BVA9504044 DOCKET NO. 92-04 434 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased rating for anxiety neurosis with depressive features and hypochondriasis, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. M. Lynch, Associate Counsel INTRODUCTION The veteran served on active duty from March 1944 to October 1944. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana which continued a 30 percent rating for an anxiety disorder which had been in effect since October 1976. The case was previously before the Board in April 1993, when it was remanded to the RO for additional medical records, a social and industrial survey, examination of the veteran and adjudicative action. The requested action has been completed. The Board now proceeds with its review of the appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO committed error in denying his claim of entitlement to an increased rating for an anxiety disorder. He asserts that his service-connected disability is more severely disabling than currently evaluated. Specifically, he states that he experiences severe headaches which awaken him during the night, problems with balance and staggering, anxiety and insomnia. Consequently, he contends that he is entitled to an increased disability rating. 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 preponderance of the evidence supports the assignment of a 50 percent rating for anxiety neurosis with depressive features and hypochondriasis. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's anxiety disorder is manifested by severe headaches which awaken him during the night, problems with balance and staggering, anxiety and insomnia. 3. The veteran's service-connected anxiety disorder is manifested by symptoms and objective findings indicative of considerable social and industrial impairment. 4. The veteran's service connected disability does not present an exceptional or unusual disability picture rendering impracticable the application of the regular schedular standards that would have warranted referral of the case to the Director of the Compensation and Pension Service. CONCLUSIONS OF LAW 1. The criteria for a 50 percent disability rating for an anxiety disorder, but not higher, have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Code 9400 (1994). 2. Failure of the RO to consider or document its consideration of an extraschedular rating and the failure to refer the case to the Director of the Compensation and Pension Service is no more than harmless error. 38 C.F.R. § 3.321(b)(1) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is to say that he has presented a claim which is plausible. VA has assisted the veteran as much as it can in the development of his claim. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such injuries in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1994). The severity of a psychiatric disability is based upon actual symptomatology as it affects social and industrial impairment. The principle of social and industrial inadaptability as the basic criterion for rating disability from the mental disorders contemplates those abnormalities of conduct, judgment, and emotional reactions which affect economic adjustment, that is, which produce impairment of earning capacity. The objective findings and the examiner's analysis of the symptomatology are the essentials. However, the examiner's classification of the disease as "mild", "moderate", or "severe" is not determinative of the degree of the disability, but the report and the analysis of the symptomatology and the full consideration of the whole history by the rating agency will be. Ratings are to be assigned which represent the impairment of social and industrial adaptability based on all the evidence of record. 38 C.F.R. §§ 4.129, 4.130 (1994). The current 30 percent evaluation in effect for the veteran's service-connected anxiety disorder contemplates definite impairment of social and industrial adaptability. To receive a higher evaluation of 50 percent, the evidence must show considerable impairment of social and industrial adaptability. 38 C.F.R. Part 4 Code 9400 (1994). In Hood v. Brown, 4 Vet.App. 301 (1993), the United States Court of Veterans Appeals stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other terms were "quantitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment for the purposes of meeting the statutory requirement that the Board articulate "reasons and bases" for it decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a precedent opinion, dated November 9, 1993, the General Counsel of VA concluded that the term "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." O.G.C. Prec. 9-93 (Nov. 9, 1993). The Board is bound by this interpretation of the term "definite." 38 U.S.C. § 7104(C) (West 1991). 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). In this particular case, the findings from the veteran's most recent examination and medical treatment records show a disability picture which would approximate the criteria for an evaluation of 50 percent under Code 9400, but not higher. In making the determination herein, the Board has reviewed the veteran's medical history. 38 C.F.R. §§ 4.1, 4.2 (1994). Service medical records dated in September 1944 indicate that he complained of severe epigastric pain following the ingestion of food. He was diagnosed as having neurosis, intestinal, and subsequently discharged from service by reason of physical disability. In a rating decision in October 1944, the RO granted service connection for psychoneurosis, neurasthenic type and assigned a 10 percent rating, effective October 1944. In September 1945, the veteran underwent a VA examination. He complained of nerves, excitability, poor sleep, stomach cramps, nausea, periodic severe headaches in his temples, and of becoming angry and upset easily. The examiner reported that he was introspective and hypochondriacal. He was diagnosed as having psychoneurosis, neurasthenia, hypochondriacal type. In November 1945, the RO reduced the veteran's rating to noncompensable, effective January 1946. The record reflects that the veteran received treatment for sub- occipital headaches and poor sleep in August 1971 secondary to his "nerves". He was subsequently hospitalized for evaluation and control of symptoms of vertigo in January 1975. He also complained of headaches, nausea and difficulty maintaining his equilibrium. Physical evaluation was essentially within normal limits. He was treated with medication. The noncompensable rating remained in effect until September 1975, when it was restored to 10 percent on the basis of an August 1975 VA examination. On examination in August 1975, the veteran complained of terrible headaches that awakened him during the night, tremors and staggering. The examiner diagnosed anxiety reaction with hysterical components, moderate in degree. The veteran underwent a VA examination in December 1976. He described his nervousness as a sensation as if his whole body was shaking inside and gave a history of daily suboccipital headaches for the past 15 years, which were worse at night. He also complained of initial insomnia and depression. It was noted that he stopped working as a carpenter in January 1973 primarily because of his nervous condition. The examiner diagnosed anxiety neurosis with depressive features, chronic, moderately severe, manifested by marked diffuse anxiety, moderate reactive depression, tension headaches, irritability, and sleep disturbance. It was noted that the degree of industrial impairment was moderately severe and the degree of social impairment was moderate. The prognosis was that the psychiatric disability would continue to follow a chronic course without substantial improvement. On the basis of the findings of the December 1976 examination, the 10 percent rating was increased to 30 percent in March 1977, effective October 1976. The record reflects that the veteran continued to receive treatment for his condition through September 1979. Various reports of treatment from a fee basis examiner, Gillis Morin, M.D., diagnosed him as having mixed anxiety and depressive reaction. Significantly, it was Dr. Morin's opinion that the veteran's condition was on a downhill course and that he would not be able to return to any type of employment. A report of hospitalization from the VA hospital in Houston, Texas dated in June 1978 indicates that the veteran was hospitalized for evaluation of his condition. He stated that he was no longer able to work as a carpenter due to increased nervousness and incapacitating headaches. Laboratory work and x- rays revealed no significant abnormalities. An electroencephalogram (EEG) was within normal limits, with the exception of fast activity related to medication. On the basis of the foregoing evidence, the RO confirmed the 30 percent rating in October 1979. The Board affirmed the RO's action in its decision of May 1980. Thereafter, in support of his claim the veteran submitted VA outpatient treatment notes dated from May 1980 to May 1982. He was treated on a routine basis for his nervous condition. Complaints included severe headaches which awaken him during the night, problems with balance and staggering, anxiety and insomnia. He was treated with medication, but reported little relief from his symptoms. Objective examination findings were essentially normal. He was diagnosed as having a generalized anxiety disorder. Also of record are VA outpatient treatment notes dated from October 1977 to September 1988. The record reflects that he continued to receive treatment for his condition on a routine basis. His symptoms and diagnoses are concordant with those described above. There were sporadic exacerbations of his symptoms noted in the record. The record indicates that the veteran was hospitalized at Lake Charles Memorial Hospital in approximately June 1991 for complaints of headaches, dizziness, and fainting-like spells. A letter from Fayez Shamieh, M.D. reported that the veteran had complete investigative studies, including computerized tomography (CT) scan of the brain, EEG, and ultrasound of the carotids, all of which were unrevealing. The physician's impression was vertebrobasilar insufficiency and headaches secondary to anxiety and stress. Pursuant to the Board's remand in April 1993, the veteran provided additional VA outpatient treatment notes dated from May 1988 to June 1993 which revealed that he continued with routine treatment approximately every three months. Once again, his symptoms and diagnoses were consistent. The report of the December 1993 social and industrial survey revealed that the veteran was an 80 year old retired carpenter. He reported being married to his wife for 57 years. He stated that his condition caused him to say things to his wife that were hurtful and unkind. He claimed that he tried to avoid people because his anxiety reaction often caused him to say and do things that made others dislike him. He also reported that his anxiety and neurosis with depression made it difficult for others to work with him. The social worker noted that the veteran saw doctors for his anxiety, nerves and depression on a regular basis. The veteran stated that if a doctor was late for an appointment, his anxiety and nerves became so bad that he would leave. The veteran's wife was also interviewed. She stated that the veteran took his medication as prescribed but continued to suffer from anxiety neurosis with depression. She also corroborated his statements with respect to his condition and actions. The social worker also interviewed the husband of the veteran's niece, who further corroborated the veteran's actions with respect to being critical of others. He reported knowing the veteran for 45 years, and often driving him to the VA clinic for his appointments. He stated that if he was not married to the veteran's niece, he would walk away from him as he is unreasonable in how quickly he wants things done. He also reported that at times he became very angry over nothing. The veteran's nephew was also interviewed. He reported that he generally saw the veteran several times a week and drove him to the VA clinic, as well as ran errands for him because he did not like to see him drive due to his condition. He stated that his condition caused him to have little patience and be an unsafe driver. He also reported that the veteran was a very nervous and outspoken person. He stated that the condition became so bad at times that the veteran could not walk in a straight line and would not leave his home or yard because he did not want to be around people. The veteran was also afforded a VA examination in March 1994. On neurological examination, he complained of dizzy spells and described an incident when he awakened with total blindness in his left eye which lasted for a few seconds. He stated that when his nerves got bad, he experienced dizzy spells which caused him to stagger. There was no true vertigo associated with the dizzy spells. He reported that he felt nauseated, but there was no emesis. There was no diplopia or blurred vision, although he reported blurry vision at times. He also denied focal weakness, emesis and numbness associated with dizzy spells. He reported that his wife noticed that he had difficulty speaking during his dizzy spells. He stated that such spells can last for one day, and occur one to two times per week. It was also noted that he became dizzy with any posture and while doing any kind of work. He reported that sitting down gave him relief. If the spells were not too bad, he stated that he could continue with light house work and did not have to sit or lie down. The examiner reported that the veteran was alert and oriented. Cranial nerves were two through twelve were intact, although nerve eight was not tested in detail. Motor examination revealed flexion contracture of the left ring finger, status post surgery in left palm. Muscle mass, strength and tone were normal in both the upper and lower extremities. There was no pronator drift or lagging of any extremity noted. Deep tendon reflexes were not obtainable as the veteran was not relaxed. Sensory examination was remarkable for moderately impaired vibration at the feet. Otherwise, pinprick position sensation was intact bilaterally. Cerebellar examination revealed that there was no dysmetria on finger nose test. However, there was minimal dysmetria on heel to shin test bilaterally, more so on the left as compared to the right. Gait and station showed no trunkal ataxia. Gait was not wide-based. He was able to walk on heels and toes with little difficulty, but was unable to walk tandem gait as he became ataxic. The examiner concluded that the veteran's intermittent dizzy spells were not typical of vertigo basilar insufficiency but consisted mainly of a problem with balance and coordination. Considering the above findings, cerebellar disease was ruled out. The veteran also underwent a psychiatric examination. He stated that his nerves were bad and that occasionally when he awakened in the morning, he had to crawl to the utility room to get his crutches so that he could stand. He gave a history of a terrible memory, which was worsening, and stated that he was never very smart. The examiner noted that he was eager to leave the psychiatric clinic in order to find out what brain disease he had. He terminated the interview quickly in order to speak with the neurologist. The examiner indicated that he brought a brain scan report from Lake Charles Memorial Hospital which showed some degree of cerebral atrophy. On mental status examination, he was alert and oriented, but appeared restless. His mood was reported as nervous. His affect was tense and thought process was goal directed. Importantly, his judgment and insight appeared to be poor. The examiner diagnosed generalized anxiety disorder and hypochondriasis and concluded that his social and industrial adaptability were moderately impaired. Significantly, it was noted that if he were working, he would miss a lot of work secondary to extra tests and doctor visits. After careful review of the evidence, the Board finds that the entire record could reasonably be interpreted as showing an anxiety disorder which produces a considerable degree of impairment warranting the next higher rating, 50 percent. 38 C.F.R. § 4.7 (1994). While the veteran has not required recent inpatient care, he has required regular therapy at the local VA clinic. His symptomatology has played a significant role in his life since his discharge from service. Furthermore, on recent VA examination his judgment and insight were described as poor. The examiner also indicated that if he were employed, he would miss a lot of work due to his disorder. In addition, the report of the social and industrial survey indicated that if a doctor was late for an appointment, the veteran's anxiety and nerves became so bad that he would leave. It is also important to note that his disorder causes him to be highly critical of others and affects his social relationships. Therefore, the preponderance of the evidence shows that the anxiety disorder affects the his judgment, insight, flexibility and efficiency levels so as to produce considerable social and industrial impairment. The next higher evaluation of 70 percent requires a demonstration of severe social and industrial impairment. This has not been shown by the evidence of record. This case does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1)(1994). Any failure of the RO to refer the case to the Director of the Compensation and Pension Service for extraschedular consideration was harmless error. ORDER Entitlement to an increased rating of 50 percent, but not higher, for anxiety neurosis with depressive features and hypochondriasis is allowed as indicated above subject to the laws and regulations governing the payment of monetary awards. JAN DONSBACH 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.