever he was out 
in public during loud storms, he hid in the men’s room until 
they were over.  His treating physician at the VA also 
testified indicating that the veteran had not been 
employable, at least on a full time basis, for the last 
couple of years.  He said that the veteran helps out his son 
in a trucking business sometimes, but does not get paid for 
it.  He said that the veteran was involved in both individual 
and group therapy for the past 18 months and was active in 
the WWII combat group and an ex-POW group.

In April 1992 the veteran submitted a statement to the RO 
indicating that he had not worked in 15 years with the 
exception of sporadic part time work.  He also stated that, 
although a 1991 progress note showed improvement in his 
condition, most of the other records show that he is not 
doing well.  In an August 1992 statement the veteran 
indicated that he could never hold a full-time job, but did 
work for a few years as a self employed truck driver.

The veteran underwent a VA psychiatric examination in 
February 1993.  The veteran was noted to be a friendly, 
likable man who took an ingratiating attitude throughout the 
interview.  He was observed to have startled remarkably at 
the sound of a closing door.  He admitted to hiding in the 
cellar during thunder storms, and to having sleep difficulty.  
He also admitted to having nightmares and flashbacks related 
to his war experiences.  During the examination the veteran 
was restless and moved frequently.  He displayed a grimacing 
expression on his face.  He also displayed a slight 
tearfulness in a passing manner.  His social history was 
essentially negative for anti-social behavior and he showed 
no evidence of delusions.  A rolling tremor was seen in his 
right hand.  He was diagnosed as having chronic and severe 
anxiety disorder, PTSD, question of mild incipient dementia, 
borderline personality disorder, borderline intellectual 
functioning and question of parkinsonism. 


II.  Legal Analysis

It is the judgment of the Board that the veteran’s claim for 
an increased rating for a psychiatric condition, to include 
PTSD, is well grounded, meaning plausible, and that the VA 
has fulfilled its duty to assist him in developing evidence 
pertinent to his claim.  38 U.S.C.A. § 5107(a) (West 1991); 
38 C.F.R. §§ 3.103, 3.159 (1994).

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; 38 C.F.R. Part 4.  
Separate diagnostic codes identify the various disabilities.

In April 1991 the RO expanded the veteran’s psychiatric 
rating evaluation to include PTSD.  A 70 percent evaluation 
is warranted for anxiety or PTSD where the ability to 
establish or maintain effective or favorable relationships 
with people is severely impaired and the psychoneurotic 
symptoms are of such severity and persistence that there is 
severe impairment in the ability to obtain or retain 
employment.  A 100 percent evaluation requires that attitudes 
of all contact except the most intimate be so adversely 
affected as to result in virtual isolation in the community, 
or that there be totally incapacitating psychoneurotic 
symptoms bordering on gross repudiation or reality with 
disturbed thought or behavioral processes (such as fantasy, 
confusion, panic, and explosions of aggressive energy) 
associated with almost all daily activity resulting in 
profound retreat from mature behavior.  Finally, if the 
veteran is demonstrably unable to obtain or maintain 
employment, a total rating is warranted.  38 C.F.R. § 4.132, 
Codes 9400, 9411.

The severity of the veteran’s PTSD must be assessed in the 
context of its entire history.  38 C.F.R. §§ 4.1, 4.130; 
Schafrath v. Derwinski, 1 Vet.App. 589 (1991).  The evidence 
shows that the veteran has difficulty getting along with 
other people and spends most of his time alone.  It also 
shows that he has been unemployed (at least on a full time 
basis), for many years and has been determined by a number of 
VA examiners to be totally disabled.  Significant weight 
should be afforded to the veteran’s treating VA psychologist 
who has been treating him for two years and who attended a RO 
hearing on his behalf.  According to this physician, the 
veteran has symptoms consistent with severe PTSD and has been 
unemployable on a full time basis for the past few years.  
The veteran’s PTSD was described by a VA examiner in 
September 1990 to be moderately severe and in August 1990 he 
was determined to be permanently and completely disabled by a 
VA social worker.   

While there is conflicting evidence regarding the extent and 
nature of the veteran’s employment history, it is apparent 
that he has not been regularly employed on a full time basis 
for a number of years.  There is some evidence to suggest 
that he periodically works on a part-time basis, but it is 
important to keep in mind that two of the most important 
determinants of disability are time lost from gainful work 
and decrease in work efficiency.  38 C.F.R. § 4.130.  
Sporadic part-time work during the past 15 years represents a 
significant decrease in the veteran’s work efficiency and is 
not considered to be substantial or gainful employment. 

Where, as in the instant case, the only compensable service-
connected disability is a mental disorder, and such mental 
disorder precludes a veteran from securing or following a 
substantially gainful occupation, the mental disorder shall 
be assigned a 100 percent schedular evaluation under the 
appropriate diagnostic code.  38 C.F.R. § 4.16(c) (1994).

ORDER

A total schedular rating (100 percent) for anxiety disorder 
with PTSD is granted.  

REMAND

As for the claim for recognition as a former POW, the Board 
notes that the RO has twice sought for service department 
confirmation of POW status, as is required by M21-1, Part IV, 
paragraph 11.06 (April 1992).  Additionally, it appears from 
a reading of a February 1993 letter sent to the veteran that 
some research of POW microfiche was undertaken.  Although the 
veteran was subsequently asked to provide more specific 
information about his military status, including his units of 
assignment and while he failed to reply, the provisions of 
paragraph 11.06c(6) make it clear that the veteran is to be 
given full opportunity to present all evidence in support of 
his claim.  Moreover, this paragraph requires that he be 
specifically told of the kind of evidence necessary to 
prosecute his claim.  Cf. Robinette v. Brown, 8 Vet.App. 69 
(1995).  Additionally, the Board notes that action is not to 
be taken by the RO until after approval of the denial of POW 
status by the Director, Compensation and Pension.  M21-1, 
Part IV, paragraph 11.06f.  If this was done with respect to 
the November 1993 rating decision, it is not evident in the 
file.  Consequently, in order to comply with established 
adjudicatory procedures with regard to this claim, the case 
is REMANDED to the RO for the following:

The RO should contact the veteran and 
inform him of the kind of evidence 
required to complete his application for 
recognition as a former POW, including 
the specific notice requirements of M21-
1, Part IV, paragraph 11.06c(6).  
Thereafter, a search for additional 
records should be made, including such 
records as those that might be kept at 
the National Archives and those related 
to any POW debriefing.  Another attempt 
at confirmation from the service 
department should be made pursuant to 
M21-1, Part IV, paragraph 11.06e(3)(a).  
Any information obtained, including that 
provided by the veteran, as well as 
information previously relied upon such 
as the veteran’s certificate of 
disability discharge, should be forwarded 
to the service department.  Thereafter, 
approval of any determination should be 
sought pursuant to M21-1, Part IV, 
paragraph 11.06f.  If the benefit sought 
is denied, a supplemental statement of 
the case should be issued.  

After the veteran and his representative have been given an 
opportunity to respond to the supplemental statement of the 
case, the claims folder should be returned to this Board for 
further appellate review.  No action is required of the 
veteran until he receives further notice.  The purposes of 
this remand are to procure clarifying data and to comply with 
governing adjudicative procedures.  The Board intimates no 
opinion, either legal or factual, as to the ultimate 
disposition of this appeal.



		
	MARK F. HALSEY
	Acting 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 acting member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
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 (1988).  The date that appears on the 
face of this decision constitutes the date of mailing and the 
copy of this decision that you have received is your notice 
of the action taken on your appeal by the Board of Veterans’ 
Appeals.  Appellate rights do not attach to those issues 
addressed in the remand portion of the Board’s decision, 
because a remand is in the nature of a preliminary order and 
does not constitute a decision of the Board on the merits of 
your appeal.  38 C.F.R. § 20.1100(b) (1994).

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