BVA9503329 DOCKET NO. 93-05 714 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for a psychiatric disorder, currently evaluated at 50 percent. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nancy R. Kegerreis, Associate Counsel INTRODUCTION The veteran served on active duty from March 1942 to July 1945. This matter comes before the Board of Veterans' Appeals (Board) from a September 1992 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied an increased evaluation for an anxiety reaction. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that his nervous disorder has been becoming worse. He states that he is unable to concentrate, that he frequently gets into arguments because he cannot get along with people, and that since he cannot remember what he is supposed to do, he is not able to accomplish his duties or personal responsibilities. He adds that he is depressed and sad all the time and feels lost. 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 evidence supports the award of a 70 percent evaluation for the veteran's psychiatric disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran's psychiatric disorder currently is manifested by lack of emotional control, poor concentration, anger, insomnia, loss of appetite, and nightmares, with evidence of anxiety, depression, and auditory hallucinations, all of which demonsrate severe impairment of social and industrial adaptability. He most recently has been diagnosed as suffering from major depression with psychotic features. CONCLUSION OF LAW The criteria for a 70 percent evaluation for a psychiatric disorder, diagnosed as major depression with 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 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background As a preliminary matter, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that he has presented a claim which is plausible. The Board is also satisfied that all relevant and available facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). In July 1945, the veteran initially was granted service connection at an evaluation of 50 percent, effective from July 1945, for anxiety state, chronic, severe, which was deemed to have been incurred in combat. In June 1947, the veteran's evaluation was reduced to 30 percent, effective from August 1947, and in August 1950, the evaluation was reduced to 10 percent, effective from January 1951. In May 1977, the evaluation was restored to 50 percent, effective from December 1976. This rating has been confirmed and continued until the present time, following Board remands in September 1981 and September 1986 and Board denials in April 1982, November 1984, and August 1987. Although the Board must consider the whole record, 38 C.F.R. § 4.2 (1993), those documents created in proximity to the recent claim are the most probative in determining the current extent of impairment. See Francisco v. Brown, 7 Vet.App. 55 (1994). In this regard, and to provide continuity, the Board will merely summarize briefly the salient points of the veteran's medical history prior to the January 1987 VA disability evaluation examination. Service medical records reveal that the veteran was medically discharged from the Army due to a chronic and severe anxiety state, which was incapacitating by reason of tenseness, tremulousness, epigastric distress, persistent constipation, poor sleep, and palpitations. Although further hospitalization or treatment was not considered necessary, it was concluded that the veteran was not able to perform a reasonable day's work in the service. The report of a VA psychiatric evaluation in September 1950 noted that the veteran was tense and fidgety as the interview began, but he relaxed as it proceeded. He reported constant epigastric pains and was on a strict diet. He indicated that he had been under the care of a psychiatrist over a year and a half with only partial relief, although he believed that he was less nervous and more detached from emotional reactions since his psychotherapy. His hands cramped frequently, and no medicine was effective in relieving the symptoms. He stated that he lost his temper easily, felt constantly on edge, and could not seem to relax. His insight was partial and judgment poor. He exhibited no other psychiatric symptoms. The diagnosis was anxiety reaction, manifested by tension, irritability, impatience, epigastric pains, cramps in hands, with partial social and industrial incapacity, moderate to severe. A VA mental status examination in March 1977 revealed the veteran to be cooperative, reliable, and well-oriented as to time, place, and person. He was alert and not considered harmful to himself or others. He was not delusional or hallucinatory and had no impairment of reality. He had last worked in approximately 1973 as a glass cutter, but was unable to continue due to anxiety, inability to keep his hands from shaking, and episodes of crying. He complained of difficulty in sleeping, a loss of appetite during the prior four months, and some constipation problems. On examination, the physician noted that the veteran's mood was that of marked depression. His recent memory was impaired, and he had problems with digit spans. Speech and thought processes were within normal limits. His judgment appeared to be good. Proverbs were abstract, serial 7's were well performed, and similarities were also abstract. It was also noted that the veteran appeared to be of average intelligence, clinically determined. The diagnosis was anxiety reaction, as manifested by anxious and depressed mood, some impairment of memory, loss of appetite with weight loss, constipation, difficulty in sleeping, and inability to handle work, all considered evidence of moderately severe industrial impairment. The examiner also diagnosed the veteran as suffering from organic brain syndrome, moderate, as manifested by memory impairment, difficulty in handling digit spans, and physical shakiness, also considered moderate. The report of a January 1987 VA disability evaluation examination noted a long history of psychiatric problems for which the veteran had sought continued outpatient treatment in VA mental hygiene clinics. During the mental status interview, he was very tense, but maintained good eye contact with the interviewer. Psychomotor activity was slightly increased. Although he fidgeted during the interview, his general attitude and behavior were pleasant and cooperative, but somewhat tense and hypervigilant. His mood was one of severe anxiety. Testing revealed a poor concentration span. There was no evidence of auditory, visual, or tactile hallucinations or of paranoid delusion. The veteran reported an episode of losing control and was fearful of everything. He reported difficulty in falling asleep, as well as awakening many times during the night. He described his appetite as poor. Similarities were well- abstracted, but proverbs were concrete. His memory appeared to be somewhat impaired for remote events. He denied suicidal or homicidal ideation. His insight and judgment were fair. The pertinent diagnostic impression was generalized anxiety disorder. The examiner noted that at the time of this evaluation, the veteran showed evidence of a major mental illness. It was further noted that his judgment under a very structured situation had been marginal during the prior 15 years. Even though he had been continuing with outpatient treatment, he had been unable to function even under normal conditions and remained with moderate- to-severe symptomatology of anxiety. The examiner considered the veteran totally disabled and unable to engage in any working gainful employment. In April 1992, the veteran saw Luis Ferrer, M.D., a private physician, in Miami Beach, Florida. The reported medical history indicated that he had been under psychiatric treatment for many years and had been admitted to "the VA medical center" about two weeks previously because he had had an argument with his wife and had hit her. This incident had caused him to became very depressed and anxious, as he felt that she was innocent. The veteran reported that he stayed there for about three days and then signed himself out, although his doctor advised him to stay longer. He stated that he continued to feel very depressed and desired to kill himself, but did not have the nerve to do it. He complained of sleeping poorly, of having a very poor appetite, and of having to force himself to eat. He also complained of auditory hallucinations, stating that he could hear voices all the time, but could not make out what they said. He also reported bad nightmares about the war which would wake him up in the middle of the night. When discussing the war, the veteran became very restless and very jittery. He complained of an inability to memorize, but could remember things from way back. He stated that the television talked to him, but had he had no explanation for it. He desired a second opinion about his present emotional disorder in order to obtain a total disability rating from the "Veterans Administration." The report of the mental status examination revealed that the veteran was dressed casually and that he was clean in personal appearance. His attitude was described as cooperative, but not very friendly. He complained about feeling anxious, very depressed, and very restless. His conversation was spontaneous, relevant, and coherent. He admitted to having auditory hallucinations and some vague ideas of persecution and ideas of reference. He admitted to having death wishes and suicidal ideas, but had no plans because he said he was a coward. His memory was impaired for remote events, but he had no other gross impairments of his cognitive functions. He exhibited no gross thought disorders or symptoms of psychosis during the interview. His self esteem was low; and his mood was depressed. His affect was restricted and congruent with his mood. He was in good contact with reality, and his intellectual capacity seemed to be average. The diagnostic impression was major depressive disorder with psychotic features; rule out post-traumatic stress disorder. In August 1992, the veteran consulted Roberto Desdin, Ph.D., a private psychologist, for an opinion as to his mental status. He recited a history of bursting out crying for no reason and stated that he took out his anger on his wife. He complained that his nerves were "shattered." He had joined the Humana Health Maintenance Organization, telling the primary care physician that he wanted a psychiatrist. He reported that he wanted to be assigned a 100 percent VA disability rating so that the VA would pay the total bill for a retirement boarding home. The mental status examination revealed that the veteran was depressed and anxious. There was some lability (crying), but no inappropriateness was noted. He was oriented times three, knew the current United States President, was able to do serial 7's, and had a fair abstraction ability. His judgment was fair, and his recent memory poor. He slept four or five hours a night and complained of a poor appetite. He stated that he heard voices talking to him, but could not make out what they said. He reported auditory hallucinations, and ideas of reference from the television. The psychologist commented that the veteran was an elderly male, with long history of depression and anxiety, who wanted a second opinion to increase his disability rating so that the VA would pay the entire bill for care for him and his wife. The diagnostic impression was major depression with psychotic features. The prognosis was guarded, due to a long history of the disorder. During the veteran's most recent VA mental status examination, in September 1992, he was evaluated by same physician who had examined him in 1987. The veteran admitted that since he and his wife were both getting ill and unable to care for themselves, he was trying to get an increase in his disability rating so that he could move into a boarding home or residential program. He had been retired for 18 years. He complained of being very depressed and feeling sad all of the time. The mental status examination showed the veteran to be tense with a sad expression and a mild psychomotor retardation. He cried several times, remained tearful during the interview, and was depressed. He reported getting angry and releasing his anger on his wife, even to the extent of beating her a couple of times. He claimed to have a lot of nightmares, waking up at night screaming for no reason. Although his memory for recent and remote events appeared to be intact, his concentration was very poor. Insight and judgment appeared to be impaired. The diagnostic impression was major depression, recurrent, with psychotic features. The examiner opined that the veteran was "at the end of his rope" and that there was a real possibility that he might become aggressive and violent toward his wife. II. Analysis Disability evaluations are administered under the Schedule for Rating Disabilities, set forth in 38 C.F.R. Part 4 (1993), which is designed to compensate a veteran for reductions in earning capacity as a result of injury or disease sustained as a result of or incidental to military service. See 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2 (1993); Bierman v. Brown, 6 Vet.App. 125, 129 (1994). In evaluating a disability, the VA is required to consider the functional impairment caused by the specific disability. 38 C.F.R. § 4.10 (1993). Each disability must be evaluated in light of the veteran's medical and employment history, and from the point of view of the veteran's working or seeking work. Schafrath v. Derwinski, 1 Vet.App. 589, 592 (1991). The veteran has been evaluated under 38 C.F.R. § 4.132, Diagnostic Code 9400 (1993), the general rating formula for psychoneurotic disorders. However, as the veteran's last VA mental status examination, as well as recent private psychiatric evaluated, have provided a diagnosis of major depression with psychotic features, the Board finds it more appropriate to evaluate the veteran under 38 C.F.R. § 4.132, Diagnostic Code 9207 (1993), pertinent to psychotic disorders. Under this code, a considerable impairment of social and industrial adaptability warrants a 50 percent evaluation. If the impairment is severe, a 70 percent evaluation is warranted. When there are active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability, a 100 percent evaluation is warranted. The veteran contends that his psychiatric symptomatology has worsened in recent years. The Board finds that such contention is supported by the evidence of record. The veteran's psychiatric problems historically have been manifested by anxiety, poor concentration, and loss of appetite. Recently, however, the veteran's symptoms have appeared to be increasing in severity. By the time of his last VA examination in September 1992, the veteran's disability had increased to the extent that he was barely able to maintain control, and he appeared to have developed additional symptoms of auditory hallucinations, ideas of reference, and nightmares. Under the circumstances, the Board is persuaded that the veteran's disability, now diagnosed as major depression with psychotic features, causes severe impairment of social and industrial adaptability. The Board thus finds that an increased evaluation to 70 percent is warranted. The Board also has considered whether the veteran's degree of impairment comports with the requirements for a 100 percent evaluation, but does not find that the veteran's psychiatric disorder is totally incapacitating, to the extent required for assignment of that rating. For example, while the examiner conducting the most recent VA examination found the veteran to be depressed with psychotic symptoms, he did not offer an opinion, and the record does not otherwise demonstrate, that such symptoms have been severe, persistent, or bizarre, so as to warrant a 100 percent evaluation. The Board also notes that in his report, the examiner indicated that the veteran was capable of managing his benefit payment, and that he was competent for VA fiscal purposes. While fiscal management competency and ability are not specific criteria contained in the relevant diagnostic code of the Schedule for Rating Disabilities, such findings would seem to militate against a conclusion that the veteran is totally disabled by his psychiatric disability, warranting the assignment of a 100 percent rating. Furthermore, the Board finds that the record does not present a disability picture so exceptional or unusual, with such related factors as frequent hohspitalization, such as would render impractical the application of the regular schedular standards and warrant assignment of a rating of more than 70 percent on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (1) (1993). On the basis of the foregoing, the Board concludes that the veteran's psychiatric disorder is productive of a severe impairment of social and industrial adaptability, warranting the assignment of a 70 percent evaluation. ORDER A 70 percent evaluation for a psychiatric disorder, diagnosed as major depression with psychotic features, is granted, subject to the legal criteria governing the payment of monetary benefits. JACQUELINE E. MONROE 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.