Citation Nr: 0003558 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 94-33 680 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an increased rating for a generalized anxiety disorder, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Stephen L. Higgs, Associate Counsel INTRODUCTION The veteran served on active duty from January 1953 to January 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in May 1993 by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. This case was the subject of a Board remand dated in August 1997. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Medical treatment records and examinations have demonstrated such symptoms as rambling speech, impaired affect, impaired short term and long term memory, impaired judgment, impaired abstract thinking, disturbances in motivation and mood, and difficulty in establishing or maintaining effective work and social relationships. 3. The veteran's symptoms such as mood and affect problems, memory disturbances, impaired judgment, and impaired abstract thinking, create considerable social and industrial impairment. CONCLUSION OF LAW The criteria for a 50 percent rating for a generalized anxiety disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.132, Diagnostic Code 9400 (1996); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background As a result of a July 1961 rating action, the veteran was awarded service connection and assigned a 10 percent disability rating for anxiety reaction. During an April 1993 VA psychiatric examination, the veteran complained of problems in memory and mood since his heart attack in July 1992. He cried easily for little reason and could not control it. Medications had helped, but had not entirely remedied this problem. He complained of getting shaky, sweaty, scary, etc. He had palpitations. He became short of breath easily and became jumpy on certain sounds. He said he did not lose his temper, didn't get into fights, but walked away whenever he felt he could not comprehend or understand things. He felt sad, confused and depressed. He had no energy or desire to do anything. He used to cut firewood in the past, but now he could not do it because he felt tired. Before his heart attack, he used to worry a lot and had difficulty in sleeping; however, these days he had no problems at all in sleeping. Even though he felt depressed, he denied any suicidal ideas. He denied any hallucinatory experience. He denied feelings that people were after him trying to hurt or kill him. The veteran was well groomed, but with about a day-old beard. He was wearing a winter jacket in the office. He was cooperative and polite during the entire interview. He was mildly restless and had hand tremors. His mood was anxious, fearful and dysphoric. He was also labile and became tearful easily. His speech was spontaneous and rather rambling. His speech became loose and was getting fragmented. His affect was increased in intensity and wide in range. It was also inappropriate. He became tearful when he could not name the President before Mr. Clinton. He denied any hallucinatory experiences. He was oriented to time, place and person. He was able to name the current president. He had problems with serial 7 subtractions and serial 4 subtractions. He denied any suicidal or assaultive ideas. He was quite concerned about his depression, forgetfulness, difficulty in comprehension, etc. The examiner noted that he did not have the claims folder or medical records to review. He opined that the veteran was competent for VA purposes. The veteran said he worked his finances along with his wife and that there was no problem. In the examiner's view, the veteran continued to show the signs and symptoms of neurosis. The examiner was not sure for what kind of neurosis the veteran was service-connected. The examiner stated that if it was depressive neurosis, the condition seemed to have worsened quite dramatically. If the veteran was service-connected for anxiety neurosis, he still had lots of signs and symptoms of anxiety. The examiner further noted that the veteran had signs and symptoms of dementia, though it seemed more likely that he had major depression. During his July 1996 RO hearing, The veteran testified he was being treated at a VAMC for anxiety on an as-needed basis. He said he was receiving medication for the condition. He said his nerves were worse since his heart attack. He described his memory difficulties and said he did not understand what had happened to him. He said he became irritated quickly with crowds. He said he had several friends he went fishing with, and that he trained dogs as a form of therapy. He said farming was nerve-racking and he was glad he was out of the situation. He said that were it not for his heart attack and stroke, he felt he could still work in farming. He described problems with tearfulness. He indicated he walked away now when situations became difficult. He said his wife had to keep after him to get things done. He would visit his father, who had Alzheimer's disease. He indicated he was sleeping more than he used to. During a July 1996 VA examination, the veteran was noted to go out to eat and go to church. He called his friends at times, but he did not like to talk much. He did not like to be in crowds anymore. He was a member of DAV, but did not like to go to their meetings because he did not like the crowds. He was noted to have once attended the VA Medical Center mental hygiene clinic about two to three times per week. He was now seeing the psychiatrist only about once every four months. He was getting along very well with his wife, son and neighbors. His wife got on his nerves when she asked him too many questions, and told him what to do and what not to do repeatedly. If she did not remind him, he would forget. Sometimes he would forget the way if he went a little ways from the house. He would get sad and depressed easily. He cried easily. He felt tired all the time, especially in the morning. Sometimes he asked himself what was the use in living, but he did not want to kill himself. He did not have plans for the future. He rubbed his hands often, scratched his neck and hands, and picked on his nail cuticle. When he became nervous, he tended to walk away and stay by himself. He denied dyspepsia and diarrhea. He denied getting nauseous, tremulous or sweaty. He felt nervous with people since he felt he had trouble communicating, and so he avoided meeting people. He denied dissociative phenomena. He denied hearing voices and denied any paranoid thinking. However, he thought that people did not like him as much as they did in the past since he had become forgetful and more nervous. His appetite was good. He slept well, and said he slept too much. He used to have nightmares in the past. Upon objective examination, he came to the interview on time. He was wearing clean, appropriate street clothes. His hair was fairly well groomed. He was polite and cooperative. His handshake was firm and dry. His mood was anxious and dysphoric. He was ringing his hands often. He sat in a stiff posture. His speech was soft, spontaneous, and goal directed. His affect was constricted in range and decreased in intensity. There was no evidence of hallucination or delusional thinking. He was well oriented to time, place and person. He was able to recall two out of three items after five minutes. He was able to name only the last three Presidents. He denied suicidal or assultive ideas. The examiner's diagnosis was neurosis. During a March 1998 VA psychiatric examination, the veteran was noted to be seen by a VA psychiatrist about once every three months. His condition was noted to have been stable over the past three or four months. The examiner stated that since July 1996, the veteran's condition had been relatively stable He had not worked since 1992 on the advice of his cardiologist following a heart attack and a stroke. His primary care physician had noted that the veteran had become more concerned about his memory over the past two years. He had spent his time at home taking care of the dog and doing minor household chores. Presently, the veteran was anxious. His anxiety seemed to be persistent, if not increasing, over the past two years. The veteran was particularly more irritable when he had problems with his memory. He was worried he would acquire dementia, as his father had done. In addition, the veteran had been developing increasing cognitive decline and persistent depressive symptoms. There had been no remissions of the veteran's symptoms over the past two years. He reported that he was becoming more irritable with his spouse, particularly when she reminded him about things he had forgotten he had to. Over the past two years, he was receiving primary care follow-up and psychiatric follow-up every two to three months at the VA medical center. He continued to be withdrawn and anhedonic over the past two years. He was very anxious and upset about his memory decline and change in condition. He was on several medications. The veteran reported that he did not understand some of his behavior. He was concerned that his memory was deteriorating. His spouse confirmed that the veteran was afraid of becoming afflicted with Alzheimer's disease, as his father had done. He was withdrawn and did not feel like talking to people and wanted to be by himself. He was unhappy about losing his temper towards his wife, who reminded him to do things. He denied sleep disturbance and denied suicidal ideations or death wishes. He said he was ready to die, but would prefer to live. He had symptoms of anxiety. He was constantly worried about things he did or was going to do. He was pessimistic by nature, always expecting the worst. He said he was fatigued and tired, although this could also be due to depression. He had a sense of urgency inside him. He indicated that when he was nervous, he picked on his fingers, squeezed them and picked pimples on his skull or his face, and was obsessed by them. He said he felt as though he had a ball in his throat or butterflies in his stomach, that his muscles were tense and he was shaking from inside, and reported that he had tremors and felt nauseated as if he were going to pass out. In addition, the veteran had a memory decline as noticed since 1992 secondary to a stroke and a heart attack. The veteran had an impairment in short term memory. He would leave home after closing the door and would forget where he was going and have to come back home. He said that recently he was driving east towards home when he found himself north of his hometown. Upon mental status examination, the veteran was appropriately dressed. He had good eye contact. He speech was understandable and coherent. He was very anxious, restless, and fidgety, picking his fingers, scratching his nail beds and pinching his hands almost constantly over the 11/2 hour interview. He denied being depressed, though he denied feeling well. He did not have disturbance of perception and did not have depersonalization or derealization. His thought process was normal in productivity. He frequently expressed difficulties with his recalling events in the past. He was not delusional. There were no obsessional or suicidal or assaultive ideations. He was administered the Mini Mental Scale Examination of Folstein, and he scored 25 out of 30 indicating mild dementia. His ability to calculate was satisfactory for simple calculation and eighth grade education. Judgment was satisfactory when memory was not involved. Thought processes were slightly slow in productivity, but communication was only minimally impaired. He had no delusions or hallucinations. He did not exhibit inappropriate behavior. He was not suicidal or homicidal. He was able to maintain minimal personal hygiene and other basic activities of daily living. He was oriented to person and place but not to time. He did not have obsessive or ritualistic behavior. Rate and flow of speech were logical and goal oriented. He did not have panic attacks. He did have mild dysphoria and anxiety. He did not have poor impulse control. His sleep was unimpaired by for nocturia. The depression appeared to be remitting extremely slowly for the past five years. The veteran was found not capable of managing his benefit payments in his best interest because of memory impairment. It was the examiner's opinion that the veteran had a generalized anxiety disorder. The examiner noted that the term anxiety neurosis was no longer recognized as a DSM diagnostic category. The veteran was noted to have cognitive impairment secondary to stroke. The veteran had been experiencing depression for the past four or five years. He was not suicidal at the time of examination. He was withdrawn and had symptoms of fatigue which could be attributed to anxiety as well as depression. The veteran had insight toward his cognitive decline. Because of this insight, he was coping poorly with the knowledge of these symptoms with an increasing level of anxiety. Accordingly, the examiner felt the veteran to have a generalized anxiety disorder. The symptoms of the anxiety disorder were restlessness, irritability towards his spouse, muscle tension, and being easily fatigued. He also had other somatic symptoms of anxiety such as micturition, palpitation, dyspnea, shortness of breath and nausea. The veteran did not have sleep disturbance due to anxiety. He was having problems with concentration which were difficult to evaluate because this condition may overlap with his current dementia. The degree of impairment secondary to anxiety disorder was assigned a global assessment of functioning of 65. The examiner's Axis I diagnosis was generalized anxiety disorder. Global assessment of functioning was according to the GAF scale was evaluated as 45 currently and over the past year. The examiner indicated that a global assessment of functioning of 65 to 70 would reflect impairment due solely to generalized anxiety disorder. In addition to the VA examination reports of record, the Board has VA records of psychiatric treatment dated from March 1992 through December 1997. These confirm the veteran's ongoing treatment for psychiatric disability characterized by depression, anxiety, and memory impairment. Analysis The Board finds the veteran's claim for an increased rating to be well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991) in that it is plausible. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is inadequate for rating purposes. In addition, it is the judgment of the Board that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4 (1999). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. 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 (1999). During the pendency of the veteran's appeal, VA promulgated new regulations amending the rating criteria for mental disorders, effective November 7, 1996. See 61 Fed. Reg. 52,695 (1996) (codified at 38 C.F.R. pt. 4). "[W]here the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to [the veteran] . . . will apply unless Congress provided otherwise or permitted the Secretary of Veterans Affairs (Secretary) to do otherwise and the Secretary did so." Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). In Rhodan v. West, 12 Vet. App. 55 (1998), the United States Court of Veterans Appeals, now the Court of Appeals for Veterans Claims (the Court), observed that when the Secretary adopted the revised mental disorder rating schedule and published it in the Federal Register, the publication clearly stated an effective date of November 7, 1996. Because the revised regulations expressly stated an effective date and contained no provision for retroactive applicability, it is evident that the Secretary intended to apply those regulations only as of the effective date. Therefore, in view of the effective date rule contained in 38 U.S.C. § 5110(g), which prevents the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law, the Secretary's legal obligation to apply November 7, 1996, as the effective date of the revised regulations prevented the application, prior to that date, of the liberalizing law rule stated in Karnas. Accordingly, the Court held that for any date prior to November 7, 1996, the Board could not apply the revised mental disorder rating schedule to a claim. Under the version of the regulations in effect prior to November 7, 1996, a 30 percent rating was warranted where there was definite impairment in the ability to establish or maintain effective and wholesome relationships with people. The psychoneurotic symptoms resulted in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. A 50 percent rating was warranted when the ability to establish or maintain effective or favorable relationships with people were considerably impaired, and when by reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels were so reduced as to result in considerable industrial impairment. A 70 percent evaluation was warranted where the ability to establish and maintain effective or favorable relationships with people was severely impaired, and the psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. A 100 percent evaluation was warranted (1) when the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community; (2) where there were 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 (3) where the veteran was demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Code 9400 (in effect prior to November 7, 1996). Under the amended regulations, a 30 percent rating will be assigned where there is 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). A 50 percent rating will be assigned when there is 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. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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 worklike setting); and the inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. 38 C.F.R. § 4.130, Diagnostic Code 9400 (1999). In the present case, the preponderance of the evidence supports a 50 percent rating under both the new and old criteria. Under the new criteria, medical examinations have demonstrated such symptoms as rambling speech, impaired affect, impaired short term and long term memory (such as the veteran's inability to remember where he was going or things he needed to do, or problems remembering recent Presidents), impaired judgment (he was found incompetent at one VA examination), impaired abstract thinking (such as problems counting serially backwards), disturbances in motivation and mood (depression and physical manifestations of anxiety have been apparent during examinations), and difficulty in establishing or maintaining effective work and social relationships (such as the veteran's guilt about being irritable with his spouse). The next higher rating of 70 percent is not warranted under the new criteria because the veteran does not have such symptoms as suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure or irrelevant, impaired impulse control, spatial disorientation, or inability to establish or maintain effective relationships. The veteran has had problems with remembering to maintain his appearance, but by his account he can do so when his wife reminds him. He is able to maintain good relationships with his wife, son and neighbors, though with difficulty at times. His speech is appears to be generally goal directed and coherent, if a little rambling or slow at times. He has said repeatedly he does not have suicidal ideation. He has been found not to have impaired impulse control. Under the old criteria, a 50 percent rating is warranted because the veteran has considerable impairment of the ability to establish or maintain effective or favorable relationships with people, and considerable industrial impairment, due to his service-connected anxiety disorder. In the Board's view, his symptoms such as mood and affect problems, memory disturbances, and impaired judgment create considerable impairment. A 70 percent rating is not warranted under the old criteria because the veteran does not have severe impairment of the ability to establish favorable relationships or employment. By the veteran's account, it is his physical disabilities which caused him to cease employment, and the veteran appears to maintain an effective relationship with his wife, family and neighbors, albeit with significant difficulties. The Board acknowledges that it is not clear to what extent many of the veteran's problems are due to dementia and others are due to the veteran's service-connected psychiatric disability. One VA examiner felt the problems were more likely due to neurosis than dementia; another felt that the memory problems were due to stroke, though he indicated an interaction between the veteran's anxiety and dementia which made it difficult to determine the cause of the veteran's problems with concentration. In any event, this has been a difficult determination for the medical professionals who have reviewed the veteran's record. Accordingly, cautiously mindful of the fact that some of the veteran's decline in cognitive ability appears to be unrelated to his anxiety disorder, the Board has decided to grant the benefit of the doubt in a direction which favors the veteran's claim, to the extent that the Board finds that a 50 percent rating for the veteran's generalized anxiety disorder is warranted. 38 U.S.C.A. § 5107(a). ORDER Entitlement to a rating of 50 percent for a generalized anxiety disorder is granted. RENÉE M. PELLETIER Member, Board of Veterans' Appeals