BVA9500815 DOCKET NO. 90-44 711 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. An increased rating for anxiety reaction, currently evaluated as 30 percent disabling. 2. Whether the June 1981 rating decision which denied service connection for cardiovascular disease contained clear and unmistakable error. 3. Service connection for heart disease. (The issue of entitlement to payment of a claim for unauthorized medical expenses is the subject of a separate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Barry F. Bohan, Counsel INTRODUCTION The appellant served on active duty from August 1943 to October 16, 1944. On October 23, 1944, the Department of Veterans Affairs Regional Office in Newark, New Jersey (VARO) granted the appellant service connection for psychoneurosis, mixed type. A 30 percent disability rating was assigned. The service-connected disorder was reclassified as anxiety reaction with labile hypertension in December 1965. In March 1981, the appellant filed a claim for service connection for heart disease. His claim was denied in a VARO decision dated June 3, 1981. The appellant was notified of that decision by letter dated June 8, 1981. He did not appeal the decision. In a rating decision dated January 1989, VARO reduced the disability rating for the appellant's service-connected anxiety reaction with labile hypertension from 30 percent to 10 percent. This appeal followed. In September 1991, the Board remanded the case so that additional development could be undertaken by VARO. On October 14, 1992, VARO restored the appellant to a 30 percent disability rating for anxiety reaction with labile hypertension. A personal hearing was conducted before the undersigned member of the Board in Washington, D.C. in April 1993. The appellant, who was represented by Disabled American Veterans, testified at the hearing. In January 1994, the Board considered this case, which included three issues: an increased disability rating for anxiety reaction, evaluated as 30 percent disabling; whether the June 1981 rating decision which denied service connection for cardiovascular disease contained clear and unmistakable error; and service connection for heart disease. The Board rendered a decision which granted the appellant service connection for hypertensive vascular disease as a separately ratable entity. The case was remanded to VARO so that a disability rating could be assigned for hypertension and so that the remaining three issues, listed above, could be readjudicated in light of the Board's decision. In May 1994, a VA compensation and pension examination of the appellant was completed. The examiner noted that the appellant, age 69, had lung cancer with metastasis to the brain and bone. VARO then returned this case to the Board without adjudication. The appellant, through his accredited representative, has pointed out that he is gravely ill and that swift adjudication of his claim is of the utmost importance. The Board will therefore decide the remaining three issues. VARO should assign a disability rating for hypertension when it receives the appellant's claims folder. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that his service-connected psychiatric disorder is of sufficient severity as to warrant an increased disability rating. He further contends that the June 1981 VARO rating decision which denied service connection for arteriosclerotic heart disease was clearly and unmistakably erroneous. Finally, he contends that his heart disease represents a maturation of hypertension first identified during service. 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 folders. 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 an increased disability rating, to 50 percent, is warranted in this case. Further, it is the decision of the Board that the June 1981 rating decision which denied service connection for cardiovascular disease did not contain clear and unmistakable error. Finally, it is the decision of the Board that service connection should be granted for heart disease. FINDINGS OF FACT 1. The appellant's service-connected anxiety disorder is currently manifested by anxiety, irritability, tension and isolation. 2. The appellant served on active duty from August 1943 to October 16, 1944. 3. During service, high blood pressure readings were noted. 4. In December 1980, heart disease was identified. 5. In June 1981, VARO denied the appellant's claim for service connection for heart disease, finding that heart disease was not related to military service or to the appellant's service- connected anxiety reaction with hypertension. CONCLUSIONS OF LAW 1. The appellant's service-connected anxiety disorder is no more than 50 percent disabling according to the schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9400 (1993). 2. The rating decision of June 1981 did not contain clear and unmistakable error. 38 C.F.R. § 3.105(a) (1993). 3. Heart disease was incurred in or was aggravated by military service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 5107(b) (West 1991); 38 C.F.R. § 3.303, 3.307, 3.307 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant was granted service connection for cardiovascular disease as a separately ratable entity by the Board in January 1994. The case was remanded so that VARO could assign a disability rating to the appellant's service-connected cardiovascular disease and then readjudicate his claim with respect to the remaining two issues on appeal. As noted in the Introduction, VARO failed to do so. However, as discussed above, the Board has been made aware of the appellant's very compromised physical condition by his representative. It is believed that proceeding to an immediate decision on the two remaining issues is the best course of action under the circumstances. The appellant is seeking a rating in excess of the currently assigned 30 percent for his service-connected anxiety reaction. The other issue on appeal is whether the June 1981 rating decision which denied the appellant service connection for arteriosclerotic heart disease contained clear and unmistakable error. Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). In the interest of clarity, the Board will first review the appellant's medical history. 38 C.F.R. § 4.1 (1993); Peyton v. Derwinski, 1 Vet.App. 282 (1991). We will then discuss the issues presented on this appeal. Medical history Service medical records reveal that in June 1944 the appellant reported experiencing "blackout spells" since the age of fourteen. He was hospitalized for evaluation. He related a history of blackouts, apathy and secretive tendencies since age 14. The examiner's diagnosis was simple schizophrenia. However, to avoid the stigma attached to a diagnosis of psychosis, the final diagnosis was changed to psychoneurosis, mixed type. During hospitalization, blood pressure readings of 148/100 (right arm, sitting); 140/100 (left arm, sitting); 160/110 (immediately upon arising) and 150/110 (after standing two minutes) were recorded on one occasion. Further workup revealed a left systolic murmur, which was described as functional in nature. Chest X-rays were normal. In October 1944, the appellant was discharged from military service due to psychoneurosis. VA physical examinations of the appellant were completed in May 1947, January 1948, January 1949, and February 1951. During that period, the appellant was employed and was not receiving medical treatment for any disorder. He complained of fatigue, insomnia, headaches and dizziness. No abnormality of the cardiovascular system was identified. During the February 1951 examination, he expressed a fear of his "heart not beating right - I'm worried about it - I want a physical check up." Blood pressure was 140/90. His cardiovascular system was described as normal. A complete VA physical examination was performed in November 1965. The appellant complained of headaches and dizzy spells. He reported being treated for high blood pressure since November 1964. On examination, blood pressure readings were: 130/90 (sitting); 150/100 (standing); and 130/80 (sitting after exercise). An ECG was within normal limits. A chest X-ray was normal. The diagnosis was no evidence of hypertension or heart disease. Another VA examination of the appellant was completed in June 1980. The appellant continued to complain of headaches, dizziness and blackouts. He was taking no medications. Blood pressure readings were: 186/102 (sitting); 180/136 (standing); and 186/96 (ten minutes after exercise). An ECG and chest X-ray were within normal limits. On examination, the heart sounded normal. The diagnosis was hypertension. During a psychiatric examination, the appellant was noted to be tense, quiet, irritable, covertly hostile and suspicious. The diagnosis was chronic anxiety and depressive psychoneurosis, with psychophysiologic disturbance of the cardiovascular system, hypertension. In December 1980, the appellant was admitted to the Perth Amboy General Hospital after he blacked out. On admission, blood pressure was 175/105. A chest X-ray was normal. An EKG was normal. An exercise stress test was markedly abnormal. Final diagnoses were syncope episode; angina pectoris; transient ischemic attack. A January 1981 stress test was also markedly abnormal Tachycardia was noted after the end of the exercise. A VA physical examination of the appellant was completed in March 1981. The appellant reported the December 1980 hospitalization, as well as the fact that he "failed" the stress tests. Blood pressure readings were 126/82 (sitting); 130/84 recumbent); and 128/80 (standing). The examiner stated that the appellant's heart seemed to be within normal limits. The diagnosis was angina pectoris by history only. A VA examination of the appellant was completed in August 1988. He complained of dizziness, blackouts and headaches, as well as occasional chest pains on exertion. Blood pressure was 160/100. Heart sounds were normal. Chest X-ray was normal. An ECG was borderline. The examiner noted no sign of psychiatric pathology. No specialist psychiatric examination was conducted. Another VA examination of the appellant was completed in March 1992. The appellant, then age 66, continued to complain of chest pains on exercise, blackouts, and tiredness. Blood pressure readings were 154/92 (sitting); 154/94 (recumbent). An ECG was within normal limits. Diagnoses were hypertension, coronary artery disease, angina pectoris. A psychiatry consultation was performed. The appellant complained of anxiety, irritability, tension and isolation. The examiner indicated that the appellant appeared to be apprehensive and depressed. Diagnoses were: anxiety disorder and depressive disorder, of "moderate severity". As noted in the Introduction, a VA physical examination of the appellant was completed in May 1994. The appellant was wheelchair bound and was reportedly unable to perform any activities. A psychiatric examination was canceled. 1. An increased rating for anxiety reaction, currently evaluated as 30 percent disabling. In evaluating the appellant's request for an increased rating, the Board considers the medical evidence of record. The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1993). In so doing, it is our responsibility to weigh the evidence before us. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The schedular criteria call for a 30 percent disability rating for anxiety reaction which results in definite social and industrial impairment. With respect to the word "definite", as the Court of Veterans Appeals pointed out in Hood v. Brown, 4 Vet.App. 301, 303 (1993), that term is qualitative rather than quantitative. However, it is possible to quantify the degree of impairment which would lead to an award at the 30 percent level. Cox v. Brown, 6 Vet.App. 459, 461 (1994). In a precedent opinion, dated November 9, 1993, the General Counsel of the Department of Veterans Affairs 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." O.G.C. Prec. 9-93 (Nov. 9, 1993). The Department of Veterans Affairs, including the Board, is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c) (West 1991). A 50 percent disability rating is warranted for anxiety reaction which results in considerable impairment of social and industrial adaptability. A 70 percent disability rating is warranted for anxiety reaction which results in severe social and industrial inadaptability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.132, Diagnostic Code 9400 (1993). The words "considerable" and severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just". 38 C.F.R. 4.6 (1993). In evaluating the appellant's psychiatric disorder, the Board is cognizant of our responsibilities under the Schedule for Rating Disabilities. 38 C.F.R. § 4.130 (1993). The appellant's medical history has been carefully reviewed. It is evident from the May 1994 VA examination that an up to date psychiatric evaluation is not possible because of the appellant's extremely compromised physical condition, which includes a brain tumor. The most recent VA psychiatric examination, in March 1992, resulted in a finding by the examiner that the appellant's psychiatric symptomatology was of "moderate severity". Since "moderate severity" may be viewed as "more than moderate", an increased disability rating is warranted. The Board has reviewed the appellant's testimony at the April 1993 personal hearing. He stated that he saw a doctor for his anxiety disorder "every three months" [hearing transcript, page 3] and received no ongoing treatment [hearing transcript, page 10]. He stated that he avoided crowds, but indicated that he went to church and to shopping malls and got along with people. Based on the appellant's hearing testimony, as well as the medical record, which discloses no hospitalization or ongoing treatment for anxiety disorder, the Board is of the opinion that the social and industrial impairment caused by the appellant's psychiatric disorder is considerable, but not severe. 38 C.F.R. § 4.7 (1993). A 50 percent disability rating is therefore assigned. 2. Whether the June 1981 rating decision which denied service connection for cardiovascular disease contained clear and unmistakable error. VA regulations allow for further consideration and allowance after a previous unfavorable Regional Office decision, if there was clear and unmistakable error in that rating decision. 38 C.F.R. § 3.105(a) (1992). "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts: it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet.App. 370, 372 (1991). "...'Clear and unmistakable error' requires that error, otherwise prejudicial,...must appear undebatably." Akins v. Derwinski, 1 Vet.App. 228, 231 (1991). In January 1981, the appellant filed a claim for service connection for his recently diagnosed heart disease. He stated, in effect, that the hypertension which he had during service caused his heart disease. He submitted no medical evidence to that effect. Under pertinent law and VA regulations in 1981, which are substantially unchanged to date, service connection could be granted if symptomatology attributable to heart disease appeared during service or within one year thereafter. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). Service connection could also be granted if the evidence demonstrated that heart disease first diagnosed many years after service was part of, or was caused by, a service-connected disorder. 38 C.F.R. §§ 3.303, 3.310 (1993). In order to determine whether the June 1981 rating decision contained clear and unmistakable error, we review the evidence which was before the VARO rating board "at that time". 38 C.F.R. § 3.104(a) (1993). In other words, we cannot apply the benefit of hindsight to an evaluation of the rating board's action in 1981. Evidence before the VARO rating board in 1981 has been set forth in the appellant's medical history, above. In essence, there was one set of elevated blood pressure readings during service, in June 1944. There was no history of chronic hypertension until approximately 1964, twenty years after service. During a June 1980 VA examination, heart disease was not found, despite extensive testing, and the psychiatric examiner indicated that the appellant's hypertension was a manifestation of his psychiatric disorder. Heart disease was identified in December 1980, approximately 35 years after service. The Board also notes that in a December 1965 rating decision, VARO changed the appellant's service-connected anxiety reaction to anxiety reaction with labile hypertension. Based on the medical record, VARO found at that time that the appellant had hypertension during service but that the hypertension was a labile type. The VARO rating board further found that this labile hypertensive pattern was part of the appellant's anxiety reaction. In its January 1994 decision, the Board found that the December 1965 VARO decision contained clear and unmistakable error in joining together the hypertension and the anxiety reaction without any supporting medical evidence. It must be strongly emphasized, however, that unlike the 1965 decision, in June 1981 VARO had medical evidence of record, namely the June 1980 VA examination report, which linked the appellant's anxiety and hypertension into one clinical entity. The June 1981 VARO decision which is at issue denied the appellant service connection for heart disease. In essence, VARO's June 1981 decision continued to hold that hypertension experienced by the appellant during and after military service was part of his service-connected anxiety reaction. VARO concluded that heart disease which was first identified in 1980 was unrelated either to military service or to the service- connected anxiety reaction and its associated hypertension. The Board believes, based on the evidence available to VARO in June 1981, that there was no clear and unmistakable error in that decision. That decision was based on extensive medical evidence which demonstrated that the appellant did not have heart disease during service or for many years thereafter. In addition, there was no medical evidence on record which suggested that the heart disease which was identified in December 1980 was related to the service-connected anxiety disorder and its associated labile hypertension. Under those circumstances, the Board cannot say that correct and relevant law and regulations were not applied to correct and relevant facts. 3. Service connection for heart disease. The Board believes that, giving the appellant the benefit of the doubt, the evidence supports a conclusion that the appellant's heart disease is related to the evidence of hypertension during military service. 38 U.S.C.A. § 5107(b) (West 1991). This decision is based on the entire medical evidence of record, which, although somewhat tenuous, when taken together suggests a long-standing pattern of hypertension dating back to military service. The Board cannot say that the appellant's heart disease is unrelated to the hypertension. Service connection for heart disease is therefore granted. It should be noted that the Board's decision on this issue is not inconsistent with the above finding of no clear and unmistakable error in the June 1981 rating decision. As discussed above, the standard for finding clear and unmistakable error is substantially higher than that for establishing service connection. ORDER An increased disability rating for anxiety reaction, to 50 percent, is granted, subject to controlling regulations applicable to the payment of monetary benefits. The June 1981 rating decision which denied service connection for cardiovascular disease did not contain clear and unmistakable error. Service connection for heart disease is granted. KENNETH R. ANDREWS, JR. 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.