Citation Nr: 0001240 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 96-44 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for major affective disorder, depression, currently rated as 70 percent disabling. 2. Entitlement to an increased rating for a seizure disorder, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. A. McDonald, Counsel INTRODUCTION The veteran served on active duty from May 1980 to December 1980. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from the Department of Veterans Affairs (hereinafter VA) regional office in Montgomery, Alabama (hereinafter RO). FINDINGS OF FACT 1. The veteran's service-connected psychiatric disorder results in the inability to retain employment. 2. Manifestations of the veteran's service-connected seizure disorder include episodes of behavior and speech arrest, lasting seconds to minutes, without loss of consciousness or generalized tonic-clonic activity, that occur in clusters of two or three episodes a month, after months without seizure activity. CONCLUSIONS OF LAW 1. The criteria for a 100 percent schedular evaluation for major affective disorder, depression, under the rating schedule in effect prior to November 7, 1996, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9405 (1996). 2. The criteria for a rating in excess of 40 percent for a seizure disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.22, 4.124a, Diagnostic Code 8910 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon review of the record, the Board concludes that the veteran's claims are well grounded within the meaning of the statute and judicial construction. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); 38 U.S.C.A. § 5107(a). Generally, claims for increased evaluations are considered to be well grounded. A claim that a condition has become more severe is well grounded where the condition was previously service- connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The VA therefore has a duty to assist the veteran in the development of facts pertinent to his claims. In this regard, the veteran's service medical records, post-service private clinical data, and VA outpatient, hospitalization, and examination reports have been included in his file. Upon review of the entire record, the Board concludes that the data currently of record provide a sufficient basis upon which to address the merits of the veteran's claims and that he has been adequately assisted in the development of his case. With respect to the veteran's claim, disability ratings are based, as far as practicable, upon the average impairment of earning resulting from the disability. 38 U.S.C.A. § 1155. The average impairment is set forth in the VA's SCHEDULE FOR RATING DISABILITIES (hereinafter SCHEDULE), codified in C.F.R. Part 4 (1999), which includes diagnostic codes that represent particular disabilities. In considering the severity of a disability it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2 (1999). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). I. Psychiatric Disorder Service connection for depression, diagnosed as a major affective disorder, was granted by the RO in 1988, as secondary to the veteran's service-connected seizure disorder, and a 30 percent disability rating was assigned, under the provisions of 38 C.F.R. § 4.132, Diagnostic Code 9207. This rating contemplated major depression with psychotic features that resulted in definite impairment of social and industrial adaptability. Id. At that time, the veteran had been hospitalized in 1986 after a suicide attempt. It was reported that the veteran was depressed over a lack of employment, his seizure disorder, and a breakdown in his living situation. The diagnosis was an adjustment disorder, with a depressed mood. Thereafter, the veteran was hospitalized in 1987, with a history of suicide attempts and complaints of depression. A VA hospital report dated in February 1996, reports suicidal ideation and depression. Mental status examination revealed the veteran had fair hygiene and good eye contact. He was calm, with his speech slow and monotonous. His mood was euthymic and his affect was mood congruent. His memory was intact, and his thought processes were clear, goal directed, and negative for delusions. However, suicidal thoughts and plans were shown. The veteran denied hallucinations. He had fair insight and his judgment was reported as poor. The diagnoses included adjustment disorder with anxiety and depression, chronic dysthymia. A VA examination conducted in October 1996, reported a history of suicidal attempts and numerous diagnoses, to including bipolar affective disorder, psychotic disorder, and depression. The examiner noted that the veteran was neatly dressed, calm, and engageable. The veteran reported that he was socially isolated and withdrawn and did not like to be in crowds. He complained of chronic dysthymia, with symptoms of insomnia, anergia, anorexia, suicidal ideation, paranoia, delusions of persecution, illusions, as well as panic attacks, with symptoms of tremulousness, nervousness, diaphoresis, tunnel vision, inability to breathe, palpitations, and chest pain. He further reported recurrent and intrusive, violent dreams, as well as mood swings of depression and mania. Mental status examination revealed cogent, lucid, and goal directed thinking, with appropriate interaction and communication. His speech was monotonous and of normal rate, with constricted/restricted affect. His psychomotor functions were normal and there was no formal thought disorder. The veteran's insight was limited, but he was cognitively intact and oriented. He was able to concentrate during the examination. The diagnoses included panic disorder with agoraphobia, and a history of bipolar affective disorder, schizoaffective disorder. The Global Assessment of Function was reported as 30. The Board notes that the pertinent regulations governing evaluations for mental disorders were recently amended, effective November 1996. The United States Court of Appeals for Veterans Claims (hereinafter Court) held that where the law or regulation changes during the pendency of a case, the version most favorable to the veteran will generally be applied. See West v. Brown, 7 Vet. App. 70, 76 (1994); Hayes v. Brown, 5 Vet. App. 60, 66-67 (1993); Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). A recent opinion of the VA Office of the General Counsel held that whether the amended mental disorders regulations are more beneficial to claimants than the prior provisions should be determined on a case by case basis. VAOGCPREC 11-97 (1997). Prior to certifying the case to the Board, the RO adjudicated the veteran's claim under the old and revised rating criteria for mental disorders. Accordingly, the veteran will not be prejudiced by the Board's review of his claim on appeal because due process requirements have been met. VAOGCPREC 11-97 at 3-4; Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); Karnas, 1 Vet. App. at 312-13. During the course of the appeal as to this issue, the disability rating for the veteran's service-connected psychiatric disorder was increased under the criteria in the SCHEDULE for mood disorders, specifically, major depressive disorder, and was assigned a 70 percent disability evaluation. Compare 38 C.F.R. § 4.132, Diagnostic Code 9207 (1996), with 38 C.F.R. § 4.130, Diagnostic Code 9434 (1999). Under the criteria for rating major depression with psychotic features, prior to the revisions in November 1996, a 100 percent disability rating was provided when there were active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial adaptability. 38 C.F.R. § 4.132, Diagnostic Code 9207 (1996). A70 percent rating was for assignment with lesser symptomatology such as to produce severe impairment of social and industrial adaptability. Id. The purpose in amending or revising the rating criteria for mental disorders "was to remove terminology in former 38 C.F.R. § 4.132, which was considered non-specific and subject to differing interpretations, and to provide objective criteria for determining entitlement to the various percentage ratings for mental disorders." VAOGCPREC 11-97 at 2, citing 60 Fed. Reg. 54,825, 54,829 (1995). The revised criteria for a major depressive disorder provides a 70 percent rating where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessive rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective work relationships. 38 C.F.R. § 4.130, Diagnostic Code 9434 (1999). A 100 percent schedular rating may be assigned in cases where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. As noted above, where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco, 7 Vet. App. at 58. In this case, the most recent medical evidence of record is a VA examination conducted in February 1999. The veteran noted that most of his social activities were done alone and that he had very few friends. He reported that he did well as long as he was not around people or was not under stress or pressure. The veteran noted that he felt highly stressed and keyed up, but could not control this behavior, even though he noted it was out of control. A history of altercations and being fired from jobs was given, and the veteran reported that he had difficulty getting along with people. He stated that he tended to isolate himself from people to avoid conflicts and tended to withdraw from situations to maintain control of his emotions. The veteran indicated that he had difficulty concentrating and focusing his attention, he experienced decreased energy, sleep impairment, and loss of interest in activities, had persistent thoughts of suicide, and was unable to relax. The examiner noted that the veteran had a labile affect. Thinking was goal directed, and his associations were tightly linked and ideas related. The veteran denied any hallucinatory experiences but admitted to having a toxic reaction to medications which caused him to hallucinate. He denied any problems with memory. Routine day to day stress was reported as provoking suicidal thoughts and he felt overwhelmed by minor problems of daily living. Nevertheless, the examiner stated that the veteran was able to set priorities and make appropriate decisions to common problems of daily living. The diagnosis was chronic major affective disorder. The examiner noted that the veteran reported severe disruptions in life and social functioning. The Global Assessment of Functioning was 60, based on few friends, persistent suicidal thoughts, persistent feelings of sadness and loss of control of his emotional responses. The examiner concluded that the veteran had not been able to sustain any job or personal relationship, and that he had begun to isolate himself socially. The Board notes that the medical evidence in this case, to include the most recent, does not reflect the presence of symptomatology of such severity so as to warrant a 100 percent schedular rating under either the "old" criteria of 38 C.F.R. § 4.132, Diagnostic Code 9207 or the "new" criteria of 38 C.F.R. § 4.130, Diagnostic Code 9434 for evaluating mental disorders. The medical evidence has consistently indicated that he is in contact with reality and he does not experience hallucinations and delusions. There has never been any indication of gross repudiation of reality, with disturbed thought processes. The veteran's memory has been reported as intact, and there is no indication that he has ever experienced memory loss for close relatives, his own occupation, or his own name. He has been described consistently as precisely oriented to person, place, situation, and time. He also has been described as "neatly dressed" and there has never been any evidence of an intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. The Board acknowledges evidence of the veteran's history of suicide attempts, as well as recent reports of persistent thoughts of suicide. Nevertheless, the totality of the medical evidence of record does not support an increased evaluation for the veteran's psychiatric disorder under either 38 C.F.R. § 4.132, Diagnostic Code 9207 (1996) or 38 C.F.R. § 4.130, Diagnostic Code 9434 (1999). Although the RO had previously rated the veteran under Diagnostic Code 9207, the Board finds that the veteran's service-connected psychiatric disorder is more appropriately rated under 38 C.F.R. § 4.132, Diagnostic Code 9405 (1996) of the prior SCHEDULE for rating mental disorders. The medical evidence of record indicates that the veteran's service-connected psychiatric disorder does not result in active psychotic manifestations as contemplated under the previous Diagnostic Code 9207. The previous Diagnostic Code 9405 contemplates a dysthymic disorder, an adjustment disorder with depressed mood, and major depression without melancholia. A 70 percent rating under the previous Diagnostic Code 9405 is assigned when the ability to maintain effective or favorable relationships was "severely" impaired and when the psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain and retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9405 (1996). A 100 percent rating was warranted when the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community, or when there were 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, or when the veteran was demonstrably unable to obtain or retain employment. Id.; see also Johnson v. Brown, 7 Vet. App. 95, 97 (1994) (holding that the criteria in 38 C.F.R. § 4.132 for a 100 percent rating were each independent bases for granting a 100 percent rating). Application of Diagnostic Code 9405 of the 1996 regulations shows that medical evidence as to the severity of the veteran's service-connected psychiatric disorder is sufficient to support a finding of functional impairment which is greater than the currently assigned 70 percent disability rating. Although records continue to be absent notations of gross repudiation of reality, totally incapacitating symptoms, or many other criteria specified under the 100 percent criteria in either the old or new regulations, the medical evidence indicates that the veteran has not been able to sustain employment due to his service-connected psychiatric disorder. The veteran's last employer noted that the veteran worked part-time performing clerical work but was terminated because he did not work well with others and missed too many days due to depression. Such is sufficient to warrant assignment of a 100 percent evaluation under the old diagnostic criteria, consistent with the Court's holding in Johnson. Accordingly, for the reasons discussed above, and resolving the benefit of the doubt in the veteran's favor, the criteria for a 100 percent schedular evaluation for major affective disorder, depression, under the rating schedule in effect prior to November 7, 1996, have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.132, Diagnostic Code 9405 (1996). II. Seizure Disorder Service connection for a seizure disorder was granted by a rating decision dated in April 1981. The RO determined that service connection for this disorder was based upon aggravation rather than upon service incurrence, and therefore the RO considered only the degree of disability over and above the degree existing at the time of entrance into active service. See 38 C.F.R. § 4.22 (1999); see also Hensley v. Brown, 5 Vet. App. 155 (1993). At that time, the RO determined that the degree of disability of the veteran's seizure disorder was 40 percent, in terms of the rating schedule, and at the time of service entrance, the degree of disability was 20 percent. Accordingly, the RO applied a rating deduction of 20 percent and a 20 percent disability rating was assigned, effective the day following service discharge. Id.; see also 38 C.F.R. § 3.400 (1999). As the veteran did not appeal this rating decision, application of the rating deduction is final. 38 U.S.C.A. § 7105 (West 1991). While in service, the veteran underwent a Physical Evaluation Board in November 1980, that found a seizure disorder that had existed prior to service entrance, with service aggravation. Prior to service entrance, a history of "blackouts" were reported, with one episode of a "seizure- like" occurrence. While at basic training, the veteran had four to five episodes of "blacking out" which were attributed to heat exhaustion and dehydration. In July 1980, the veteran had a tonic-clonic seizure. A computerized tomography scan and electroencephalogram were normal. The diagnosis was grand mal seizure disorder. Subsequent to service discharge, the veteran continued to have episodes that consisted of 30 to 60 minutes of suboccipital throbbing headaches radiating forward to either temple followed by a feeling of weakness and occasionally the smelling of smoke, after which he would lose consciousness for a period of 3 to 4 minutes. Witnesses to the episodes stated that he had tremors but no tonic-clonic movements. The veteran reported that he never had urinary incontinence or tongue biting with his attacks. When he regained consciousness, he stated he might be sleepy for a period of up to 8 hours, but the headaches were relieved. At a VA examination conducted in October 1984, the veteran reported the frequency of these episodes as two or three per month. It was noted that the veteran's seizures were treated with medication. VA outpatient treatment records in 1986 reported an increase in frequency of the seizures and the veteran's medication was changed. A VA hospital report dated in December 1989, reported that the veteran discontinued his medication for seizures approximately 18 months prior to admission due to the absence of seizures. Since that time he stated that he had 8 to 10 seizures a month. A computerized tomography scan and electroencephalogram were normal. The diagnoses included seizure disorder. Based on this evidence, a 40 percent disability evaluation was assigned for the veteran's service-connected seizure disorder by a rating action dated in January 1990. A VA examination conducted in 1991, reported the veteran had a tonic-clonic seizure disorder, and had a seizure 3 weeks prior to the examination. A VA hospital report dated in 1996, reported that the veteran's seizure disorder was stable on medication. Thereafter, a VA examination conducted in October 1996, reported that the veteran's seizures consisted of his eyes rolling back with pupils dilated, violent aggressive behavior and all over body shaking, with no incontinence, but with tongue biting. The veteran also reported a different morphological seizure manifested by a few seconds of staring. The frequency of the episodes was reported as once a month, with the larger, more violent seizures, lasting from 1 minute to 11/2 hours. The veteran reported an aura with an obnoxious smell, lightheadedness, and headache. Post ictal lethargic confusion was also reported. An electroencephalogram was normal; however, a magnetic resonance imaging scan found mild enlargement of the temporal horns which implied some hippocampal atrophy. The diagnosis was possible complex partial seizure disorder. The rating criteria for seizure disorders, set forth under 38 C.F.R. § 4.124a, Diagnostic Codes 8910 (grand mal epilepsy) and 8911 (petit mal epilepsy), are as follows: a 100 percent evaluation is warranted for 12 major seizures during the preceding year; an 80 percent evaluation is warranted for 4 major seizures, or more than 10 minor seizures weekly, during the preceding year; a 60 percent evaluation is warranted for 3 major seizures, or 9 to 10 minor seizures weekly, during the preceding year; a 40 percent evaluation is warranted for 1 major seizure during the preceding 6 months or 2 major seizures, or 5 to 8 minor seizures weekly, during the preceding year; a 20 percent evaluation is warranted for 1 major seizure during the preceding 2 years or 2 minor seizures during the preceding 6 months; and a 10 percent evaluation is warranted for a confirmed diagnosis of epilepsy with a history of seizures. 38 C.F.R. § 4.124a (1999). Notes to the aforementioned regulation describe major seizures as generalized tonic-clonic convulsions accompanied by unconsciousness; minor seizures are described as brief interruptions in consciousness or conscious control associated with staring or rhythmic blinking of the eyes, nodding of the head, sudden loss of postural control, or sudden jerking of the arms, trunk, or head. Id. at Notes (1)(2). The frequency and nature of seizures may be established by competent, consistent lay testimony emphasizing convulsive and immediate postconvulsive symptomatology. Evidence of the foregoing must be presented in order to warrant a change in an evaluation for a seizure disorder. As noted above, where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco, 7 Vet. App. at 58. In this case, the most recent medical evidence of record is a VA examination conducted in March 1999. The examiner noted that the medication provided fair control of the veteran's seizures. The veteran described his seizures as episodes of behavior or speech arrest, lasting seconds to minutes, resolving gradually with return to baseline function. He reported that he did not lose consciousness or fall during these episodes and there was no tonic-clonic activity, to include bowel or bladder incontinence. He stated that the frequency of these episodes were in clusters; he reported that he would not have seizures for several months and then have a period of 2 to three seizures per month. The diagnosis was convulsions consistent with complex partial seizure disorder. Based on the above evidence, an increased rating for the veteran's service-connected seizure disorder is not warranted. There is no evidence of record, to include medical or lay evidence, that the veteran has had 3 or more major seizures per year or 9 or more minor seizures weekly. Accordingly, a rating in excess of 40 percent for a seizure disorder is not for assignment. ORDER A 100 percent disability evaluation for major affective disorder, depression, is granted, subject to the laws and regulations governing the payment of monetary benefits. A rating in excess of 40 percent for a seizure disorder is denied. C. P. RUSSELL Member, Board of Veterans' Appeals