BVA9502983 DOCKET NO. 91-36 829 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased evaluation for psychiatric disability, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Loeb, Counsel INTRODUCTION The veteran served on active duty from December 1944 to April 1946. In January 1994, the Board of Veterans' Appeals (Board) remanded this case to the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington for additional development. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in denying an increased evaluation for his psychiatric disability because his psychiatric symptomatology, including his need for continued outpatient treatment and medication, is severe enough to warrant a 70 percent evaluation. 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. 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 veteran's claim for an evaluation in excess of 30 percent for his psychiatric disability. FINDINGS OF FACT 1. Satisfactory effort has been made to obtain all relevant evidence necessary for an equitable determination of the veteran's appeal. 2. The veteran's psychiatric symptomatology results in no more than moderate social and industrial impairment. 3. The veteran's mixed psychoneurosis does not involve an unusual disability picture with such factors as marked interference with employment or frequent periods of hospitalization. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for psychiatric disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.132, Diagnostic Code 9400 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a), that is, it is not inherently implausible. Additionally, the facts relevant to the issue on appeal have been properly developed and the statutory obligation of the VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When 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 (1993). In Hood v. Brown, 4 Vet.App. 301 (1993), the 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 that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate "reasons or bases" for its decisions. 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." 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. To warrant an evaluation of 50 percent for mixed-type psychoneurosis, the veteran's ability to establish or maintain effective or favorable relationships with people must be considerably impaired, and, by reason of his psychoneurotic symptoms, his reliability, flexibility, and efficiency levels must be so reduced as to result in considerable industrial impairment. To warrant an evaluation of 70 percent for this disability, the veteran's ability to establish and maintain effective or favorable relationships with people must be severely impaired, and his psychoneurotic symptoms must be of such severity and persistence that there is severe impairment in his ability to obtain and retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9400. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (1993) and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's service- connected psychiatric disability. The Board has found nothing in the historical record which would lead us to conclude that the current evidence of record is not adequate for rating purposes, nor have we found any of the historical evidence in this case to be of sufficient significance to warrant a specific discussion herein. VA outpatient records in 1991 reveal several notations that the veteran was being seen for atypical anxiety. It was noted in January 1991 that some of his siblings had recently died. He indicated in March 1991 that his medication sometimes helped his condition. On VA psychiatric examination in February 1992, it was noted that the veteran had received outpatient treatment over the years for his psychiatric disability. He said that he continued to function in his church, which was a major part of his life activities, even though he frequently felt very restless and had periods of withdrawal or depression. Although he came to the interview wearing a soiled T-shirt and sweat outfit, with his hair disheveled, it was noted that he had arrived on time and that his personal hygiene had improved over a previous visit earlier in the month. He acknowledged difficulty in self-control and brief periods of social withdrawal. He also reported episodes of mild anxiety and depression. On mental status examination, the veteran's mood showed mild anxiety with some depressive affect appropriately demonstrated as he discussed the loss of close family members and his adjustment to the community without them. Anxiety disorder was diagnosed, and it was noted that the veteran had a current GAF scale of 70 with definite impairment in his ability to develop and maintain interpersonal relationships resulting in reduction in his efficiency and reliability. VA outpatient records from February 1992 to November 1993 reveal that the veteran continued to be seen on a periodic basis for atypical anxiety. It was noted in June 1992 that he was not having any side effects from his medication. It was reported in August 1993 that he had increased his ramblings in conversation since his last visit. On VA psychiatric examination in July 1994, the veteran stated that his psychiatric symptomatology did not interfere with his daily life except when he counseled another World War II veteran during the course of his activities as a volunteer chaplain. He said that he was generally satisfied with the status quo in his life and that he was able to concentrate well on his daily activities. He enjoyed socializing and doing volunteer chaplain work. He indicated that he and his third wife had a good relationship. It was noted that the veteran arrived on time for his psychiatric examination and that he was dressed cleanly; he wore cutoff pants and a D-Day anniversary T-shirt. His cognitive functions were considered intact on mental status examination. Because some of the veteran's responses were inaccurate or unrealistic, such as his statement that his second wife had died in 1986 and that he had been married to his current wife for thirteen years, the VA examiner in July 1994 thought that the veteran might have an evolving organic affective syndrome that was leaving his cognitive functions intact, or that his responses were part of his mixed neurosis. Mixed anxiety/depression was diagnosed, with a differential diagnosis of organic affective/delusional disorder plus residual PTSD. The examiner concluded that the veteran's level of disability, including his level of social adaptability and his ability to manage his own activities of daily living and finances, was unchanged since VA examination in February 1992, which was described as mild impairment. The Board must now determine, based on the evidence of record, the severity of the veteran's service-connected psychiatric disability under the criteria noted above. The veteran is a volunteer chaplain, attends church, is happily married, and enjoys socializing, all of which indicate that his ability to establish or maintain effective or favorable relationships with other people is certainly no more than moderately impaired, despite any occasional episodes of withdrawal. He was on time for his VA examinations in 1992 and 1994, which indicates reliability. Although some of his answers on examination in July 1994 were unrealistic, his cognitive functioning was intact. Additionally, the examiner in July 1994 thought that the veteran's level of disability resulted in mild impairment, which was the same level as on VA examination in February 1992. Based on the above evidence, the Board finds that the veteran's psychoneurotic symptoms result in no more reduction in initiative, flexibility, efficiency, and reliability levels than is productive of moderate industrial impairment. Therefore, because the veteran's symptomatology does not more nearly approximate the criteria for a 50 percent evaluation, an evaluation in excess of 30 percent for the veteran's service- connected psychiatric disability is not warranted. 38 C.F.R. §§ 4.7, 4.132, Diagnostic Code 9400. The Board has also considered the provisions of 38 C.F.R. 3.321(b)(1) regarding the assignment of an extraschedular evaluation. However, the disability picture for the veteran's service-connected psychiatric disability is not so exceptional or unusual, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. ORDER An evaluation in excess of 30 percent for the veteran's psychiatric disability is denied. ROBERT E. SULLIVAN 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.