[DECISION ASSESSMENT DOCUMENT]{.underline}

[DOCKET NO.]{.underline}: 91-89 [ACTIVITY:]{.underline} RATING

[NAME:]{.underline} Tripp v. Derwinski

[ISSUE(S)]{.underline}: Increased rating for service-connected
post-traumatic stress disorder; Entitlement to a total evaluation based
on individual unemployability

[ACTION BY COURT]{.underline}: Remand [DECISION DATE]{.underline}:
9/2/92

[Held]{.underline}: BVA failed to provide a sufficient explanation of
the reasons or bases for its decision regarding the increased rating.

[Facts]{.underline}: The veteran is presently evaluated as fifty percent
disabled due to PTSD. He filed a claim for increased benefits on June 6,
1989. He also alleged to be unemployable by virtue of his
service-connected disabilities. His claims were denied by the agency of
original jurisdiction and by BVA.

[Court Analysis]{.underline}: The evidence of record includes a report
of a VA psychiatric examination in December 1989, and a May 1989,
statement of appellant\'s attending VA psychiatrist on a form completed
for the Agent Orange Veteran Payment Program. The VA examination noted
neither the severity of the PTSD nor the effect of the PTSD on the
veteran\'s social and industrial adaptability. The report from his
attending physician, on the other hand, gave a detailed account of the
effect of the PTSD on social and industrial capability. The Court noted
that the BVA decision failed to explain why it gave greater weight to
the C & P examination than to the Agent Orange Program examination.
Because the BVA failed to provide an adequate statement of reasons or
bases for its decision regarding an increased evaluation for PTSD, the
appeal was remanded. The Court stated it had considered reversing the
decision and directing that a seventy percent evaluation be assigned,
but it did not believe the evidence was so clear and convincing that it
would be justified in usurpation of the BVA\'s fact-finding authority.
It was directed that another VA examination be scheduled which complies
with the provisions of 38 C.F.R. §§ 4.1, 4.10.

The Court also noted that BVA failed to consider appellant\'s claim that
he was entitled to a total rating based on individual unemployability,
apparently because of a misinterpretation of 38 C.F.R. § 4.16. At the
outset of the decision, the BVA stated that § 4.16 precluded it from
considering unemployability because appellant\'s condition was a mental
condition. The Secretary stated that the BVA has somehow confused the
requirements of § 4.16(c) with the requirement for a 100% disability
rating. The Court noted that the claim is well-grounded and BVA is
required to consider and apply the relevant provisions of the
regulations. The Court stated that the Secretary is correct in noting
that the BVA should have considered whether appellant was entitled to a
total rating based on unemployability under 38 C.F.R. § 4.16(b) or under
§ 4.16(c) if, upon readjudication, appellant is found to be entitled to
a seventy percent evaluation for PTSD. This issue was remanded for
consideration.

[RECOMMENDED VBA ACTION(S)]{.underline}: Recommend no change in current
regulations, policies, or procedures. VA\'s duty to provide adequate
reasons and bases has been established on numerous occasions and has
been incorporated in M21-1.

APPROVED

J. Gary Hickman, Director

Compensation and Pension Service