Citation Nr: 0002719 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 98-07 144 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating for generalized anxiety disorder, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD Mary C. Suffoletta, Associate Counsel INTRODUCTION The veteran had active service from February 1942 to July 1944. This matter comes to the Board of Veterans' Appeals (Board) from an August 1997 RO rating decision that denied an increased evaluation for the veteran's generalized anxiety disorder (rated 30 percent under diagnostic code 9400). The veteran submitted a notice of disagreement in December 1997, and the RO issued a statement of the case in April 1998. The veteran submitted a substantive appeal in September 1998. FINDINGS OF FACT 1. The veteran's anxiety disorder is manifested primarily by depressed mood, anxiety, suspiciousness, somatic complaints, and mild memory loss that produce no more than definite social and industrial impairment; impaired judgment, impaired abstract thinking, flattened affect, panic attacks, and circumstantial or stereotyped speech are not shown. 2. Reduction of reliability, flexibility, and efficiency levels to the point of considerable industrial impairment and impairment in the ability to maintain effective or favorable relationships with people are not shown or more nearly approximated. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for generalized anxiety disorder are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.132, Code 9400 (effective prior to November 7, 1996), 4.130, Code 9400 (effective as of November 7, 1996). REASONS AND BASES FOR FINDING AND CONCLUSION A. Factual Background The veteran had active service from February 1942 to July 1944. Service medical records show that the veteran was examined in 1942 for generalized aching with no pathology. The examiner's impression was a mild neurosis, and the veteran was allowed to return to duty. Service medical records show that the veteran was treated for mild gastric neurosis in 1943. In 1944, the veteran was diagnosed with psychoneurosis, anxiety type, severe, and was discharged from service. A July 1944 RO rating decision granted service connection for psychoneurosis, anxiety type with somatic complaints, and assigned a 30 percent evaluation under diagnostic code 1083, effective from July 1944. An April 1947 RO rating decision decreased the evaluation for anxiety with mild social and industrial limitations from 30 percent to 10 percent, effective from June 1947. A December 1951 RO rating decision decreased the evaluation for anxiety with mild social and industrial limitations from 10 percent to zero percent, effective from February 1952. A February 1984 RO rating decision increased the evaluation for generalized anxiety disorder with history of somatic complaints from zero percent to 10 percent, effective from August 1983. A February 1993 RO rating decision continued the 10 percent rating for generalized anxiety disorder with history of somatic complaints. The veteran disagreed with this rating decision and submitted an appeal. Records show that an MRI of the veteran's brain in May 1995 reflected cerebellar atrophy. VA outpatient records show that, in February 1996, the veteran reported forgetfulness and that his memory was poor. An assessment noted by the examiner at the time was possible beginning dementia. In August 1996, the Board increased the evaluation for generalized anxiety disorder with history of somatic complaints from 10 percent to 30 percent, effective from December 1992. The Board found that the veteran's generalized anxiety disorder was manifested by feelings of depression, anxiety, and somatic complaints, and probably was productive of definite social and industrial impairment. The veteran underwent a VA examination in July 1997. He reported that he has had "bad nerves" for the past 60 years. He reported that he was tense and anxious, and was easily upset. The veteran reported that he fixed watches most of his life, and that he now fixed an occasional clock. The veteran reported spending most of his time around the house, and that he got along with his family. Upon examination, the veteran was alert, cooperative, and neatly dressed. There were no loose associations or flight of ideas, and no bizarre motor movements or ticks. The veteran's mood was somewhat tense; his affect was appropriate. There were no delusions, hallucinations, ideas of reference, or suspiciousness. The veteran was oriented times three; both remote memory and recent memory were good. Insight and judgment appeared to be adequate, as did intellectual capacity. Anxiety attacks were not reported. The veteran was diagnosed with generalized anxiety disorder, mild. An August 1997 RO rating decision continued the 30 percent rating for generalized anxiety disorder with history of somatic complaints. VA medical records show that the veteran was treated for his anxiety disorder on an outpatient basis, and that he attended individual psychotherapy sessions approximately once every two weeks in 1997. Records show that it was considered beneficial for the veteran to have an outlet for venting his frustrations. The veteran and his wife testified at a hearing in July 1998. The veteran testified that he stopped working at age 62 because he could not handle the work due to his nerves. The veteran testified that he could not concentrate, and that he would get confused and irritated. The veteran also testified that he was depressed; that his only relationships were with his wife and family; and that he would at times have outbursts and anger directed at his children. The veteran's wife testified that the veteran has memory loss and short- term memory problems. When the veteran's wife was asked if the veteran had panic attacks, she described episodes of anger and depression. VA medical records show that the veteran was treated for anxiety in July 1998 and in September 1998. The veteran requested a prescription for Activan. He reported that he gets irritated easily with his family and others, and that he was depressed. The veteran denied suicidal ideations. The examiner's impression was anxiety disorder in partial remission, with prognosis guarded. B. Legal Analysis The veteran's claim for an increased evaluation for generalized anxiety disorder is well grounded, meaning it is plausible. The Board finds that all relevant evidence has been obtained with regard to the claim and that no further assistance to the veteran is required to comply with VA's duty to assist him. 38 U.S.C.A. § 5107(a) (West 1991). In general, disability evaluations are assigned by applying a schedule of ratings (rating schedule) which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155. Although the regulations require that, in evaluating a given disability, that disability be viewed in relation to its whole recorded history, 38 C.F.R. § 4.41, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Also, 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evidence indicates that the veteran's psychiatric problems have been classified primarily as generalized anxiety disorder. The Board will evaluate the psychiatric symptoms as generalized anxiety disorder under diagnostic code 9400 and consider all of the psychiatric symptoms as a manifestation of this disorder. A 30 percent evaluation is warranted for generalized anxiety disorder when there is definite impairment in the ability to establish or maintain effective and wholesome relationships with people and psychoneurotic symptoms resulting in such reductions in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. A 50 percent rating requires that the ability to establish or maintain effective or favorable relationships with people be considerably impaired and that reliability, flexibility, and efficiency levels be so reduced by reason of psychoneurotic symptoms as to result in considerable industrial impairment. A 70 percent evaluation is warranted where the ability to establish or maintain effective or favorable relationships with people is severely impaired and the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain and retain employment. A 100 percent evaluation requires that attitudes of all contacts except the most intimate be so adversely affected as to result in virtual isolation in the community and there be totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes (such as fantasy, confusion, panic, and explosions of aggressive energy) associated with almost all daily activities resulting in a profound retreat from mature behavior. The veteran must be demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, diagnostic code 9400, effective prior to Nov. 7, 1996. The regulations for evaluation of mental disorders were revised, effective November 7, 1996. 61 Fed. Reg. 52695- 52702 (Oct. 8, 1996). When regulations are changed during the course of the veteran's appeal, the criteria that is to the advantage of the veteran should be applied. Karnas v. Derwinski, 1 Vet. App. 308 (1991). In Hood v. Brown, 4 Vet. App. 301 (1993), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, the Court) stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other psychiatric rating terms 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." VAOPGCPREC 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). Under the revised general rating formula for the evaluation of mental disorders, 38 C.F.R. § 4.130, Code 9400, effective November 7, 1996, generalized anxiety disorder will be rated as follows: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.-100 percent Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.-70 percent Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.- 50 percent Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).-30 percent In this case, the evidence shows that the veteran has received VA outpatient treatment, as well as individual therapy and medications for a generalized anxiety disorder. A report of the 1997 VA examination reflects few abnormal clinical findings and not more than mild symptomatology attributed to the veteran's generalized anxiety disorder. While both the veteran and his wife testified to the effect that the veteran was experiencing memory loss problems, the VA examiner noted that both the veteran's remote memory and recent memory were good. More recent medical evidence attributes the veteran's complaints of forgetfulness to possible beginnings of dementia. In this case, recent reports of the veteran's VA psychiatric evaluations and the hearing testimony show that his service- connected generalized anxiety disorder is manifested primarily by depressed mood, anxiety, suspiciousness, somatic complaints, and mild memory loss. While the Board notes that the 1997 VA examination did not include a GAF (Global Assessment of Functioning) score, the overall medical evidence reflects only mild symptomatology due to the veteran's service-connected generalized anxiety disorder. The Board finds that a 30 percent rating for generalized anxiety disorder under diagnostic code 9400, both old and new, best represents his disability picture. The evidence of record does not demonstrate impaired judgment, impaired abstract thinking, flattened affect, panic attacks, circumstantial or stereotyped speech, or other manifestations associated with the generalized anxiety disorder to support the assignment of a rating in excess of 30 percent under the above-noted diagnostic code. The RO has considered the propriety of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999), finding that exceptional or unusual circumstances such as frequent need for hospitalization or marked interference with employment were not present to a degree warranting submission of the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service. The Board agrees. The preponderance of the evidence is against any increase based on current symptoms, and the claim is denied. Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An increased rating for generalized anxiety disorder is denied. J. E. DAY Member, Board of Veterans' Appeals