BVA9507207 DOCKET NO. 92-01 224 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to an increased (compensable) evaluation for generalized anxiety disorder. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Robert P. Regan, Counsel INTRODUCTION The appellant served on active duty from July 1970 to July 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1988 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied him a compensable rating for his service-connected nervous disability. CONTENTIONS OF APPELLANT ON APPEAL The appellant maintains that the RO erred in not granting the benefit sought. The appellant states that his nervous condition has worsened. He reports that he feels anxious almost all the time while at work and had to be counseled on several occasions by his supervisor with regard to his aggressiveness toward his fellow workers. He reports he is in a constant state of tension at work, as if something was going to happen. This hinders his ability to concentrate. He states that he is afraid he could hurt somebody, including his family. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material in the appellant's claims file, and for the following reasons and bases, it is the decision of the Board that the evidence supports the appellant's claim of entitlement to an increased evaluation of 30 percent for his service-connected psychoneurosis. FINDINGS OF FACT 1. The appellant's psychoneurosis, currently diagnosed as a depressive disorder, is productive of more than moderate, but less than rather large social and industrial impairment. 2. The psychoneurosis, currently diagnosed as a depressive disorder, does not result in marked interference in employment nor does it require frequent periods of hospitalization. CONCLUSION OF LAW The schedular criteria for a 30 percent evaluation for a psychoneurosis, currently diagnosed as a depressive disorder, have been met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.7, Part 4, Diagnostic Code 9400 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board has found that the appellant's claim is well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991) in that his claim is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). This finding is based, in part, on the appellant's assertion that his service- connected psychiatric disorder has increased in severity. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). Once it has been determined that a claim is well grounded, VA has a statutory duty to assist the appellant in the development of evidence pertinent to that claim. In this regard, this case was previously before the Board in September 1992, at which time the case was remanded to the RO for additional development of the evidence, to include an examination by a board of VA psychiatrists. This development has been completed. The Board is satisfied that all relevant evidence is of record and the statutory duty to assist the appellant has been met. The RO has assigned a zero percent evaluation for the appellant's psychoneurosis in accordance with the criteria set forth in the VA's Schedule for Rating Disabilities, Diagnostic Code 9400. 38 C.F.R. Part 4 (1994). Diagnostic Code 9400 provides for the evaluation of a generalized anxiety disorder. Diagnostic Code 9405 provides for the evaluation of dysthymic disorder; adjustment disorder with depressed mood; and major depression without melancholy. In accordance with the aforementioned rating schedule, these disabilities are evaluated under a general rating formula for psychoneurotic disorders. This formula provides a zero percent evaluation for neurotic symptoms which may somewhat adversely affect relationships with others, but which do not cause impairment of working ability. When there is less than the criteria for 30 percent, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment, a rating of 10 percent is provided. When there is definite impairment in the ability to establish or maintain effective or wholesome relationships with people and the psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment, a rating of 30 percent is provided. When the ability to establish or maintain effective or favorable relationships with people is considerably impaired and by reason of psychoneurotic symptoms, the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment, a rating of 50 percent is provided. 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 (1993) was "qualitative" in character, whereas the other terms therein were "quantitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate "reasons or bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a Precedent Opinion, dated November 9, 1993, the General Counsel of the VA concluded that "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." VA O.G.C. Prec. 9-93 (Nov. 9, 1993). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c) (West 1991). A review of the record reflects that, while on active duty, the appellant was seen at the dispensary in October 1972 complaining of nervousness. He indicated that he had the shakes and insomnia and had returned from Vietnam the prior August. At the time of the service separation medical examination, he gave a history of having or having had difficulty sleeping, depression or excessive worry. He also reported insomnia. His psychiatric status was clinically evaluated as normal. A VA psychiatric evaluation was performed in November 1973. The examination showed the appellant had a fine tremor of his stretched fingers. His facies was preoccupied. Production of thought was realistic. Flow of ideas was mildly retarded. His answers were coherent, relevant and rather scanty. Content of thought was that he revealed few signs and symptoms of anxiety. He complained of insomnia, and terrible nightmares. He became upset because his son started to cry. His affect was adequate. His general mood was mild, free-floating, anxiety. He was oriented in time, place and person. Memory was described as good. His ability to concentrate on abstract matters was fairly poor. Mental concentration was almost good. Fund of information was somewhat adequate. Judgment was superficial. Insight was superficial. The diagnosis was anxiety neurosis, mild. In January 1974 the RO granted entitlement to service connection for anxiety reaction and assigned a zero percent evaluation. Subsequently received was a VA outpatient report, dated in August 1973, which shows that the appellant was seen for psychiatric complaints, including nightmares, insomnia and hearing voices. The impression was rule out unspecified psychosis. Beginning in September 1986, the appellant received intermittent treatment, including several periods of hospitalization, at a VA medical facility for his psychiatric disorder. He was hospitalized in September 1986 for poor impulse control, having fights with his fellow workers and with his wife. He also reported hearing voices calling his name. The occupational history revealed that the appellant had been employed at the lottery agency since approximately 1978. He reported insomnia, restlessness, and nightmares. While hospitalized the appellant was treated with medications. He was discharged in October 1986 with a diagnosis of schizophrenia, chronic, undifferentiated type and episodic alcohol dependence. At the time of his hospital discharge it was reported that his symptoms were in remission and he was able to return to work. He received intermittent followup treatment at a VA medical hygiene clinic. Of record is a December 1987 memorandum from the chief of the psychiatry service of a VA medical facility, regarding the appellant's correct psychiatric diagnosis After reviewing the record, it was remarked that the appellant was service connected for an anxiety reaction and it was not considered that the initial diagnosis was in conflict with a more severe psychopathology. There was insufficient evidence to warrant a diagnosis of chronic schizophrenia. There was also a diagnosis of alcohol dependence, episodic and symptoms described are complicated by the use of alcohol. The appellant was hospitalized at a VA facility in September 1988 due to self-harm ideas and fears of losing control impulses. The appellant responded to therapy, including medications and was discharged from the hospital later in September 1988 with a psychiatric diagnosis of schizophrenia, chronic, undifferentiated type and alcohol, episodic. It was further reported that the stressors were unverified and the highest level of adaptive functioning for the prior year was poor. The appellant was to be followed up at the VA mental health clinic. A hearing was held at the regional office in January 1989. At the time the appellant testified that he had been employed by the lottery since 1980. He stated that he had used all his sick leave and vacation time due to being absent from work because of his psychiatric problem. The appellant stated that he wakes and he fears he will not be able to handle the responsibility of his job and if he goes to work he will have problems with his co- workers. He described his symptoms as being irritable and aggressive. He was employed in a window where the lottery tickets were given to the salespersons. The appellant indicated that he had a total of yearly leave of 45 days which was used up. He stated that he has problems with his neighbors. His neighbors know about his condition and ignore his behavior, perhaps fearing to irritate me. His wife testified with regard to the appellant's anger and temper. She indicated that he had struck the children, but had never struck her. Submitted into the record in conjunction with the hearing were several statements from the appellant's employer, dated in 1988 and 1989, which are to the effect that the appellant had been hospitalized and as of December 31, 1988, he had used all accrued regular annual and sick leave. The appellant was hospitalized at a VA facility in October 1989 due to irritability with bouts of rage and fears of harming his family. The appellant was able to hold a job. On admission the appellant was described as being logical, coherent, relevant and spontaneous. He was not delusional, suicidal, homicidal. His judgment and insight were good. Memory and intellect abilities were described as good. His mood and affect were described as mildly anxious, but appropriate. The appellant was treated with individual and occupational therapy. Prior to discharge, a toxicology report was positive for cocaine. The appellant was given an irregular discharge. The diagnosis was depression, not otherwise specified, with psychotic features, sporadic use of cocaine, and alcohol dependence, episodic, intermittent explosive disorder. Of record is a memorandum from the chief of the psychiatry service of a VA medical facility dated in November 1989 which is to the effect that the appellant had been diagnosed with chronic schizophrenia. However, an examination of the clinical symptoms when viewed with available information, does not support that diagnosis. The appellant was described as having severe symptomatology suggestive of a severe anxiety disorder. The appellant was hospitalized at a VA facility in November 1990 for feeling anxious and irritable. The appellant was being followed at the VA mental hygiene clinic. On admission his memory was described as good. He was logical, coherent, relevant with no hallucinations or delusions. His affect was depressed and his mood was sad. His memory was intact and he was oriented in time, place and person. He had poor judgment and superficial insight. He was not suicidal or homicidal. The appellant responded to treatment and was discharged. The discharge diagnosis was major depression with psychotic features, and cocaine abuse in remission. His highest level of adaptive functioning for the prior year was described as poor. A VA psychiatric evaluation for compensation purposes was performed in July 1991. At that time it was reported that the appellant had worked for the past 10 years for the lottery of Puerto Rico. He complained of episodes in which he became aggressive, irritable and had difficulty dealing with people, etc. He reported nightmares, a sense of uneasiness, restlessness and problems with his wife. The appellant denied any current drug use. He was married, and had three children. The mental status evaluation in July 1991 showed that the appellant carried himself with appropriate posture and gait. He looked to be in good contact. He spoke coherently and relevantly. There was a strong, monotonous and quite evasive attitude. The conversation was coherent and relevant. There were no thought disorders detected. There were no perceptive disorders found. The history revealed that basically a floating anxiety predominated. There was some tendency to manipulate. He was oriented in time, place and person. His memory was preserved. Retention, recall and sensorium were all clear. There were no depressive signs found. He seemed to tolerate little. The diagnosis was generalized anxiety disorder; substance abuse disorder: Alcohol dependence and cocaine abuse by history, in remission. Stressors were not determined. His highest level of adaptive functioning in the prior year was described as fair. The appellant was hospitalized at a VA facility in November 1991, with a history of major depression with psychotic features and cocaine abuse. The appellant indicated that 2 to 3 weeks prior to admission his son brought a girl friend and a baby to live with the appellant's family. He described this as a high stressor which has caused him to increase the use of cocaine. He felt depressed, having nightmares, hearing murmurs, being very irritable and quarrelsome. Mental status evaluation showed that the appellant was logical, coherent and relevant with no perceptual disturbances, dysthymic mood and affect. He was not suicidal nor homicidal. His judgment was fair and his insight was fair. While on the open ward, he expressed feelings of depression and of hearing voices and having nightmares. He responded well to therapy. He was discharged in December 1991 with diagnoses of depression, not otherwise specified; and cocaine abuse, continuous. It was further reported that the global assessment of functioning was 80 for the past year and 70 for the current year (from the APA Diagnostic and Statistical Manual of Mental Disorders, 3rd. ed. rev.). The hospital summary also proved an interpretation of these numerical codes. Codes 71 through 80 are assigned if symptoms are present, they are transient and expectable reactions to psychosocial stressors. Codes 61 through 70 are assigned when there are some mild symptoms or some difficulty in social occupation or school functioning. The severity of the psychosocial stressor was ascertained as three which is interpreted as being moderate. The appellant continued to receive treatment at a VA outpatient mental health clinic. When seen in August 1992, the appellant reported that he was in total remission from the use of illicit drugs. There was no evidence of any side effects from previous medications. He reported that he felt he was doing well and had no complaints. He was in full contact with reality. He was well oriented and did not constitute a danger to himself or others. Previous diagnoses were an anxiety neurosis and depression, not otherwise specified. During a December 1992 physical examination, it was reported that he was anxious and depressed. The diagnosis was anxiety and depressive reaction. A VA examination was conducted by a board of two VA psychiatrists in June 1993. At that time the examiners indicated that they had carefully examined the evidence in the appellant's claims folder and his medical records. The examiners stated that the hospital summaries, dated in September 1986, September 1988 and October 1989 as showing the presence of schizophrenia, undifferentiated type and depression not otherwise specified with psychotic features and were not supported by the medical records. The examiners stated that there was no evidence of a diagnosis of schizophrenia or psychotic symptomatology whatsoever. During the examination the appellant reported he was employed with the Government in the lottery agency. He complained of irritability but mostly depression. He tended to remain isolated when he was depressed because he lost control quite easily and had gotten into arguments and fights because of this loss of control. He also referred to nightmares of the Vietnam conflict, but no specific incidents. No specific stressor was ever mentioned by the appellant. There were no delusions or hallucinations reported. There were no disassociated episodes described. There had been no overt suicidal attempts and he was not considered to be a suicidal risk. The affect that he showed was adequate to the emotional content. His mood was depressed. He was oriented in time, place and person. His memory was preserved. His intellectual functioning was maintained. His judgment was fair and his insight was superficial. The pertinent diagnoses were depressive disorder, not otherwise specified; substance use disorder, alcohol abuse; and substance abuse disorder, cocaine abuse, in apparent remission. It was reported that psychosocial stressors were not specified. The highest level of functioning for the prior year was fair. The examiners further commented that they had not found any criteria in the evidence or symptomatology for a diagnosis of post-traumatic stress disorder or any psychosis. To summarize, the medical evidence, including the current examination by a board of two VA psychiatrists and memoranda from the chief of the psychiatry service of a VA medical facility, has ruled out the presence of a psychosis or post-traumatic stress disorder. The correct diagnosis is a psychoneurosis, for which service connection is in effect, and which is currently classified as a depressive disorder, not otherwise specified. The evidence submitted in conjunction with the appellant's current claim, clearly shows that the appellant has been experiencing problems due to his service-connected psychiatric disorder. He has been hospitalized on several occasions for his psychiatric disorder over the last few years. The evidence reflects that his primary symptoms are anxiety, depression, sleep disturbance, anger and fear of losing impulse control. The current VA psychiatric examinations reflect no evidence of any loss of contact with reality, to include fantasy, nor is there any evidence of confusion. The July 1991 VA examination indicated that the appellant had a floating anxiety with a tendency to manipulate. At that time, there were no depressive signs evident. The highest level of functioning for the prior year was described as fair. The most recent 1993 VA psychiatric examination did find depression with superficial insight. Again, his highest level of functioning for the prior year was described as fair. When discharged from the VA hospital in December 1991, his global assessment of functioning for the prior two years was described as being no worse than some mild symptoms or some difficulty in social, occupational, or school function. However, during his hearing the appellant did describe problems due to his anger. His wife, also, described problems in the family, primarily due to outbursts of anger. The testimony is competent as it relates to the symptoms of his psychiatric illness. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). This is confirmed, in part, by correspondence from his employer, which indicated the appellant had used annual and sick and annual leave in 1988. In view of the fact that the appellant's psychiatric illness has required several periods of hospitalization and continued treatment at a mental health clinic, it is the Board's judgment that the service-connected psychoneurosis, currently diagnosed as depressive disorder, not otherwise specified, is productive of definite social and industrial impairment under the applicable rating criteria. Thus, a 30 percent evaluation is warranted. However, the evidence does not reflect that the psychoneurosis results in considerable social and industrial impairment. The record reflects that when the appellant was discharged from the VA facility in September 1988 his highest degree of functioning for the prior year was described as poor. Additionally, the November 1989 memorandum from the chief of the psychiatry service of a VA medical facility indicated that the appellant had severe symptoms which were suggestive of severe anxiety reaction. However, the two recent VA examinations described the highest level of functioning as fair. Additionally, the global assessment of functioning score assigned at the time of the appellant's discharge from the hospital in December 1991, as previously indicated, reflected only mild symptoms for the prior two years. Although the appellant's psychiatric illness does result in definite social and industrial impairment, the record reflects that the appellant has been employed by the same governmental agency for approximately 15 years and is married with three children. The evidence does not reflect that the psychoneurosis is productive of considerable social and industrial impairment and a rating in excess of 30 percent is not supported. In rendering this determination, the Board has considered all pertinent aspects of 38 C.F.R. Parts 3 and 4 as required by the United States Court of Veterans Appeals in Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Specifically, the current medical evidence, as previously discussed, reflects a disability picture resulting from the service-connected psychoneurosis more nearly approximating the criteria required for a 30 percent rating, rather than the next higher evaluation of 50 percent pursuant to 38 C.F.R. § 4.7 (1994). Additionally, the current clinical evidence does not show the presence of such an unusual disability picture which 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). As previously discussed, the appellant has been employed by the same governmental agency for approximately 15 years and his last period of hospitalization for his psychiatric illness ended in December 1991. Finally, the evidence is not in equipoise, either for or against the claim as to warrant the application of the benefit of the doubt doctrine pursuant to 38 U.S.C.A. § 5107 (West 1991). ORDER Entitlement to an increased evaluation of 30 percent for a psychoneurosis, currently diagnosed as a depressive disorder, is granted, subject to the law and regulations governing the payment of monetary benefits. J.F. GOUGH 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.