BVA9500303 DOCKET NO. 93-04 343 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased disability evaluation for a depressive reaction, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.A. Skow, Associate Counsel INTRODUCTION The appellant served on active duty from May 1941 to July 1943. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a January 1992 rating decision of the Los Angeles, California, Department of Veterans Affairs Regional Office (VARO). CONTENTION OF APPELLANT ON APPEAL The appellant contends that his service-connected depressive reaction disorder is of sufficient severity to warrant an increased disability 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 a disability evaluation in excess of 50 percent for the appellant's service-connected depressive reaction disorder is not warranted. FINDING OF FACT The appellant's depressive reaction disorder is manifested by lethargy, social isolation, anxiety, insomnia, episodic suicidal ideation, absent clinical findings for homicidal ideation, severe obsessional rituals, delusions, hallucinations, and impairment in reality, communication, or judgment. CONCLUSION OF LAW The schedular criteria for a disability evaluation in excess of 50 percent for a depressive reaction disorder are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.20, 4.40, Diagnostic Code 9405 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by VARO and that a disposition on the merits is in order. Background The appellant was service connected for a neurotic depressive reaction disorder in December 1949 at the 50 percent disability level. At that time, his condition was primarily manifested by depression, irritability, sleep disturbance, decreased libido, and suicidal thought. By rating action in June 1955, the appellant's condition was reevaluated as mildly disabling in view of the appellant admittedly feeling better with occasionally "feeling bad," and assigned a 10 percent disability evaluation. By rating action in December 1985, the appellant's psychoneurotic disorder was evaluated as moderately disabling, and assigned a 30 percent disability evaluation. At this time, his condition was manifested primarily by insomnia, irritability, and poor memory, concentration and calculations, productive of considerable industrial impairment. In July 1991, the appellant requested a disability evaluation in excess of the 30 percent assigned for his service-connected depressive reaction disorder. By rating action in September 1992, the appellant was granted a 50 percent disability evaluation for his depressive reaction disorder in view of the following evidence: VA outpatient treatment reports dated April to May 1983 and September 1991, the sworn testimony of the appellant at a personal hearing in June 1992, an undated private medical statement, and a VA examination report dated in July 1992, VA outpatient treatment reports dated in April to May 1983, and in September 1991, reflect complaints of depression which was treated with Xanax. On examination in September 1991, the appellant complained of increased depression since his retirement in 1983, and insomnia, anorexia, and memory loss at times. The appellant was noted to appear alert and oriented. In June 1992, a personal hearing was conducted at VARO. At this time, the appellant submitted an undated private medical statement from Indran Selvaratnam, M.D. The doctor indicated that he treated the appellant for his psychiatric problems from February 1986 to February 1992, and that the appellant suffers from chronic depression manifested by lethargy, social isolation, anxiety, and insomnia. The appellant was noted to have been "refractory to antidepressants," and "incapable of performing any 8 hour job." During the hearing, the appellant testified that he suffers from memory impairment, loss of concentration, fatigue, insomnia, and anxiety. He reported feelings of anger and occasional suicidal thoughts. He further reported loss of interest in social activities and hobbies, and the desire to avoid crowds including his neighbors. The appellant noted that his marriage was strained, although he has been married to the same woman since 1945, and he lacked closeness with family members. With respect to employment, he indicated that he retired as a bus driver in 1983. On VA examination in July 1992, the appellant was reported to be a 75 year old male, married to the same woman since 1945, with three children and numerous grandchildren. By history, the appellant has been anxious and depressed since his discharge the service. He reported working as bus driver for 36 years which he enjoyed tremendously although he has felt as if his mind was deteriorating since his retirement in 1983. The appellant retired after an incident where he was accused of reporting to work drunk when in actuality he had taken one-half a Valium tablet to relieve his nervousness and irritability. The appellant primarily complained of confused thinking and learning difficulty, feelings of anger and shouting at his wife, and frequent depression for which he takes Prozac and Xanax. He further indicated that he spends money he cannot afford to spend. Most the appellant's symptoms were of a depressive and anxious nature with ongoing suicidal ideation which he acted on only once. In the past seven to eight months, the appellant indicated that he has been increasingly withdrawn, isolated, and with little interest in performing minor tasks such as paying the bills. He reported a poor appetite, insomnia, and nightmares although he did not describe flashbacks, startle responses, or things generally associated with post traumatic stress disorder. Clinical findings indicated that the appellant was alert, oriented with a fairly good memory, well groomed, and that he displayed clear and coherent speech. He was noted to have slow speech and a slow walk, as well as concentration difficulties. Clinical findings reflect that the appellant's affect was appropriate and he was not labile. They further reflect that he experienced neither hallucinations or delusions. He was noted to have episodic suicidal ideation, and seldom assaultive ideations. The appellant indicated a desire to be alone, and a preference to stay in bed and hide from the world. Clinical findings noted that the appellant appeared depressed at times although he did not cry. The appellant was diagnosed with chronic dysthymia with possibly cyclothymic features, and mild dementia, pseudo-dementia versus early organic dementia. Analysis The appellant seeks an increased disability evaluation for his service-connected depressive reaction disorder, currently assigned a 50 percent disability rating. In evaluating the appellant's request for an increased rating, the Board considers the medical evidence of record. The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1993). In so doing, it is our responsibility to weigh the evidence before us. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). 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 (1993). All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1993). The Board has carefully reviewed the pertinent medical evidence, including the appellant's entire medical history in accordance with 38 C.F.R. § 4.1 (1993) and Peyton v. Derwinski, 1 Vet.App. 282 (1991), and concluded that the appellant is adequately evaluated for his service-connected depressive reaction disorder at the 50 percent disability level. In order to be granted a 70 percent disability evaluation under diagnostic code 9205, the evidence must show that the appellant's condition has increased in severity resulting in severe impairment of social and industrial adaptability. The objective medical evidence reflects that the appellant has been service connected for a depressive reaction disorder for over 40 years. In that time, the severity of his condition has fluctuated although his complaints are essentially the same. The objective medical evidence is clinically significant for subjective complaints of depression, irritability, sleep disturbance, and occasional suicidal thoughts. On an undated private medical statement, the appellant was deemed unable to engage in a normal 8 hour a day job due to his psychoneurotic disorder. The most recent medical evidence, which includes VA outpatient treatment reports dated in September 1991, a VA examination report dated in July 1992, and an undated private medial statement, reflect that the appellant suffers from depression manifested by memory impairment, insomnia, lethargy, social isolation, anxiety, loss of concentration, and episodic suicidal ideation. Clinical findings were negative for impairment in reality, communication, or judgment, and there was no evidence of delusions, hallucinations, or homicidal ideation. Overall, the appellant was alert and oriented, and appeared well groomed on VA examination in July 1992. In view of the above and the testimony of the appellant, the Board finds that the evidence of record more closely approximates the 50 percent disability level associated with considerable social and industrial impairment. Accordingly, a disability rating in excess of the 50 percent evaluation currently assigned is not warranted. ORDER An increased rating for a depressive reaction disorder is denied. C.P. RUSSELL 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.