BVA9502902 DOCKET NO. 93-09 681 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel INTRODUCTION The veteran served on active duty from May 1966 to March 1970. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the regional office (RO) committed error in denying his claim of entitlement to service connection for an acquired psychiatric disorder. He contends that he had a nervous breakdown in service and was given tranquilizers in service to calm down. He asserts that since that time he has been treated privately for a mental disorder. In addition, the veteran asserts, in essence, that the RO committed error in denying his claim of entitlement to a permanent and total disability rating for pension purposes. He claims that his situational anxiety is more severely disabling than currently evaluated. Specifically, he maintains that the Department of Veterans Affairs (VA) mental examination of May 1992 did not adequately explore his mental condition. In his substantive appeal, he asserted multiple problems, including extreme anxiety, pessimism, fear, and tiredness. He added that he needs to be in control of everything and is unable to be spontaneous; he reported inability to go above the third floor of any building, claustrophobia in certain bathrooms, fear of certain people including barbers, a compulsion to save cut hair, nail clippings, bath water, used scrap paper, old light bulbs, clothes, and cans. He also expressed other phobias, including fear of mailing bills or letters, licking stamps, heights, elevators, flying, darkness, riding in cars with others, fear of distance from his vehicle, fear of use of medicine or alcohol, and fear of signing his name. He compulsively Xeroxed or photographed all outgoing mail, compulsively photographed sunsets, had excess concern for the whereabouts of others, compulsively touched objects and made purchases, and took elaborate safety precautions. He contends that he is unable to work as a result of these problems, and that he is entitled to a permanent and total disability rating for pension purposes. DECISION OF THE BOARD The Board of Veterans' Appeals (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 is against the claim for service connection for an acquired psychiatric disorder and against the claim of entitlement to a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claims has been obtained insofar as possible. 2. An acquired psychiatric disorder was not shown in service; situational anxiety, first shown years after service, is not related to service. 3. The veteran was born in July 1947, has a general equivalency diploma, has completed several college courses, and has reported work experience as an automobile detailer, janitor, and salesman. 4. The veteran's principal disabilities are situational anxiety and obesity. 5. The veteran's situational anxiety is manifested by normal mental status, and concern for current socioeconomic and financial problems and is productive of no impairment in earning capacity. 6. The veteran's obesity is manifested by a weight of 227 pounds with a height of 5'10" and an average build, which is considered moderately medically significant, and which is productive of no impairment of earning capacity. 7. The veteran's disabilities do not preclude him from engaging in substantially gainful employment, consistent with his age, education and occupational history. 8. The veteran's disabilities are not productive of total disability and are not sufficient to render the average person unable to follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder was not incurred in or aggravated by wartime service. 38 U.S.C.A. §§ 1110, 5107 (West 1991). 2. The veteran is not permanently and totally disabled within the meaning of governing law and regulations. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. Part 3, §§ 3.321, 3.340, 3.342, and Part 4, §§ 4.7, 4.15, 4.16, 4.17 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that the veteran has presented claims which are 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 mandated by 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). The Board notes that in his April 1993 appeal, the veteran contended that the May 1992 VA mental examination was not sufficiently thorough. As a review of the examination report demonstrates, although the psychiatrist did not report the plethora of symptoms the veteran later reported in his appeal, the psychiatrist did provide the veteran with an opportunity to identify his specific symptoms and phobias. Several topics, including phobias, were discussed. The examiner commented that the veteran's responses or explanations were nonsensical. In light of the examiner's attempt to obtain explicit information from the veteran by various methods, the Board cannot conclude that the VA examinations provided to the veteran were deficient. Therefore, we find that the examination as conducted was adequate and that there is no need for a remand for duty to assist purposes. Although the veteran has reported having received private treatment for mental troubles in 1970, and in 1976 or 1977, none of the doctors he has named as treating him have provided treatment records, despite the RO's requests for same. The RO has advised the veteran that it was unable to seek records from "Dr. Dibrienza" due to the veteran's failure to provide a full address for this doctor, and that efforts to reach certain other providers have failed due to changes in their addresses. During the course of the appeal, the veteran was notified of the RO's efforts on his behalf, and he was also provided several opportunities to submit additional evidence. I. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active wartime service. 38 U.S.C.A. § 1110. Service medical records reveal that at service entrance in May 1966, the veteran reported a pertinent history of bedwetting. The examiner noted this to have occurred at age 9 without sequelae. Psychiatric examination was normal. In February 1970, the veteran was seen for the purpose of discussing his personal problems. At separation examination in February 1970, the psychiatric examination was normal. The veteran reported having experienced depression or excess worry, and nervous trouble; the examiner noted that these were due to personal problems. VA general medical examination in May 1992 included a history of earning $ 547.00 per month and having been self employed since leaving the Air Force, with intermittent periods of unemployment. He said that he had been continually employed for the prior 12 months. He complained of socioeconomic and economic problems, nervousness, and anxiety. Mental status was normal on examination. Although the examiner deferred the exact psychiatric diagnosis to the psychiatrist, the examiner did offer his own diagnosis of socioeconomic problems with financial problems resulting in situational anxiety. A history of long- term chronic neuropsychiatric difficulties of a moderately severe degree was also noted. At VA psychiatric examination later in May 1992, the veteran gave a history of dropping out of high school in the 10th grade, having earned a general equivalency diploma, and having completed some college courses while in the Air Force. He reported that he currently worked selling soap and cleansing products, etc., and that he cleaned offices and beauty shops in the evenings. The veteran said that he had never been psychiatrically hospitalized but that he had had a nervous breakdown in February 1970. He stated that he was taken to a VA hospital but refused treatment and was then taken to a general practitioner, who prescribed tranquilizers. He reported his symptoms at that time as feeling as if he had no arms, and numbness, shortness of breath, tremors, and tightness in his chest. He then said that he never told anyone in the Air Force about this due to fear. But he also asserted that he was taken to a VA hospital which automatically notified the Air Force. The examiner noted that "there were a lot of discrepancies and contradictions in this claim." When questioned about suicidal tendencies, he stated that he had occasionally held a gun to his head. His present symptoms, by his report, included a history of the economy being poor, with sales down, having no money, and fear of homelessness. When asked why he felt he could not hold a regular job, he said that he had phobias, which he described as fear of leaving a certain location, and fear that if he was given a credit card he would lose it. The examiner found that the veteran's explanations for his problems were "nonsense" and quite possibly motivated by economic concerns. He was noted to have normal mood, appropriate affect, and no hallucinations or psychosis. His cognitive functions were intact. He denied current suicidal and homicidal thinking. The psychiatrist noted that the veteran was not under any mental health treatment and had not received any such treatment or medicine for years, and did not give symptoms which could be the basis of a psychiatric diagnosis. The impressions were that the veteran was malingering and that he was fully capable of gainful employment. We have considered the claim for service connection for an acquired psychiatric disorder. The evidence essentially shows that although the veteran had personal problems in service, his psychiatric diagnosis was normal at service separation. None of the post-service evidence which has been obtained supports a connection between his current psychiatric complaints and service. Rather, one VA examiner associated situational anxiety to current economic problems, and another VA examiner found no neuropsychiatric disorder. While it is unfortunate that the RO has been unable to obtain records of the veteran's reported private post-service treatment, we are mindful that the "...duty to assist is not always a one-way street," and that the veteran himself has not provided full and correct address information to the RO to assist in development of his claim. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). Therefore, service connection for an acquired psychiatric disorder is not warranted. II. PENSION As the Board has previously discussed, the veteran has submitted a well-grounded claim, and the VA has met its duty to assist the veteran. The Board finds that the medical records in the claims file provide sufficient evidence to rate each of the veteran's disabilities. In addition, the Board notes that the May 1992 VA examinations adequately evaluate the extent of his physical condition and provide sufficient diagnoses of his present disabilities. See Roberts v. Derwinski, 2 Vet.App. 387, 390 (1992); Abernathy v. Principi, 3 Vet.App. 461, 464-465 (1992). A. Entitlement to a Permanent and Total Disability Evaluation For Pension Purposes Under 38 U.S.C.A. § 501 (West 1991), the Secretary of the VA has the authority to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the VA. With regard to claims for pension benefits, the Secretary's authority to prescribe regulations providing for determinations of permanent and total disability may be based in whole or in part upon subjective criteria. Talley v. Derwinski, 2 Vet.App. 282, 286 (1992). Both objective and subjective standards are often set forth within the same statutory provision or regulation. The basic law referable to pension benefits, for example, states that pension is payable to a veteran who served for ninety days or more during a period of war and who is permanently and totally disabled due to nonservice-connected disabilities not the result of his own willful misconduct. 38 U.S.C.A. § 1521; 38 C.F.R. § 3.342. A finding of total disability is warranted where the person experiences any disability which is sufficient to render it impossible for an average person to follow a substantially gainful occupation. The "average person" standard is implemented by VA regulations, including 38 C.F.R. § 3.340(a), and § 4.15, which also adds that the total rating is based primarily upon the average impairment in earning capacity, i.e., the economic or industrial handicap which must be overcome. In addition, 38 U.S.C.A. § 1502(a)(2) essentially provides that permanent and total disability may exist in any disorder determined by the Secretary to be of such a nature and extent as to justify that persons suffering therefrom are permanently and totally disabled. Initially, the Board notes that a total disability rating is based primarily upon the average impairment of earning capacity. 38 C.F.R. Part 4, § 4.15. The VA's Schedule for Rating Disabilities (Rating Schedule) also provides a means for objective determination of total disability. When impairment is commensurate with a 100 percent rating in accordance with schedular criteria, a total rating on a schedular basis is warranted. 38 C.F.R. § 3.340(a)(2). 38 C.F.R. Part 4, § 4.17, provides that all veterans basically eligible and unable to secure or follow a substantially gainful occupation by reason of disability likely to be permanent shall be rated permanently and totally disabled. For pension purposes, the permanence of the percentage requirements of 38 C.F.R. Part 4, § 4.16, is a requisite. 38 C.F.R. Part 4, § 4.17. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. Part 4, § 4.16. For pension purposes, when the percentage requirements are met and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure and follow substantially gainful employment by reason of such disability. Marginal employment, for example, as a self-employed farmer or other person, while employed in his or her own business, or at odd jobs or while employed at less than half the usual remuneration will not be considered incompatible with a determination of unemployability, if the restriction, as to securing or retaining better employment, is due to disability. 38 C.F.R. Part 4, § 4.17. Subjective factors for consideration are also included in 38 C.F.R. Part 4, § 4.15, which provides that in individual cases, full consideration will be given to such factors as unusual physical or mental effects in individual cases, peculiar effects of occupational activities, defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap or disability, and the effect of combinations of disabilities. In addition, 38 C.F.R. Part 4, § 4.17(b), states that where the veteran fails to meet the percentage requirements, but meets the basic eligibility criteria and is unemployable, consideration of 38 C.F.R. § 3.321(b)(2) is appropriate. In turn, 38 C.F.R. § 3.321(b)(2) provides that where the veteran does not meet the percentage requirements of the Rating Schedule, but is unemployable by reason of his age, occupational background, or other related factors, a permanent and total disability rating on an extra-schedular basis is warranted. B. The Veteran's Disabilities The veteran in the present case served on active duty for a period in excess of ninety days during the Vietnam era. Therefore, his entitlement to pension, apart from income and net worth factors, will be determined based on whether or not he is permanently and totally disabled as a result of his disabilities. A complete review of the claims folder indicates that the veteran's principal disabilities are situational anxiety and obesity. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Different diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (1994). Situational anxiety has been rated by analogy to unspecified neurosis. A 0 percent rating is warranted for unspecified neurosis that is characterized by neurotic symptoms which adversely affect relationships, but which do not impair working ability. Unspecified neurosis which is mildly socially and industrially disabling is rated 10 percent. When unspecified neurosis causes a veteran definite impairment in the ability to establish or maintain effective and wholesome relationships with people, and psychoneurotic symptoms result in such reduction in initiative, flexibility and efficiency levels as to produce definite industrial impairment, a 30 percent evaluation is assigned. When a veteran's 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 50 percent evaluation will be assigned. A 70 percent rating is assigned when the ability to establish and maintain effective or favorable relationships with people is severely impaired. The psychoneurotic symptoms must be of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent rating is warranted where there is total incapacitation due to psychoneurotic symptoms. 38 C.F.R. § 4.132, Diagnostic Code 9410 (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 which quantifies the degree of impairment for purposes of meeting the statutory requirement that the Board articulate its "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 the term "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability which 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.A. § 7104(c). With these considerations in mind, the Board will address the merits of the claim at issue. In evaluating psychiatric disability, the objective findings and the analysis of the symptomatology are the essentials. It is for this reason that great emphasis is placed on the full report of the examiner, descriptive of actual symptomatology. 38 C.F.R. § 4.130 (1994). Obesity has been rated by analogy to hypothyroidism. This disorder, if pronounced, with long history and slow pulse, decreased levels of circulating thyroid hormone, sluggish mentality, and slow return of reflexes, is rated 100 percent. If severe, with the symptoms of pronounced hypothyroidism but less marked, decreased levels of circulating thyroid hormones, it is rated 60 percent. If moderately severe with sluggish mentality and other indications of myxedema, decreased levels of circulating thyroid hormones, it is rated 30 percent. If moderate with fatigability, it is rated 10 percent. If in remission, it is rated 0 percent. 38 C.F.R. § 4.119, Diagnostic Code 7903 (1994). The veteran's situational anxiety was previously discussed in part I of this decision. As a result of a thorough review of all of the evidence associated with situational anxiety, we find that situational anxiety is no more than 0 percent disabling, which is the rating assigned by the RO for this disability. We note in particular the psychiatrist's conclusions, that there were significant discrepancies in the veteran's history of this disability, and that the veteran was fully able to retain and perform gainful employment. While the general medical examiner felt that veteran's socioeconomic and financial problems resulted in situational anxiety, that examiner pointedly deferred to the psychiatrist for the exact degree of neuropsychiatric problems. Given the psychiatrist's findings of no industrial incapacity, the degree of neuropsychiatric disability in this case is 0 percent. Further, the veteran's very detailed recitation of symptoms in his substantive appeal is not otherwise supported by competent medical evidence and alone is not sufficient to raise the level of psychiatric disability above 0 percent. With regard to the veteran's nonservice-connected obesity, the Board notes that in the June 1992 rating decision the RO has rated this disability as 0 percent disabling under Diagnostic Code 7999-7903. The 0 percent rating is consistent with the medical data of record. The general medical examiner in May 1992 noted the veteran to be 5'10" and of average build. He weighed 227 pounds. His state of nutrition was described as moderately overweight. While the examiner felt this was moderately medically significant, no impairment of function associated with obesity was noted. Therefore, we find that obesity produces no impairment of earning capacity. C. Analysis The Board finds, therefore, that the veteran is rated at 0 percent for both his obesity and his situational anxiety. These ratings comprise a 0 percent combined disability evaluation in accordance with the provisions of 38 C.F.R. Part 4, §§ 4.25, 4.26 (1994), referable to combined ratings. The combined 0 percent rating represents the average wage-earning impairment caused by the veteran's disabilities. As noted above, entitlement to pension benefits may be objectively determined if the veteran is unemployable as a result of a permanent disability or experiences a disability which would preclude an average person from following a substantially gainful occupation, if it is reasonably certain that such disability is permanent. 38 U.S.C.A. § 1502(a); 38 C.F.R. Part 4, § 4.15. The Board also notes that a total disability rating for the veteran's disorders is not warranted under the applicable schedular criteria contained in the Rating Schedule. With a combined 0 percent evaluation, the disorders are clearly not representative of a total disability in accordance with applicable schedular criteria or applicable regulations. 38 C.F.R. Part 4, §§ 4.16, 4.17. Upon a review of the clinical findings of record referable to the veteran's disabilities and in consideration of the Rating Schedule with regard to such disabilities, the Board concludes that the veteran's disabilities would not preclude an average person from securing and following substantially gainful employment. The Board recognizes that the veteran has socioeconomic and financial stress. However, neither of the disabilities, either in combination or alone, is so severely disabling as to render him unemployable. As such, the evidence of record does not support a conclusion that the veteran experiences disability which, even if permanent, would render the average person unable to follow a substantially gainful occupation. 38 U.S.C.A. § 1502(a). Accordingly, a permanent and total disability evaluation based upon the objective "average person" standard of review is not warranted. Since the veteran's disabilities do not meet the percentage requirements of 38 C.F.R. Part 4, § 4.17, applied to pension cases through 38 C.F.R. Part 4, § 4.16, the Board must determine whether the veteran would be eligible for pension benefits based upon subjective criteria, including consideration of the veteran's age, education and occupational history, and unusual physical or mental effects. 38 C.F.R. Part 3, § 3.321, Part 4, § 4.15. In this regard, the Board notes that the veteran was born in July 1947. According to his report to the psychiatric examiner, he has earned a general equivalency diploma, completed several courses in college, and worked as a salesman and janitor. His pension application also reflects a history of work as an automobile detailer. Upon consideration of the combined effect of the veteran's disabilities, in addition to his age, education, and occupational history, the Board is not persuaded that the veteran is permanently and totally disabled. The objective evidence shows that the veteran has no functional impairment or industrial incapacity resulting from his two disorders. An allowance of pension benefits, therefore, is also not warranted based upon subjective criteria. 38 C.F.R. Part 3, § 3.321, Part 4, § 4.15 (1994). The veteran's claim of entitlement to a permanent and total disability evaluation for pension purposes must, therefore, be denied. The Board notes that the veteran reported being employed on his March 1992 application and at the time of his May 1992 VA examination. As of May 1992, the veteran indicated that his monthly wages were $547. If employment is marginal, it will not be considered incompatible with a determination of unemployability, if the restriction, as to securing or retaining better employment, is due to disability. 38 C.F.R. § 4.17 (1994). In this case, the medical evidence indicates that the veteran has no restrictions as to obtaining or retaining employment. The psychiatric examiner in May 1992 provided an opinion that the veteran was "fully capable of gainful employment." No limitations were otherwise noted by any medical personnel. Consequently, it cannot be concluded that the veteran is precluded from performing more than marginal employment due to disability. ORDER Service connection for an acquired psychiatric disorder is denied. A permanent and total disability rating for pension purposes is denied. M. SABULSKY 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.