Citation Nr: 0002881 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 98-10 447 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to an increased rating greater than 70 percent for a nervous disorder. 2. Entitlement to special monthly pension on the basis of being housebound or in need of aid and attendance. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, appellant's wife ATTORNEY FOR THE BOARD D. P. Kennedy, Associate Counsel INTRODUCTION The veteran served on active duty from December 1954 to November 1956. This case comes before the Board of Veterans' Appeals (Board) from an appeal of a rating decision by the San Juan, Puerto Rico, Regional Office (RO) of the Department of Veteran Affairs (VA), in which the RO declined to increase the disability rating for service connected dysthymia above 30 percent. In a subsequent rating decision, the RO increased the disability rating to 70 percent, effective September 12, 1997, the date the veteran requested reconsideration of his claim. Cf. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The Board also notes that the RO issued a June 1999 rating decision in which special monthly compensation and special monthly pension, each based on being housebound or the need for aid and attendance, were denied. The issue of entitlement to special monthly pension is the subject of the REMAND part of this decision. FINDINGS OF FACT 1. All relevant evidence necessary for a fair and informed decision has been obtained by the originating agency. 2. The veteran's service connected nervous disorder is manifested by occupational and social impairment with deficiencies in most areas due to symptoms of depression, frequent crying, suicide ideation, strong feelings of worthlessness, hopelessness and helplessness, irritability and frustration, no social interests, and hallucinations. CONCLUSION OF LAW The criteria for an assignment of a rating greater than 70 percent for a nervous disorder have not been satisfied. 38 U.S.C.A. § 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Codes 9434, 9440 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran has presented a well grounded claim for an increased evaluation for his service connected disability within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The veteran has not alleged that any records of probative value that may be obtained, and which have not already been associated with his claims folder, are available. Accordingly, the Board finds that all relevant facts have been properly developed and the duty to assist the claimant, under 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. In considering the severity of a disability, it is essential to trace the medical and rating history of the disability. 38 C.F.R. §§ 4.1, 4.2 (1999). In a May 1959 rating decision, the RO granted service connection for schizophrenic reaction, latent (formerly diagnosed as anxiety reaction), with a noncompensable rating effective November 12, 1958, following the results of a March 1958 VA examination. The veteran's service medical records show that he underwent psychiatric observation in service, with no specific disease found. In an August 1996 rating decision, the RO increased the rating for the veteran's psychiatric disability, now described as dysthymia, chronic with somatizations, to 10 percent effective October 5, 1995, based on evidence from an April 1996 VA examination that showed the veteran to be irritable, ill-humored and talking about being dead. In a March 1997 rating decision, the RO increased the veteran's dysthymia disability rating to 30 percent effective October 5, 1995, based on evidence from an October 1996 VA examination that showed the veteran to be depressed and withdrawn, with a high level of anxiety, and to have moderate dysthymia. This 30 percent rating was continued in a February 1998 rating decision, which is the subject of this appeal. Following the veteran's testimony at a personal hearing before the RO and a December 1998 VA examination, the RO, in a December 1998 Hearing Officer's decision, increased the veteran's psychiatric disability, now described as recurrent major depressive disorder, to 70 percent effective September 12, 1997. The evidence from the hearing and the VA examination showed that the veteran had frequent uncontrolled crying episodes, suicide ideations, poor insight and judgment, and chronic depression. In this same rating decision, the RO granted a temporary 100 percent rating under 38 C.F.R. § 4.29 for the period of August 20, 1998 to September 30, 1998. The evidence shows that the veteran was hospitalized in excess of 21 days during this period following an outpatient psychiatric appointment in which the veteran told the treating physician that he wanted to kill himself. Through this same December 1998 rating decision, the RO reverted the disability rating to 70 percent, effective October 1, 1998, following the completion of the veteran's inpatient psychiatric care. As indicated above, the veteran appeals the 70 percent nervous disorder disability rating, contending that his symptomatology warrants a higher evaluation. After a review of the record, the Board finds that the evidence is against a rating greater than 70 percent for his service connected nervous disorder. See 38 U.S.C.A. § 7104 (West 1991 & Supp. 1999). Service connected disabilities are rated in accordance with the VA's Schedule for Rating Disabilities (Schedule). The ratings are based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. Evaluations are based upon a lack of usefulness in self-support. 38 C.F.R. § 4.10 (1999). 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 for the higher rating. 38 C.F.R. § 4.7 (1999). The Schedule directs that in evaluating the severity of mental disorders under the diagnostic criteria consideration should be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. Ratings shall be based on all the evidence of record as it bears on social and industrial impairment rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. Although social impairment is crucial in determining the level of overall disability, an evaluation may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126 (1999). Under the rating criteria for mental disorders, a 100 percent rating is assigned for 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 name of close relatives, own occupation, or own name. A 70 percent rating is assigned for 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 irritability, with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work-like setting); inability to establish and maintain effective relationships. The most recent VA mental disorder examination of the veteran took place in December 1998. The examination revealed that the veteran is very depressed, cries when talking about himself, frequently talks and thinks about killing himself, has strong feelings of worthlessness, hopelessness and helplessness, and is intolerant, irritable, easily frustrated and ill-humored easily, and has no interests in life. However, the examiner found that the veteran's affect was adequate, he was not delusional or hallucinating, was casually dressed and groomed, and his answers were relevant and coherent. He also had very poor insight and fair judgment and memory. The examiner diagnosed the veteran with recurrent major depressive disorder, and estimated his GAF code as 45-50, equating to serious psychiatric symptoms. Additionally, a private psychiatric report from Samuel Rivera Francis, M.D., from October 1998 supports the findings that the veteran has suicide ideations, cries frequently, has auditory as well as visual hallucinations, gets disoriented, has poor insight, and has no desire for socialization. Dr. Rivera Francis diagnosed the veteran with major recurrent depression with psychotic features, and a GAF code of 21-30, equating to behavior that is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment, or inability to function in almost all areas. The veteran was also examined by VA in October 1997 and January 1998. The January 1998 VA examination reveals that the veteran reported that his nerves were very bad, that he feels sad and sleeps poorly, was irritable and had a bad temper, overworried, stayed at home all day and had no desire to do anything. The examiner found the veteran to have a depressed mood, constricted affect, and fair concentration, memory, insight and judgment. However, the examiner found the veteran to be clean and adequately dressed and groomed, was not homicidal or suicidal, was alert and well oriented, with good attention and impulse control, no hallucinations and clear and coherent speech. The veteran was diagnosed with dysthymia, with a GAF code of 60, for moderate psychiatric symptoms. The October 1997 VA examination revealed much the same psychiatric symptomatology, but also includes evidence of thoughts of killing himself, bizarre dreams of death and auditory hallucinations. The examiner diagnosed the veteran with major depression with mood congruent psychotic features, and a GAF code of 50, which under the DSM-IV equates to serious symptoms or serious impairment in social or occupational functioning. The Board finds that the evidence does not support an rating increase to 100 percent for the veteran's nervous disorder. There is no evidence of gross impairment in thought or communication, despite Dr. Rivera Francis' assessment that the veteran's GAF code is indicative of, among other things, gross impairment in communication. There is also no evidence of grossly inappropriate behavior or inability to perform basic personal hygiene. While, Dr. Rivera Francis reports that the veteran becomes disoriented in place, the VA examiner found the veteran to be oriented to person, place, and time in December 1998, more recently than Dr. Rivera Francis' observations. The Board also notes that the evidence suggests that the veteran has delusions and hallucinations, mostly dealing with suicidal ideations. However, in looking at all the current evidence, the Board finds that the majority of the 100 percent criteria have not been satisfied. Thus, the Board will not increase the current disability rating above 70 percent. The 70 percent rating according to the Schedule does not however preclude the Board from granting higher ratings for this disability. In Floyd v. Brown, 9 Vet. App. 88 (1996), the Court held that the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321 (b)(1) in the first instance. The Board is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the laws and regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321 (b)(1) or from reaching such a conclusion on its own. Moreover, the Court did not find the Board's denial of an extraschedular rating in the first instance prejudicial to the veteran, as the question of an extra schedular rating is a component of the appellant's claim and the appellant had full opportunity to present the increased rating claim before the RO. Bagwell, at 339. Consequently, the Board will consider whether this case warrants the assignment of an extraschedular rating. In exceptional cases where schedular evaluations are found to be inadequate, consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service connected disability" is made. 38 C.F.R. § 3.321 (b)(1) (1999). The Board must find that the case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the Schedule. Id. The Board first notes that the schedular evaluations in this case are not inadequate. A higher rating of 100 percent is assignable when symptoms of mental disorder cause more social and industrial impairment, but the medical evidence reflects that those manifestations are not present in this case. Second, the Board finds no evidence of an exceptional disability picture in this case. The Board acknowledges that the veteran required inpatient hospitalization for dysthymia from August 20th to September 10th of 1998. However, the Board finds that no other evidence of recent inpatient psychiatric treatment, and his psychiatric condition has not had such an unusual impact on his employment as to render impractical the application of regular schedular standards. There is no evidence that the impairment resulting from a nervous disorder warrants extraschedular consideration. Rather, for the reasons noted above, the Board concludes that the impairment resulting from a nervous disorder is adequately compensated by the schedular evaluation assigned. Therefore, extraschedular consideration under 38 C.F.R. § 3.321(b) is not warranted. ORDER Entitlement to an increased rating for a nervous disorder is denied. REMAND The Board notes that a Statement of Accredited Representation in Appealed Case (VA Form 646) was received by the RO on August 9, 1999. It stated, in its entirety: Veteran claim (sic) H/B or A/A due to his physical condition. The veteran's sole service-connected disability is his psychiatric disorder. Consequently, the Board construes this statement to be a Notice of Disagreement (NOD) with the June 1999 rating decision on the issue of entitlement to special monthly pension based on the need for regular aid and attendance or being housebound. The receipt of this NOD is within one year of the July 6, 1999 notification of this rating decision. The RO has not issued a Statement of the Case (SOC) on this issue. In Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Veterans Appeals (now the United States Court of Appeals for Veterans Claims, hereinafter the Court) held that when an appellant files a timely NOD and there is no SOC issued, the Board should remand, rather than refer, the issue to the RO for the issuance of a SOC. To ensure full compliance with due process requirements, the case is REMANDED to the RO for the following action: The RO should review the evidence and prepare a SOC concerning the issue of entitlement to special monthly pension based on the need for regular aid and attendance or being housebound. Thereafter, if the veteran files a timely substantive appeal, the case should be returned to the Board. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. MARY GALLAGHER Member, Board of Veterans' Appeals