BVA9505924 DOCKET NO. 92-12 365 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to a temporary total disability rating under 38 C.F.R. § 4.29 as a result of a period of care at a VA domiciliary from March 1991 to June 1992. 2. Entitlement to an increased evaluation for anxiety state with somatic complaints, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher P. Kissel, Associate Counsel INTRODUCTION The appellant served on active duty from February 1941 to November 1944. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Des Moines, Iowa, Department of Veterans Affairs Regional Office (VARO). The procedural history of this case has been thoroughly set forth in the Board's remand decision of February 3, 1994. In accordance with the Board's February 1994 remand, the requested development was accomplished to the extent possible, and the case has been returned to the Board for further appellate review. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that his service-connected anxiety disorder is more disabling than currently evaluated. He further contends that he was admitted and treated during a period of nursing home care in a VA domiciliary from March 1991 to June 1992, for his service-connected psychiatric disorder, and therefore, a temporary total disability rating pursuant to Paragraph 29 should be assigned for time he spent in the VA domiciliary. 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(s). 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 a preponderance of the evidence is against the appellant's claim for a temporary total disability rating for a period of nursing home care between March 26, 1991 to June 12, 1992. Further, it is the decision of the Board that the appellant's service-connected anxiety disorder is more appropriately rated as 100 percent disabling, according to the pertinent schedular criteria. FINDINGS OF FACT 1. The appellant received a regular discharge from VAMC, Knoxville, IA, on March 26, 1991, at which time he began a period of nursing home care as a resident at the VA Domiciliary, VAMC, Knoxville, IA, lasting through June 12, 1992. 2. The appellant's service-connected anxiety disorder is currently manifested by totally incapacitating psychoneurotic symptoms (confusion, anxiety, perplexity and fear, as well as chronic depression, disorientation and frequent crying spells), requiring a continuous psychotropic medication regimen and regular outpatient psychiatric treatment and evaluation, resulting in total social and industrial impairment. CONCLUSIONS OF LAW 1. The criteria for the payment of a temporary total rating for a period of nursing home care at a VA domiciliary between March 26, 1991 and June 12, 1992, have not been established. 38 C.F.R. § 4.29 (1994). 2. The appellant's service-connected anxiety disorder produces for all practical purposes total social and industrial impairment; thus, the schedular criteria for a total 100 percent disability evaluation are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 9400 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Claim for Paragraph 29 Benefits The record on appeal discloses that the appellant was hospitalized at the VA Medical Center (VAMC), Knoxville, IA, from January 28, 1991 through March 26, 1991, for treatment and evaluation of his service-connected anxiety disorder. This period of hospitalization included a temporary transfer to VAMC, Des Moines, IA, on March 4, 1991, for foot surgery (bunionectomy, right great toe) following which he was transferred back to VAMC Knoxville, IA, two days later on March 6th for further treatment and evaluation of his anxiety disorder. The discharge summary report for his hospitalization at VAMC Knoxville, IA, indicates that he received a regular discharge on March 26, 1991, at which time he took immediate residence at that facility's Domiciliary. He remained at the Domiciliary through June 12, 1992. During his period of residence at the Domiciliary he was re-hospitalized for treatment and evaluation of his anxiety disorder at VAMC Knoxville, IA, for 14 days in February 1992. On February 24th, he was transferred back to the Domiciliary. In March 1991, VARO granted Paragraph 29 benefits for the appellant's period of hospitalization at VAMC Knoxville IA, between January and March 1991. Those benefits were discontinued effective March 31, 1991. See Rating Decision, VA Form 21-6796b- 1 (March 21, 1991). A confirmed rating action dated in September 1991, denied Paragraph 29 compensation benefits for the aforementioned period at the VA Domiciliary, Knoxville, IA, between March 1991 and June 1992. The issue presently before the Board is whether the appellant is entitled to Paragraph 29 benefits for his period at the Knoxville VA Domiciliary. Applicable VA regulations provide that a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service- connected disability has required hospital treatment in a Department of Veterans Affairs or an approved hospital for a period in excess of 21 days or hospital observation at the VA's expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29 (1994) (emphasis added). The regulatory scheme further provides that a total disability rating for Paragraph 29 benefits will be terminated effective the last day of the month of hospital discharge (regular discharge or release to non-bed care) or effective the last day of the month of termination of treatment or observation for the service- connected disability. 38 C.F.R. § 4.29(a) (1994). With respect to domiciliary care, the VA's Adjudication Manual (M21-1) provides the following specific guidelines: Discontinue total ratings under paragraph 29 of the rating schedule when a veteran is transferred to nursing home care since he or she can no longer be considered to require "hospital treatment" or "hospital observation." Manual, M21-1, Part IV, para 18.28(g) (October 8, 1993). The Board concludes that the preponderance of the evidence does not establish entitlement to Paragraph 29 benefits for a period of nursing home care at a VA domiciliary between March 1991 and June 1992. As fully detailed above, the present regulatory scheme clearly draws a distinction between "hospital treatment" and nursing home care. In the opinion of the Board, the appellant's residence at the VA Domiciliary, Knoxville, IA, in 1991-92 was essentially nursing home care. The fact that he was transferred out of the Domiciliary to the VAMC for fourteen days in February 1992, for treatment and evaluation of his anxiety disorder lends credence to this opinion. Accordingly, since Paragraph 29 benefits are not payable for domiciliary care, the claim fails as a matter of law. See Sabonis v. Brown, 6 Vet.App. 426 (1994). II. Increased Disability Evaluation 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). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by VA and that a disposition on the merits is now in order. The appellant is seeking a higher disability evaluations for his service-connected psychiatric disorder (anxiety state with somatic complaints). 38 U.S.C.A. § 1155 (West 1991). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1994); Peyton v. Derwinski, 1 Vet.App. 282 (1991). The schedular criteria provide that a psychoneurosis, such as an anxiety disorder, resulting in definite social and industrial impairment warrants a 30 percent disability rating; a 50 percent disability rating is warranted for considerable impairment of social and industrial adaptability; a 70 percent disability rating is warranted for severe social and industrial impairment. See 38 C.F.R. § 4.132, Diagnostic Code 9400 (1994). A total schedular disability rating (100 percent) for psychoneurosis under code 9400 is warranted for one or more of the following conditions: All personal contacts with the veteran except the most intimate are so adversely affected as to result in virtual isolation in the community; or, for totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities, such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior; or, when the evidence reflects that the service- connected psychoneurosis results in demonstrable inability to obtain or retain employment. The United States Court of Veterans Appeals has recently concluded that any one of the above-cited criteria is a separate and independent basis for an award of a total disability rating under code 9400 et seq. See Johnson v. Brown, No. 93-98 (U. S. Vet. App. September 28, 1994). A longitudinal review of all of the evidence of record persuades the Board that the appellant's service-connected anxiety disorder should be assigned a total 100 percent disability rating according to the schedular criteria set forth under diagnostic code 9400. The current medical evidence reflects multiple psychiatric diagnoses including, major depression, recurrent but without psychosis, pseudodementia, passive/aggressive personality disorder, and most recently, organic affective disorder. During his most recent period of hospitalization (August 1994), the appellant was described as "... very confused, anxious, alert and disoriented to time and place." In addition, it was noted that he suffered frequently from crying spells and that his "[m]ood and affect were dysphoric." It was also noted that he had "[s]ustained emotions [of] confusion, anxiety, perplexity and fear." Careful scrutiny of the evidence of record discloses that these symptoms have been remained relatively chronic and severe since approximately 1990. See VA Hospital Report dated December 19, 1990. Moreover, there is no evidence that his long-term medication regimen, inpatient hospitalization or outpatient counseling has improved his psychiatric disorder so as to make him employable or improve his relations with others. Upon consideration of the appellant's description of his symptoms, coupled with the objective medical evidence of record, the Board believes that the record supports a finding of functional impairment which more nearly approximates the criteria for a total 100 percent schedular evaluation for impairment due to "totally incapacitating psychoneurotic symptoms," manifested by recurrent depression and chronically severe bouts of confusion, anxiety and disorientation. 38 C.F.R. §§ 4.7, 4.20 (1994). ORDER A temporary total rating based on a period of nursing home care at a VA domiciliary between March 26, 1991 and June 12, 1992, is denied. A total (100 percent) disability evaluation for the appellant's service-connected anxiety disorder is granted, subject to the regulations controlling the payment of monetary benefits. 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.