BVA9508269 DOCKET NO. 93-13 062 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an increased evaluation for a generalized anxiety disorder, currently rated 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Deborah W. Singleton, Counsel INTRODUCTION The veteran served on active duty from October 1942 to July 1943. This appeal arises from a rating decision dated in September 1992 by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board observes that the veteran's representative has made reference to the issue of entitlement to service connection for a conversion disorder. This matter, however, has not been properly developed for appellate review and it is referred to the attention of the RO for further consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to an increased evaluation for his service-connected anxiety disorder. He maintains that he is unable to sleep, eat, or walk, and that he has been hospitalized and treated for his generalized anxiety disorder at VA medical facilities. 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 record supports an increased evaluation of 50 percent for a generalized anxiety disorder. FINDING OF FACT Generalized anxiety disorder is productive of considerable social and industrial impairment. CONCLUSION OF LAW Resolving reasonable doubt in favor of the veteran, the criteria for a 50 percent evaluation for a generalized anxiety disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.132, Diagnostic Code 9400 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he is found to have presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). Factual Background In November 1946, service connection for a psychoneurosis, anxiety state, was awarded, and a 10 percent disability evaluation was assigned. In November 1989, a 30 percent evaluation was assigned, and the diagnosis was changed to generalized anxiety disorder. The claims file contains reports of substantial treatment pertaining to the veteran's inpatient and outpatient care during service and by VA for his psychiatric disability. Among the records is a July 1943 report of medical survey indicating that the veteran was administratively discharged from active duty with a diagnosis of "constitutional psychotic state, emotional instability." A VA psychiatric examination was conducted in July 1944, at which time the diagnoses also included a psychoneurosis, anxiety state. VA medical records dated between August 1987 and November 1988 reflect that the veteran received regular outpatient psychiatric treatment for disorders which included a generalized anxiety disorder, severe anxiety, depression, a dysthymic disorder, and a schizophrenic disorder. A VA discharge summary dated in February 1989 reflects that the veteran was hospitalized and treated for a possible psychosis. At that time, the veteran was presented with his family stating that the veteran had been hallucinating, and that he had a change in his behavior. A history of service connection for an "anxiety neurosis" was noted. Psychiatric evaluation revealed the veteran to be extremely manicky, paranoid and delusional in his thinking, particularly with a somatization-type background. It was noted that, initially, he talked almost non-stop. The veteran was diagnosed as having a schizo-affective disorder, although the examiner surmised that the veteran had some signs of schizophrenia. The examiner explained that because the veteran's past medical history was unknown, the diagnosis was based on a history of his present illness. Upon discharge several days later, the veteran was reported to be psychiatrically stable. In October 1989, the veteran was afforded a VA Fee Basis psychiatric consultation. The veteran related a history of VA hospitalizations for psychiatric treatment in 1965 and 1989, respectively. The veteran's hobbies included cooking and walking, and he noted occasionally attending "DAV" and "VFW" meetings. Mental status examination revealed the veteran to be cooperative and oriented in all three spheres. His eye contact was good, and his speech was relevant and coherent. He showed difficulty concentrating when he was asked to perform serial sevens. His short-term and long-term memory were noted as impaired. His abstract thought was intact. The veteran related that he had sometimes trouble falling asleep, noting that he averaged about 6 or 7 hours of sleep per night. His appetite was reported as fair with some indication of weight loss in the past few months. The veteran appeared very anxious and fidgety. Fine tremors were detected in the his hands. He denied suicidal ideation. He admitted that he used to hear people talking, i.e., a "sort of a mumbling sound," but related that he had not heard that sound since 8 years previously. He recalled a 1987 incident of something white standing in his bedroom which caused him to cover his head because he was scared. He related that he was later told by his wife that it was her who had stood in his room. He expressed, however, some reservation as to whether he believed his wife. The examiner noted that the veteran had a fairly good insight and judgment into the nature of his problem, and concluded the veteran's symptoms were consistent with the diagnosis of a generalized anxiety disorder. Extensive VA medical records dated between May 1990 and June 1992 indicate that the veteran received regular, approximately monthly treatment and medication for his anxiety disorder. These treatment records collectively show that the veteran complained of "extreme" anxiety, nervousness, dizziness, difficulty sleeping, abnormal movements in his lower extremities, and intermittent periods of sadness. Mental status examinations conducted during these treatment sessions consistently revealed the veteran to be alert, oriented and cooperative. His speech was relevant and coherent. His mood was noted as anxious, dysphoric and euthymic. His affect was generally noted as broad. The veteran's sleeping and eating habits were generally reported as good. The prevailing assessment was an anxiety neurosis. A prior history of schizo-affective and seizure disorders was also noted. VA conducted a psychiatric examination of the veteran in January 1993. He stated that he avoided crowds and noises, and he found that he would often become very panicky, restless, fidgety, and would experience a smothering sensation. His feet and hands were also described by the veteran as restless. He related additional symptoms which included clammy hands, sweatiness, dizziness, irritability, and jumpiness. The examiner felt that these symptoms were a part of the veteran's psychological profile which he had during and possibly before entering military service. On mental examination the veteran was fully oriented, cooperative and polite, but he was extremely restless. His level of intellectual functioning was estimated as average. His speech was fluid, logical, and coherent. His mood was anxious with psychological indicators of general restlessness. His affect was constricted. His appetite was fair, but his sleep pattern was noted as interrupted. His insight and judgment, as well as his interpersonal relationships, were found to be fair. The primary diagnosis was a generalized anxiety disorder. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1994). A 30 percent evaluation is warranted for a generalized anxiety disorder when there is a definite impairment in the ability to establish or maintain effective and wholesome relationships with people and when the psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. A 50 percent evaluation requires that the ability to establish or maintain effective or favorable relationships with people be considerably impaired and that reliability, flexibility, and efficiency levels be so reduced by reason of psychoneurotic symptoms as to result in considerable impairment. 38 C.F.R. § 4.132, Diagnostic Code 9400. In Hood v. Brown, 4 Vet.App. 301, 303 (1993), the United States Court of Veterans Appeals held that the term "definite," as used in 38 C.F.R. § 4.132 to describe a 30 percent evaluation for certain mental disorder, is qualitative whereas the other terms in the rating schedule for psychiatric disorders are quantitative. See also Romeo v. Brown, 5 Vet.App. 388, 396 (1993). In a precedent opinion the VA General Counsel held that the word "definite" as used in 38 C.F.R. § 4.132 should be construed to mean distinct, unambiguous and moderately large in degree, more than moderate but less than rather large. VA O.G.C. Prec. Op. 9-93, 59 Fed. Reg. 4752 (1994). In this case, the Board observes that the evidence of record demonstrates that the veteran's disability picture for his service-connected generalized anxiety disorder, although currently evaluated as 30 percent disabling, more nearly approximates the criteria required for a 50 percent rating. 38 C.F.R. §§ 4.7, 4.132, Diagnostic Code 9400. In this regard, the records reflect that the veteran suffers from periodic "extreme" anxiety, nervousness, depression, dizziness, sleeplessness, abnormal movement of the lower extremities, and intermittent periods of sadness, all of which have been recognized by VA examiners in clinical settings. Moreover, the record is replete with evidence showing that the veteran has required regular, ongoing VA outpatient treatment and medication for his service-connected psychiatric disability. VA psychiatric examinations, dated between 1989 and 1992, have essentially found that the veteran has an anxious mood, a constricted affect, coherent speech, and only fair insight. These examination reports have also shown that the veteran's anxiety disorder is controlled with medication. On VA examination conducted in February 1993, however, the veteran's psychiatric disorder was characterized by difficulty sleeping, avoidance of crowds and noises, and episodes of extreme restlessness and anxiousness. In light of all of the foregoing, particularly the veteran’s continuing need for regular mental health care, the Board finds that there is a question whether the 30 percent or the 50 percent evaluation most accurately reflects the degree of disablement. Accordingly, after resolving reasonable doubt in the veteran’s favor the Board concludes that the evidence more nearly approximates a disability picture which demonstrates considerable social and industrial impairment. Accordingly, a 50 percent evaluation for the veteran's service-connected generalized anxiety disorder under diagnostic code 9400 is warranted. Although the evidence raised a question as to whether a 30 or a 50 percent evaluation is warranted, the preponderance of the evidence undeniably is against a rating in excess of 50 percent. In this regard, a 70 percent evaluation requires evidence of severe social and industrial inadaptability. 38 C.F.R. § 4.132, Diagnostic Code 9400. As the foregoing clinical record shows, the evidence demonstrates that the veteran’s service connected psychiatric disorder is not more than considerable in degree. The Board considered that an extraschedular evaluation may be granted if the veteran's disorder presents an exceptional or unusual disability picture with such related factors as marked interference with the veteran's employment or frequent periods of hospitalizations. In this respect, while the Board acknowledges that the veteran has been unemployed since 1970, the record does not disclose any evidence of such factors as marked interference with the veteran's past employment opportunities, or frequent periods of hospitalizations due to his service-connected generalized anxiety disorder. Therefore, the Board concludes that an extraschedular evaluation under 38 C.F.R. § 3.321(b) is not warranted. ORDER A 50 percent rating for a generalized anxiety disorder is granted, subject to controlling regulations governing the payment of monetary awards. DEREK R. BROWN 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.