Citation Nr: 0000729 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 97-07 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating for service-connected recurrent major depression with agitation and psychotic features, currently evaluated as 50 percent disabling. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Richard A. Cohn, Associate Counsel INTRODUCTION The veteran served on active duty from September 1968 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO) which denied an increased rating for service-connected recurrent major depression with agitation and psychotic features, and which denied a TDIU rating. The veteran appealed the decision to the Board which remanded the case to the RO in November 1998 for further development. After completion of the requested development to the extent possible and continued denial of the veteran's claim the RO returned the case to the Board for further appellate review. FINDINGS OF FACT 1. The record contains all evidence necessary for the equitable disposition of this appeal. 2. Symptomatology associated with the veteran's recurrent major depression with agitation and psychotic features produces total impairment of social and industrial adaptability. 3. The veteran's service-connected recurrent major depression with agitation and psychotic features precludes him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for an evaluation of 100 percent for the veteran's service-connected recurrent major depression with agitation and psychotic features have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.16, 4.125- 4.132, Diagnostic Code 9207 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION A claimant for benefits under a law administered by the VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). Because an allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating, see Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992), the Board finds that the veteran's claim for an increased rating based upon an alleged increase in the severity of his service-connected disability is well grounded. Once a claimant presents a well-grounded claim the VA has a duty to assist the claimant in developing facts which are pertinent to the claim. Id. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue on appeal is of record. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule) to the veteran's current symptomatology. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4 (1999). If two evaluations are potentially applicable the higher evaluation will be assigned if the disability appears to approximate more closely the criteria required for that rating. 38 C.F.R. § 4.7. A disability may require reratings in accordance with changes in a veteran's condition. It is therefore essential to consider a disability in the context of the entire recorded history when determining the level of current impairment. 38 C.F.R. § 4.1. Nevertheless, the current level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Revised schedular rating criteria for psychiatric disabilities have been in effect since November 7, 1996. Where a law or regulation changes after a claim has been filed or reopened, but before the conclusion of the administrative or judicial appeal process, the applicable provision is the one most favorable to the veteran. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). Therefore, the Board considers the veteran's claim here under the former provisions. Under the former criteria, 38 C.F.R. § 4.132, Diagnostic Code (DC) 9207 (1996), major depression with psychotic features is evaluated as follows for the 100, 70 and 50 percent ratings, respectively: Active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial incapacity [100 percent]. Lesser symptomatology such as to produce severe impairment of social and industrial adaptability [70 percent]. Considerable impairment of social and industrial adaptability [50 percent]. Also in effect at the time of the February 1996 rating decision continuing the 50 percent disability rating for the veteran's recurrent major depression with agitation and psychotic features was a regulation pertaining to total disability ratings for individual unemployability under which a mental disorder shall be rated as 100 percent disabling provided: (1) the mental disorder is a veteran's only compensable service-connected disorder, (2) the mental disorder is rated at 70 percent, and (3) the mental disorder precludes a veteran from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16(c) (1996). The RO first granted service connection for a psychoneurosis with anxiety reaction by a rating decision in May 1974, initially assigning a noncompensable evaluation pursuant to DC 9400. In May 1975 the RO increased the rating to 10 percent pursuant to the same DC. In October 1975 the RO recharacterized the disorder as psychoneurosis, anxiety reaction with gastrointestinal problems, and increased the rating to 30 percent pursuant to the same DC. In March 1987 the RO implemented a February 1987 Board decision recharacterizing the disorder as a psychiatric disability and increasing the rating to 50 percent pursuant to DC 9405. The RO's rating decision again recharacterized the veteran's disability, this time as dysthymic disorder. In February 1996 the RO continued the 50 percent evaluation, now characterized as recurrent major depression with agitation and psychotic features, under DC 9207. Since the RO first granted service connection the veteran's disorder also has been identified as a schizoaffective psychosis, undifferentiated schizophrenia and post-traumatic stress disorder. The record is replete with a large quantity of medical records documenting VA and private examination, treatment and hospitalization for a psychiatric disorder from soon after the veteran's separation from service to September 1999. Although the records disclose symptomatology, the severity of which apparently waxed and waned over the years, the most recent VA and private evaluations in September 1995, October 1996 and September 1999 document marked deterioration. A report of a September 1995 VA mental disorders examination includes the veteran's statements that he had not worked since being fired after less than a year on his last job in 1989 and that he had dropped out of a local community college because of poor attendance. The report notes deteriorating mental status including findings of depressed mood, disturbed sleep, social withdrawal, decreased psychomotor activity, and a bleak outlook on the future, a diagnosis of major depression, and a Global Assessment of Functioning (GAF) score of 30. A similar examination report in October 1996 also notes continued deterioration of the veteran's mental status, including findings of agitation, variable psychomotor activity, depressed mood, disturbed sleep, social inhibition, and suicidal rumination. The examiner continued the diagnosis of major depression and a GAF score of 30. A private psychologist who examined the veteran in September 1999 noted symptoms including flawed concentration, inability to timely complete tasks, anxiety/panic attacks, short- and long-term memory loss, flashbacks/intrusive thoughts, insomnia, overwhelming feelings of anger, withdrawal, isolation and depression. The examiner described these symptoms as severely debilitating to the extent that they rendered the veteran "not [] able to sustain substantial, gainful work activity at any skill or exertional level. . ." In short, the examiner found the veteran to be unemployable. At his August 1996 RO hearing and his August 1999 Board video hearing the veteran and his wife testified about his anger and social isolation, even from members of his family, his inability to get along with authority figures on the job and his sleep impairment. The Board finds that the veteran manifests symptoms that warrant an evaluation of at least 70 percent disability. The record provides ample evidence of mental instability and resulting severe impairment of his social and industrial adaptability. See 38 C.F.R. § 4.132, DC 9206. The severe symptomatology described by the VA and private examiners since September 1995 is unambiguous and uncontradicted. Furthermore, GAF scores of 30 to 38 during that time are consistent with major impairment of social and occupational functioning. See American Psychiatric Association: Diagnostic and Statistical Manual for Mental Disorders (Fourth Ed. 1994) (DSM-IV), adopted by the VA at 38 C.F.R. §§ 4.125 and 4.126. The Board also finds that the recurrent major depression with agitation and psychotic features effectively precludes the veteran from working, thereby justifying a 100 percent schedular rating. See 38 C.F.R. § 4.16(c). Moreover, the medical evidence does not indicate the likelihood of the veteran's recurrent major depression with agitation and psychotic features ever stabilizing sufficiently to enable him to get and keep a steady job. He has been unable to hold a steady job since 1989. In consideration of the foregoing, the Board finds that a 100 percent schedular evaluation is warranted in this case for the following reasons: (1) the veteran's recurrent major depression with agitation and psychotic features is his only compensable service-connected disorder, (2) it is properly rated at 70 percent, and (3) it precludes him from securing or following a substantially gainful occupation. Id. Also under this provision, the effect of the 100 percent disability rating for the veteran's recurrent major depression with agitation and psychotic features is to render moot his claim for entitlement to a total disability rating based upon individual unemployability. ORDER Entitlement to a 100 percent schedular disability rating for a recurrent major depression with agitation and psychotic features is granted, rendering moot the issue of entitlement to a total disability rating based upon individual unemployability due to service-connected disability. WARREN W. RICE, JR. Member, Board of Veterans' Appeals