BVA9501744 DOCKET NO. 93-09 025 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to an increased evaluation for a generalized anxiety disorder, currently rated 70 percent disabling. 2. Whether new and material evidence sufficient to reopen a claim of entitlement to service connection for a back disorder has been submitted. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant, his spouse, and a friend ATTORNEY FOR THE BOARD Charles G. Sener, Associate Counsel INTRODUCTION The appellant had active service from August 1944 to January 1946. In an October 1965 rating decision, the Department of Veterans Affairs (VA) Des Moines, Iowa, Regional Office (RO) denied a claim of entitlement to service connection for a back disorder. The appellant received notification of that rating decision in October 1965, and he did not file a notice of disagreement with that rating decision. Therefore, the October 1965 rating decision became final in October 1966, one year after the VA's notification to the appellant of that rating decision. A May 1990 Board of Veterans' Appeals (Board) decision denied service connection for a back disorder by concluding that the October 1965 rating decision was final and that new and material evidence had not been submitted to establish a new factual basis warranting a grant of service connection. This matter comes before the Board on appeal from a November 1990 rating decision of the RO which denied a claim of entitlement to service connection for a back disorder and denied an increased evaluation for a generalized anxiety disorder. The appellant continued his appeal as to the evaluation for his generalized anxiety disorder even through a March 1992 rating decision that granted a 70 percent disability rating for that disorder. CONTENTIONS OF APPELLANT ON APPEAL The appellant avers that his generalized anxiety disorder is more disabling than currently evaluated, and he has required intermittent hospitalization for treatment. He avoids interacting with people, has difficulties around crowds, and is easily agitated. The appellant also maintains that his back was injured in service during a German aircraft attack on his truck convoy. He claims that he injured his back when he was pushed off of a truck and he landed on his back. He suffered a gunshot wound to his right thigh during that incident, and he asserts that because he was more concerned about receiving treatment for the gunshot wound, his back injury was overlooked. 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 appellant'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 more nearly approximates an evaluation of 100 percent for a generalized anxiety disorder. It is also the decision of the Board that new and material evidence sufficient to reopen a claim of entitlement to service connection for a back disorder has been submitted. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the agency of original jurisdiction. 2. The appellant's vocational, cognitive, and social functioning are markedly impaired, and he exhibits a chronic and pervasive sense of anxiety, poor anger control, intermittent dependency, occasional suicidal tendencies and social isolation. 3. The RO denied service connection on the merits for a back disorder in an October 1965 rating decision, which became final when the appellant did not file a notice of disagreement within one year after receiving notification thereof. 4. The additional evidence received since the October 1965 rating decision, the last final decision on the merits, includes an October 1990 statement describing the appellant's back problems in 1946, 1947, and 1948. CONCLUSIONS OF LAW 1. The schedular criteria for a generalized anxiety disorder disability evaluation of 100 percent are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.132, Diagnostic Code 9400 (1994). 2. The evidence subsequently received since the October 1965 rating decision that denied service connection for a back disorder is new and material, and the claim for that benefit is reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.302(b), 20.1103 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented a well-grounded claim. The facts relevant to this appeal have been properly developed, and the obligation of the VA to assist the appellant in the development of the claim has been satisfied. Id. Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate rating codes identify the various disabilities. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. § 4.2 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (1994). 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 (1994). A 70 percent evaluation is warranted for a generalized anxiety disorder when the ability to establish and maintain effective or favorable relationships with people is seriously impaired and when there are psychoneurotic symptoms of such severity and persistence that there is pronounced impairment in the ability to obtain or 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. The individual has 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 resulting in a profound retreat from mature behavior. The individual must be demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9400 (1994). I. Generalized Anxiety Disorder Review of the appellant's service medical records reveals that, in April 1945, he was diagnosed as having a mixed type psychoneurosis, anxiety, and moderate reactive depression (battle reaction). A March 1949 rating decision granted service connection for his psychoneurosis. Evidence considered by the March 1992 rating decision included VA outpatient medical reports from June 1991 to December 1991 and a January 1992 VA medical examination. A June 1991 VA medical report indicated that the appellant had experienced a CVA (cardiovascular accident) in May 1991, with aphasia being the primary symptom. It was reported that prior to his CVA he had been followed by the VA mental health clinic for dysphoria, irritability, and angry outbursts. A July 1991 VA mental health clinic record indicated that the appellant was "pretty discouraged, hopeless, dysphoric," and that he had to postpone a speech therapy session due to increased anxiety. He verbalized feelings of worthlessness due to his lack of physical abilities, and he had entertained suicidal fantasies of "using his car in the garage." The physician strongly recommended inpatient hospitalization but the appellant refused. His medications at that time included Clonopin, trazadone, and Prozac. The physician recommended that the appellant return in one month. An August 1991 VA mental health clinic record showed that the appellant was not as depressed as the last visit and that he had not entertained suicidal thoughts in the last two weeks prior to that visit. The physician reported that the appellant's affect remained flat but that he was more verbal and that they had had a lengthy supportive session. No change in medications was noted, and the physician recommended that the appellant return in two months. In an October 1991 VA mental health clinic record, the physician noted that the appellant remained "depressed, affect extremely flat, sad." It was reported that he had no motivation and that he could not tolerate a visit with his family because he felt irritable around too many kids. He stated that he had nightmares about the war and that his sleep was disturbed. The physician noted that the appellant was not sleeping well with 300 mg of trazadone but that Clonopin helped with his anxiety. The physician recommended the following changes in the appellant's medications: discontinue Prozac, continue Clonopin, decrease trazadone by 50 mg per week, and start nortriptyline. At a January 1992 VA medical examination, it was reported that the appellant had been the recipient of inpatient psychiatric treatment for depressive symptoms and suicidal ideation and that he was under the care of a VA psychiatrist who had recommended hospitalization for self-injurious behavior. The physician noted that the appellant's tendency to self-mutilate by cutting or scratching his wrists, shoulder, and stomach began three or four years prior to that medical examination. It was disclosed that he had considered suicide by means of an automobile accident and carbon monoxide, a combination of morphine and alcohol, and an attempt to cut his throat with a knife in the presence of his wife and daughter. The appellant's employment history was described as "fragmented and problematic due to the mental and physical effects of his wartime experience." The physician indicated that the results of a recent stroke exacerbated the long-lasting effects of the appellant's wartime experiences. Physical manifestations reported at the January 1992 VA medical examination included headaches, nausea, vertigo, and tremors. Other symptoms included a deep sense of despondency/despair, an inability to tolerate environmental stimulation, a disrupted sleep pattern, pervasive feelings of guilt, remorse and hopelessness, inability to manage anger, and self-isolation. No signs of psychoses were noted and the diagnostic impression was post-traumatic stress disorder (PTSD), and a personality disorder, NOS, with passive-aggressive, borderline, and dependent features. The physician considered the appellant's vocational, cognitive, and social functioning to be markedly impaired. It was opined that the appellant's longstanding deficits in social, occupational, behavioral, and emotional well-being were associated with PTSD and that subsumed under the rubric of that disorder were his chronic and pervasive sense of anxiety, poor anger control, intermittent despondency, and social isolation. Furthermore, the passive-aggressive, borderline and dependent aspects of his personality were also considered to be the result of attempts to cope with the severe trauma of his wartime experience. The physician also recommended that the appellant seek inpatient treatment as needed to address his intermittent feelings of depression and suicidal ideation. The appellant was hospitalized at a VA medical facility for his generalized anxiety disorder from March 10, 1992, to March 20, 1992. His discharge summary, which gave a history of his present illness, showed that he had complained of depressed mood, anhedonia, and crying spells. A mental status examination included in the discharge summary showed that the appellant appeared to be on the verge of tears on some occasions and that his mood was depressed with blunted affect. There were no grandiose delusions reported, and the appellant denied any present suicidal or homicidal ideation. It was noted that the appellant was competent but that he was not employable. At discharge, he was instructed to receive follow-up care at the VA mental health clinic. An April 1992 VA mental health clinic record showed that the appellant complained that he was "not doing the best." He reported that his sleep was restless and that he was both uncomfortable and depressed since the recent visit of his grandchildren. He stated that he had contemplated suicide once since his discharge from the VA hospital in March 1992. At a May 1992 personal hearing, the appellant testified that he goes to the VA mental health clinic monthly. He reported that he had sleep problems and that he could only sleep a couple of hours at a time. He also stated that sharp noises bothered him and that he was bothered by crowds of people. His wife testified that the appellant appeared more nervous and that "he gets worse." The appellant was hospitalized at a VA medical facility from July 13, 1992, to August 15, 1992, with a diagnosis of organic mood disorder, depressed, and PTSD. An August 1992 VA discharge summary disclosed that the appellant had crying spells and that he had complained of decreased concentration. A mental status examination performed during the hospitalization indicated that his affect was blunted and that his mood was depressed. He reported that he heard the voice of his deceased first wife inside his head. The physician noted that the appellant had "vague, paranoid ideation," and had indicated that he was annoyed by cars that turn around in front of his house at night. There were no grandiose delusions mentioned, but the appellant described thought broadcasting. Review of the discharge summary reveals that the appellant initially did not have good attendance at his inpatient psychology groups and that he was resistive to interaction. His attendance improved during the latter part of his hospitalization. At discharge, he was instructed to receive follow-up care at the VA mental health clinic. At a September 1992 personal hearing the appellant and his representative presented a medical statement from K. A. Garber, M.D., dated in September 1992, that indicated that the appellant's main disabling factor was "agitative depression." The appellant testified that his "nerves" were getting really bad to the point that he could hardly stand to ride with anybody. He stated that he would walk the floor, did not sleep, was "up and down," and just sat and smoked. His wife testified that he was more ill-tempered and harder to get along with. She stated that he complained of headaches and pain in his legs, and that he did not want to "get out and walk or anything like that." A VA "PTSD Evaluation" medical record report, dated in September 1992 and prepared by a social worker, disclosed that the appellant was unable to function in crowds and that he felt threatened by being around large numbers of people. The report reflected that the appellant experienced hypervigilance, sleep disturbance, nightmares, and exaggerated startle response. It was opined that the appellant had socially isolated himself and that he had withdrawn from any significant contact with other people or society. The examiner reported that the appellant described a feeling of detachment from others and that he was unable to have love feelings, even for his wife and children. After careful and longitudinal review of the evidence presented in this case, the Board notes that the appellant's vocational, cognitive, and social functioning are markedly impaired, and he exhibits a chronic and pervasive sense of anxiety, poor anger control, intermittent dependency, and social isolation. The board finds that the appellant's generalized anxiety disorder so adversely affects him as to result in virtual isolation in the community and that his vocational functioning is markedly impaired. He has required recent hospitalization and has exhibited suicidal tendencies. Thought broadcasting has been noted. After applying the rating criteria found under Diagnostic Code 9400, the Board determines that the appellant's disability picture more nearly approximates the criteria required for a 100 percent disability evaluation. Therefore, the Board finds that a 100 percent evaluation is warranted for his service-connected generalized anxiety disorder. II. Back Disorder The appellant is seeking service connection for a back disorder. In an October 1965 rating decision, the agency of original jurisdiction denied service connection for a back disorder on the merits. The appellant was notified of the rating decision by letter dated October 6, 1965. He did not file a notice of disagreement within one year of that notice. Therefore, the decision became final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302(b), 20.1103 (1994). However, the law and regulations allow for reopening a claim, even if finality has attached, if new and material evidence has been submitted. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). The evidence to be analyzed as to whether "new and material" evidence has been submitted is all of the evidence received since the last final decision on the merits. Glynn v. Brown, 6 Vet.App. 523 (1993). New and material evidence is evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1994). "New" evidence is not that which is merely cumulative of other evidence on the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). "Material " evidence is evidence that "is relevant and probative of the issue at hand." Id. When evidence is "material," it means there is a reasonable possibility that consideration of the new evidence, when viewed in the context of all the evidence, would change the outcome. This does not mean that the claim will always be allowed, just that the case will be reopened and the new evidence will be considered in the context of all the other evidence for a new determination of the issues. Smith v. Derwinski, 1 Vet.App. 178, 179-80 (1991). Evidence considered by the RO in October 1965 consisted of service medical records, reports of VA examinations, VA medical records, and various statements made by the appellant. A November 1945 service medical record showed that the appellant was hospitalized for pain in the right side of the abdomen that had begun in the right side of his back. After evaluation, it was felt that he had pulled a muscle in the right iliac area. A January 1946 report of physical examination prior to discharge from service indicated a normal physical examination with the exception of acne and a scar on the right thigh resulting in a rupture of the fascia lata muscle about 4 cm. in diameter. A December 1948 VA physical examination revealed no complaints of a back disorder and showed that all joints were freely movable with no swelling, tenderness, or crepitation. A December 1949 VA physical examination indicated that the spinal alignment was good, that he stooped well, that there were no points of tenderness, and that there was no evidence of fixation. At a December 1954 VA medical examination, the appellant had no complaints of a back disorder, and evaluation of the musculoskeletal system revealed that spinal alignment was good, that he stooped well with no evidence of fixation, and that both lateral and rotary movements were normal. A July 1964 VA clinical record showed that the appellant was admitted to the hospital with complaints of low back pain. On admission, the provisional diagnosis was a herniated nucleus pulposus at the L5-S1 level. On July 8, 1964, surgery was performed and a herniated nucleus pulposus was removed from the L4-L5 level (the L5-S1 level was normal). An April 1965 VA hospital summary indicated that the appellant was admitted to the hospital with pain centered in the mid-portion of the lumbosacral area, with radiation over the gluteal area, down the left posterior aspect of the thigh and leg. An exploratory laminectomy was performed on April 30, 1965, and a herniated nucleus pulposus was excised from the L4-L5 and L5-S1 levels on the left side. Among several statements submitted as evidence by the appellant since the October 1965 rating decision are two statements from [redacted], a former employer of the appellant. The initial statement from Mr. [redacted], dated in November 1965, indicates that the appellant had "trouble with his back" when he worked at his ([redacted]') service station in November and December of 1950 and from March to May of 1952; while a second statement from Mr. [redacted], received more than 24 years later, in October 1990, references the appellant as having worked at the service station in 1946, 1947, and 1948, and describes the appellant's back as "bad then." In determining [whether evidence is new and material to reopen a claim], the credibility of the evidence is to be presumed. This presumption is made only for the purpose of determining whether the case should be reopened. Once the evidence is found to be new and material and the case is reopened, the presumption that it is credible and entitled to full weight no longer applies. In the adjudication that follows the reopening, the Board . . . then must determine, as a question of fact, both the weight and credibility of the new evidence in the context of all the evidence, new and old. Justus v. Principi, 3 Vet.App. 510, 513 (1992). After reviewing the evidence presented since the October 1965 rating decision, the Board finds that it contains evidence that must be considered in order to fairly decide the merits of the claim, specifically, the October 1990 statement from [redacted] that described the appellant as having had a bad back in 1946, 1947, and 1948, when he worked at [redacted]' service station. Therefore, the Board concludes that there has been evidence submitted since the October 1965 rating decision that is new and material. ORDER A rating of 100 percent is granted for the appellant's generalized anxiety disorder, subject to the law and regulations governing the award of monetary benefits. New and material evidence has been submitted to permit reopening a claim of entitlement to service connection for a back disorder. REMAND Finding that new and material evidence has been submitted to permit reopening of the appellant's claim of entitlement to service connection for a back disorder, the Board must now determine whether this case is ready for appellate consideration. We note that the RO, in its November 1990 rating decision did not review this claim on the merits. Rather, that rating decision only determined that there was no new and material evidence with which to reopen the previous claim that had become final. Because the claim is reopened and must be adjudicated on the merits, the Board believes the RO must be afforded the chance to do so, in order that the appellant not be prejudiced. Bernard v. Brown, 4 Vet.App. 384, 394 (1993). Accordingly, the claim is remanded to the RO for the following action: The RO should review the merits of the appellant's claim de novo with regard to both the weight and credibility of the additional evidence submitted in the context of all the evidence, new and old, and with consideration of the Court's decision in Miller v. Derwinski, 3 Vet.App. 201 (1992) and the provisions of 38 U.S.C.A. § 1154(b) (West 1991) and 38 C.F.R. § 3.305(c) (1994). If this benefit sought on appeal remains denied, a supplemental statement of the case should be furnished to the appellant and his representative. They should be afforded a reasonable period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The purpose of this REMAND is to ensure that the appellant is afforded due process of law. No opinion, either legal or factual, is intimated as to the merits of the appellant's claim by this REMAND. He is not required to undertake any additional action until he receives further notification from the VA. BETTINA S. CALLAWAY 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 so assigned. 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).