Richard v. Brown

9 Vet. App. 266, 1996 U.S. Vet. App. LEXIS 541, 1996 WL 428993
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 1, 1996
DocketNo. 94-889
StatusPublished
Cited by96 cases

This text of 9 Vet. App. 266 (Richard v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richard v. Brown, 9 Vet. App. 266, 1996 U.S. Vet. App. LEXIS 541, 1996 WL 428993 (Cal. 1996).

Opinion

FARLEY, Judge:

This is an appeal from a June 10, 1994, decision of the Board of Veterans’ Appeals (BVA or Board) which denied an increased rating for the appellant’s service-connected post-traumatic stress disorder (PTSD) condition, currently rated as 70% disabiling, but granted a total rating based upon the appellant’s individual unemployability (TDIU) resulting from service-connected disabilities. This appeal is timely and the Court has jurisdiction under 38 U.S.C. § 7252(a). For the reasons that follow, the Court will vacate the BVA decision and remand the matter for further adjudication.

I.

The appellant served in the U.S. Coast Guard from May 1974 to August 1981, and was apparently one of the first women in that [267]*267organization. Record (R.) at 144. In February 1990, she was service connected for PTSD, rated as 30% disabling with an effective date of November 1987. R. at 561-63. The appellant filed a Notice of Disagreement (NOD) with the Denver regional office (RO), objecting to the 30% rating. R. at 567. The RO assigned a 50% rating in September 1990. R. at 624-25. In October 1990, the appellant filed an NOD with the 50% rating and also stated: “[W]e would note that the [staff of a local medical facility] believes that the veteran’s employability is not appropriate until full vocational rehabilitation has been rendered. On that basis, we believe that a total evaluation is not outside the realm of probability.” R. at 638-39.

The RO assigned a 70% rating in January 1992. R. at 828-30. The appellant continued her NOD. R. at 743. A BVA hearing was held in August 1992 (R. at 767-820), and in November 1992, the BVA remanded the issue of an increased rating for further development, including examination by a female VA psychiatrist. R. at 822.

A VA psychiatric examination was conducted in July 1993, and the doctor diagnosed chronic PTSD and assigned a Global Assessment of Functioning (GAF) rating of 50. R. at 1124. GAF is a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed.1994). A GAF of 50 is defined as “Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” Ibid.

April 1993 records from Barbara Franco, a “Certified Trauma Counselor,” were submitted, in which she stated:

At this time [the appellant’s PTSD] continues to cause severe symptoms such as depression, anxiety, dissociative episodes, and feeling as if the traumatic events are recurring in the present. As Ms. Richard discusses these difficulties, her affect ranges from fiat to excessively anxious and tearful_
... Ms. Richard experiences her PTSD symptoms as so overwhelming that she cannot focus her attention or energy on other issues or needs. Additionally, she continues to have difficulty identifying situations and interpersonal dynamics which set off unconscious trauma-based responses; and tends to assess such “triggering” events and her reactions to them as being attributable to the present time only.

R. at 1126. Her recommendation was that the appellant “consider her emotional difficulties as prohibiting her from seeking gainful employment at the current time. In my opinion, her PTSD symptoms are almost completely unmanageable for her at this point.” R. at 1127.

In October 1993, the RO denied a rating higher than 70%, and also denied TDIU. R. at' 1130-31, 1133. The RO, however, did grant a compensable rating of 10% for a low back condition, effective April 1987. R. at 1131-32. An NOD with the denial of TDIU was received (R. at 1140-41), and the RO issued a Supplemental Statement of the Case (R. at 1143-51). TDIU was denied again in connection with a claim for service connection for the effects of a tubal ligation operation. R. at 1162-65.

Another BVA hearing was held in April 1994, and Dr. Calvin Neptune (Ph.D. in social work), who had treated the appellant since May 1993, testified (without the presence of the appellant):

I don’t believe [the appellant] is capable of maintaining any kind of a job, short of some sub-basement, in a cubical by herself, but she can’t sit for very long and do things like that.... When under any stress she shows a wide range of PTSD symptoms. She’s distracted easily, she can’t concentrate, she becomes confused ....
Virtually, all of her social relationships usually and quickly disintegrate. There are a few intimate ones that she maintains for some length of time....
Because what would happen is, and this would happen in the world of work, ... any disagreement, intellectual, opinion, quickly becomes framed in her need to get [268]*268some control in her life and have a sense of worth, becomes a value issue....
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I [have] worked with a number of people with PTSD, [and of all] the people I [have] worked with, [the appellant] is the first one that I can look you in the eye and say, she’s totally disabled. She can’t work. She has a great false front, it’s about one-half of a millimeter thick. The least bit of adversarial quality to it and you will see someone disintegrate.

R. at 1188-90.

In June 1994, the BVA issued the decision currently on appeal. Regarding the denial of the appellant’s claim for a 100% schedular rating for PTSD, the Board stated:

The veteran’s representative has focused with particularity on the veteran’s inability to obtain or maintain employment to support the argument that a 100 percent sche-dular rating [should be assigned]. We note, however, that the issue of entitlement to a 100 percent schedular rating does involve questions concerning the veteran’s industrial impairment. The review, however, does not end there. Both her social and interpersonal impairment, as well as her overall clinical psychiatric orientation must also be analyzed in order to provide a comprehensive determination pursuant to the applicable diagnostic code.

R. at 18-19. The Board concluded that “the veteran’s disabilities currently render her incapable of pursuing any gainful employment.” R. at 22; see also R. at 14 (“Her service-connected disabilities are of such severity as to preclude her from obtaining substantially gainful employment.”).

II.

Under 38 C.F.R. § 4.132, Diagnostic Code (DC) 9411 (1995), an appellant is entitled to a 100% rating for PTSD if her symptomatology meets the following description:

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. Demonstrably unable to obtain or retain employment.

In Johnson v.

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Bluebook (online)
9 Vet. App. 266, 1996 U.S. Vet. App. LEXIS 541, 1996 WL 428993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richard-v-brown-cavc-1996.