BVA9502353 DOCKET NO. 92-01 490 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an increased rating for anxiety with depression, currently evaluated as 50 percent disabling. 2. Entitlement to a total compensation rating based on the provisions of 38 C.F.R. § 4.16(c). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Richard F. Williams, Counsel INTRODUCTION The veteran served on active duty from December 1948 to February 1965. This matter originally comes before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Buffalo, New York, Regional Office (RO). An August 1989 RO decision reduced the rating for the veteran's service-connected anxiety with depression from 50 percent to 30 percent disabling. The veteran testified at a hearing conducted at the RO in August 1990. Hearing officer and RO decisions shortly thereafter restored the 50 percent rating for his anxiety with depression. The veteran submitted a statement in October 1991, indicating continued disagreement with the 50 percent rating. The case was received and docketed at the Board in March 1992. In a remand entered in February 1993, the Board found that written arguments submitted in support of the veteran's appeal raised a claim for a total compensation rating based on individual unemployability. The Board requested additional development and, thereafter, adjudication of the increased and total compensation rating claims. The purposes of the remand were accomplished and the case was returned to the Board in November 1994. In light of the favorable decision that follows, the provisions of 38 C.F.R. § 4.16(a) (1993) are not for application and issue number two is as stated. CONTENTIONS OF APPELLANT ON APPEAL It is contended on behalf of and by the veteran, in essence, that his service-connected anxiety with depression is more disabling than currently evaluated and precludes all forms of substantially gainful employment. 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 supports the claim for an increased rating to 100 percent for anxiety with depression. FINDINGS OF FACT 1. The veteran's service-connected psychoneurotic disorder is productive of severe social and industrial impairment. 2. The veteran has an eighth grade education and employment experience as a bus driver; he last worked in January 1980; his sole service connected disability is anxiety with depression. 3. His service-connected disability precludes all forms of substantially gainful employment. CONCLUSION OF LAW The requirements for a 100 percent rating for anxiety with depression have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.16(c), 4.130, 4.132, Code 9400 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran served on active duty from December 1948 to February 1965. The service medical records show that he was hospitalized beginning in December 1964 for anxiety reaction. He was referred to the Physical Evaluation Board and discharged from service because of mental illness shortly thereafter. Following a VA psychiatric examination of the veteran in April 1965, it was concluded that his anxiety reaction with situational depressive reaction was not productive of any social or vocational adjustment impairment. An RO decision in April 1965 granted service connection and assigned a noncompensable rating for anxiety reaction. Following a VA psychiatric examination of the veteran in March 1981, an RO decision in May 1981 increased the rating for his anxiety reaction from noncompensable to 30 percent. Following a VA psychiatric examination in February 1983, an RO decision in April 1983 decreased the rating from 30 percent to 10 percent. Additional VA clinical records show that the veteran was seen on numerous occasions from 1983 to early 1984 and, in a decision entered in February 1984, the RO restored the 30 percent rating for his psychoneurotic disorder (rated as anxiety with depression). Additional VA clinical records show that the veteran continued to be evaluated and treated for anxiety with depression in 1984 and 1985. It was opined following a hospitalization for psychiatric treatment in February 1984 that he was unemployable. It was opined following a psychiatric examination in March 1985 that he appeared incapacitated vocationally. An RO decision in May 1985 increased the rating for his psychoneurotic disorder from 30 percent to 50 percent. A decision of an Administrative Law Judge (ALJ) with the Social Security Administration (SSA) in 1988 shows that the veteran was awarded disability benefits with an onset date of January 18, 1980. His primary diagnosis was severe depressive neurosis. Secondary diagnoses were chronic obstructive pulmonary disease (COPD) and coronary artery disease with triple-vessel coronary artery bypass surgery. Private and VA clinical records dated in the 1980's, which were utilized in making the determination, were submitted by the SSA and are on file. A review of that documentation, which consists primarily of duplications of records summarized above, shows that the veteran was seen on numerous occasions during the 1980's for his psychiatric and medical disabilities. The SSA ALJ found that the veteran was unable to work based on his combined medical and psychiatric impairments. It was noted that his psychiatric condition would preclude his ability to perform sustained employment. It was further noted that he could not follow routines or supervisory instructions or work effectively in a routine setting for eight hours per day. It was also noted that there had been no medical improvement regarding his psychiatric and medical conditions. Additional VA clinical records, dated from 1986 to 1989, show that the veteran was evaluated and treated for several medical and psychiatric disorders during that time. He was hospitalized in September 1986 for coronary artery disease and underwent coronary artery bypass graft surgery. Additional testing included pulmonary function studies. His discharge diagnoses also included emphysema and degenerative joint disease. He was seen on numerous subsequent occasions for follow-up for his heart disease. The veteran underwent a VA psychiatric examination in July 1989. It was reported at that time that he had been unemployed since 1980 because of multiple medical and psychiatric problems. It was noted that he was receiving psychiatric treatment at a VA outpatient clinic, including antianxiety medication. The psychiatrist concluded that the veteran's anxiety disorder with depression was productive of socioeconomic functional impairment. The veteran testified at a hearing conducted at the RO in August 1990. He said that he was being followed by a psychiatrist on an outpatient basis and on medication for his nerves. He stated that he was depressed 3 to 4 times a week and unable to drive a car. He indicated that he did not have much of a social life. His hobbies consisted of watching TV, vacuuming, and reading. He said that he talked to neighbors once in a while. He described crying spells. He also expressed dissatisfaction with his most recent VA compensation examination. He added that he had been nervous about the hearing. It was observed that he was on Clorazepate, 3.75 mg., prescribed by his VA psychiatrist. The veteran underwent a VA psychiatric examination in October 1990. It was noted that he was extremely preoccupied and depressed because he was told by his doctor that, if he did not respond to his heart medications, he would need surgery again, and he did not feel he could "take it." He complained of difficulty sleeping and became easily upset over minor issues. His ability to cope was very poor. On examination, he appeared very anxious and excessively depressed. He cried intensively during the interview. He was preoccupied with death and entertained suicidal ideation. He also said several months ago that he was very close to cutting his wrists. He reported no desire for a social life and preferred to stay home. The psychiatrist concluded that the veteran continued to be very anxious, and his coping mechanism appeared to be deteriorating further and, above all, the depressive component of his illness had increased significantly as compared to past evaluations. The diagnosis was anxiety disorder with depression productive of severe social and vocational impairment. Additional VA clinical records, dated from September 1990 to January 1993, are on file. A review of this documentation shows that the veteran was seen on several occasions for his medical disabilities. His complaints included chest pain and shortness of breath. He was also evaluated and treated for severe anxiety and depression. A document from a United States Bankruptcy Court shows that the veteran filed for bankruptcy in April 1993. The veteran underwent a VA psychiatric examination in May 1993. It was noted that he continued to see a psychiatrist once every 1 or 2 months and remained on antianxiety medication. He said that he felt shaky and on edge all of the time, had difficulty sleeping, felt depressed, and was overwhelmed and worried about financial problems and his health. He was very upset because he had to file for bankruptcy. He also worried a great deal about his heart and lung conditions. Since his last evaluation in October 1990, he had undergone major stresses in his life, such as the death of his wife, a car accident, and the impending death of a niece to whom he was very close and who was dying from cancer. He felt very angry and irritable and did not tolerate being around people and, therefore, spent most of his time in his home where he lived alone. He suffered from crying spells and loss of interest. He expressed death wishes and occasional suicidal ideation, but no intentional plan was elicited. Objectively, it was noted that he was polite and cooperative, but very tense, anxious, restless, and tearful. He displayed a sad expression on his face. His speech was coherent and relevant. His affect was anxious and depressed. It was noted that he had lost about 16 pounds because he sometimes did not care to cook on account of his depression. He did not show evidence of delusions or hallucinations. His thought content was dominated by the loss of his wife, worries over his health, and the impending death of his niece. The diagnoses were generalized anxiety disorder and major recurrent depression. The psychiatrist added that the veteran continued to suffer from severe anxiety and depression, now exacerbated by stressful life events noted above. The veteran underwent a VA social and industrial survey in May 1993. His history remained essentially unchanged. It was again noted that he was still adjusting to the death of his wife and cried easily when talking about her. He described social withdrawal, sleep disturbance, and poor appetite. He also noted economic problems, including recently filing for bankruptcy. The assessment was that the veteran appeared to be tense, anxious and sad. It was also noted that he was friendly and cooperative and able to talk about his present living situation in great detail. It was the examiner's view that the veteran's socioeconomic functioning had continued to deteriorate due to his physical condition, and it was noted that he was still adjusting to the death of his wife, but managing to take care of his basic needs. II. Analysis The Board initially finds that the veteran has presented well- grounded claims within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented claims which are not inherently implausible. The relevant evidence has been obtained by the RO, and there is no further duty to assist the veteran in developing facts pertinent to his claims. Id. A. Increased Rating for Anxiety With Depression Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. A psychoneurotic disorder, including anxiety and depression, productive of considerable social and industrial impairment warrants a 50 percent evaluation. Severe social and industrial inadaptability is rated 70 percent. Virtual isolation in the community with totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in a profound retreat from mature behavior, and with a demonstrated inability to obtain or retain employment, warrants a 100 percent evaluation. 38 C.F.R. § 4.132, Code 9400. In reviewing the record, it becomes evident that the veteran's anxiety with depression remains symptomatic and productive of significant functional impairment. The psychiatrists who have examined him in recent years have indicated an increase in psychoneurotic symptomatology and have classified his overall social and industrial impairment as severe. While an examiner's classification is not determinative of the degree of disability, the report and analysis of the symptomatology and a full consideration of the whole history will be. 38 C.F.R. § 4.130. It is my judgment that the symptoms that have been reported by the examining psychiatrists are consistent with the assessment of severe functional impairment. In support of this conclusion, I note clinical evidence in recent years of persistent and increasingly significant episodes of anxiety and depression with apparent thoughts of suicide, social withdrawal, and sleep disturbance. In reviewing the applicable rating criteria, I find that a 70 percent rating is indicated for severe social and industrial inadaptability. Accordingly, an increased rating to 70 percent for the veteran's anxiety with depression is warranted. B. A Total Compensation Rating Based on the Provisions of 38 C.F.R. § 4.16(c) Since the veteran's only service-connected disability is a mental disorder, now rated 70 percent, if the evidence shows that his mental disorder precludes him from securing or following a substantially gainful occupation, his mental disorder shall be assigned a 100 percent schedular rating. 38 C.F.R. § 4.16(c). Thus, the remaining issue is whether his psychoneurotic disorder would now preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"; Ferraro v. Derwinski, 1 Vet.App. 326, 332-3 (1991). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A higher rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993). The veteran reportedly has not been able to engage in substantially gainful employment since 1980 and, as discussed above, his service-connected psychoneurotic disorder has increased in severity and is now productive of severe social and industrial inadaptability. Given his limited education and employment experience, it is clear that his anxiety with depression would limit his employment options. Although he was a bus driver for many years, he is now afraid to drive and limits himself to short trips. The issue of whether his psychoneurotic disorder alone precludes all forms of substantially gainful employment is not as clear. I note that his psychoneurotic symptoms are not totally incapacitating in nature. He remains well oriented with an intact memory. I find no suggestion of delusional behavior or any cognitive deficit. However he has not worked since 1980 and has been in receipt of disability benefits from SSA for almost as many years. While it is true that there are some principal differences between the SSA concept of unemployability and that of VA (See Murincsak v. Derwinski, 2 Vet.App. 363 (1992); Collier v. Derwinski, 1 Vet.App. 413 (1991)), it is evidence in support of the veteran's claim. I further note that he recently filed for bankruptcy. As discussed above, there is evidence that he has persistent episodes of anxiety and depression that have increased in severity and significant social withdrawal is evident. It is noteworthy that both a psychiatrist and a social worker who have evaluated the veteran in recent years have described his condition as "deteriorating". The veteran has significant non-service-connected disabilities. Specifically, he has undergone coronary artery bypass surgery, which would obviously have an adverse impact on employment. He also has a history of chronic lung disease and degenerative arthritis. These non-service-connected disabilities may not be considered here and it is evident that his heart and lung disorders were factors in his being found to be disabled by SSA. However, it was also determined by the SSA ALJ that his primary disability was a psychoneurotic disorder. While the present level of psychiatric disability is of primary concern (See Francisco v. Brown, 7 Vet.App. 55, 58 (1994), it is interesting to note that it was opined on two occasions by psychiatrists as early as the mid-1980's that the veteran was unemployable. In any event, the psychiatric disability picture that emerges in more recent years is one that is deteriorating in nature and, in my view, would in all probability preclude him from securing or following a substantially gainful occupation, within the meaning of the cited law and regulation. Accordingly, under 38 C.F.R. § 4.16(c), a 100 percent rating is warranted. ORDER An increased rating to 100 percent for anxiety with depression is granted. J. E. DAY 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.