Citation Nr: 0006304 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 97-20 099A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a compensable disability evaluation for anxiety disorder, not otherwise specified. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nancy R. Kegerreis INTRODUCTION The veteran served on active duty from September 1969 to March 1972, August 1973 to September 1976, and January 1981 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) from a June 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied a compensable evaluation for the veteran's service-connected psychiatric disorder. This case was remanded by the Board in March 1999 for additional due process and evidentiary development. Since the RO has substantially complied with the remand requests, the case is once more before the Board. FINDING OF FACT The veteran's anxiety disorder, not otherwise specified, is manifested only by a slight impairment of judgment and insight and subjective symptoms that do not interfere with occupational or social functioning. CONCLUSION OF LAW The criteria for a compensable disability evaluation for anxiety disorder, not otherwise specified, have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 4.130, Diagnostic Code 9413 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran's service medical records mention only one instance of an anxiety disorder. In October 1975, the veteran was seen at a mental health clinic with symptoms of headaches, anxiety, and insomnia, secondary to work tensions. He was given a diagnosis of adult situational reaction with depressive features. Subsequent records, including a separation examination in July 1982, do not refer to a neuropsychiatric disorder. A VA examination report in May 1994 related subjective symptoms of erratic sleep, decreased concentration, decreased energy, and increased appetite. The veteran stated that he was forgetful and had few friends. He reported being angered easily and having an explosive temper, as well as nightmares and flashbacks to traumatic events during military service. Mental status examination revealed that the veteran was in no acute distress, was cooperative, and attentive. He showed good eye contact, good rapport, and good hygiene. His speech was normal in rate, tone, and volume, and his affect was appropriate and full in range. His thought process was goal directed, with no loose association or flight of ideas. Thought content was without suicidal or homicidal ideation and without auditory or visual hallucinations. He was cognitively alert and oriented. Memory and concentration were good; judgment and insight were fair. Diagnoses were depression, not otherwise specified, and alcohol abuse in remission. In an October 1994 rating decision, service connection was granted for an acquired psychiatric disorder, termed on the rating sheet as adult situational condition with depressive features with headaches. It was assigned a noncompensable evaluation. In November 1996, the veteran sought an increased evaluation for "delayed situation anxiety." The RO requested his medical treatment records. An April 1997 psychiatry mental health clinic note shows that the veteran complained of headaches increasing in intensity and frequency for three months and of short-term memory problems for five months. He reported that headaches were exacerbated by stress. He reported feeling persecuted by his spouse and denied suicidal ideation for the past four years and denied homicidal ideation. He was clean and appropriately dressed, and his affect was generally appropriate. His mood was depressed, but there were no signs or symptoms of a thought disorder. There were no hallucinations or delusions, and no deficits in memory or knowledge. There was no impairment of insight. The Axis I diagnosis was PTSD, and the Axis V Global Assessment of Functioning (GAF) was 90. Subsequent VA outpatient mental health clinical records disclose counseling for depression, marital difficulties, and memories of traumatic incidents until August 1997. The veteran reported that he was working two jobs. In February 1999, the veteran was seen in primary care. Problems addressed included depression/PTSD. It was noted that the veteran had not been seen in the mental health clinic since August 1997, but that he agreed to go. He said he was not doing too bad and was dealing with it on his own. In May 1999, the veteran underwent a VA psychiatric examination, during which he related traumatic incidents experienced as a military policeman and fireman. He stated that he had been treated by a private psychiatrist, but without medication at that time. He admitted to a remote history of suicidal thoughts, but denied attempts to harm himself. He had abused alcohol as recently as the 1980s, but stated that he had not been treated for alcohol abuse. He reported that he currently took "nerve medicine." A mental status examination found the veteran well developed, well nourished, appropriately dressed, and adequately groomed, with no unusual motor activities. Speech was spontaneous and fluent, with no flight of ideas or looseness of association. Mood was calm and relaxed. There was no outward evidence of anxiety. Affect was pleasant and consistent with mood. He denied hallucinations, expressed no identifiable delusions, and denied homicidal or suicidal thoughts. He was found precisely oriented to person, place, situation, and time. Remote and recent memory were adequate. He did not exert sufficient effort for test of immediate recall. Insight was fair. With regard to his occupational and social impairment, based on current history and mental status examination, he exhibited only slight impairment. Because current impairment was so slight, the examiner was unable to determine which of his symptoms and/or social occupational impairment were secondary to a situational condition with depressive features as opposed to nonservice-connected condition, such as PTSD with dysthymia. The diagnosis was PTSD, with an estimated GAF of 75. The RO thereafter returned the veteran's claims file to the medical center for completion of testing and clarification/confirmation of diagnosis. In July 1999, psychological testing was accomplished. The examiner noted that his interpersonal manner was polite and cooperative and that he was in no apparent distress. He reported that he currently worked as a fire fighter full time and did some landscaping work part time. Upon completion of testing, the psychologist stated that the test results failed to provide clear support for a diagnosis of PTSD. Additionally, the profile on the Minnesota Multiphasic Personality Inventory (MMPI-II) was invalid, possibly due to an attempt to exaggerate symptoms. Although the veteran reported severe levels of current depressive and anxious symptoms, this was suspicious in light of his very high functioning level. Moreover, his affect during the testing session was calm and cooperative. In August 1999, the psychiatric examiner, having reviewed the results of psychological testing, corrected certain facts in his prior examination report and revised his diagnosis from PTSD to anxiety disorder, not otherwise specified, with a GAF of 75. In a subsequent (September 1999) rating decision, the RO changed the diagnosis coded on the rating sheet to that given by the examiner. II. Legal Analysis The veteran has presented a well-grounded claim for an higher disability evaluation for anxiety disorder, not otherwise specified, within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A claim that a condition has become more severe is well grounded where the condition was previously service connected and rated and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the prior rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The RO has obtained the veteran's treatment records and has accorded him examinations in compliance with the directions of the remand, and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Disability evaluations are administered under the Schedule for Rating Disabilities, 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. Bierman v. Brown, 6 Vet. App. 125, 129 (1994). In evaluating a disability, the VA is required to consider the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; Dinsay v. Brown, 9 Vet. App. 79, 85 (1996). Although the Board must consider the whole record, 38 C.F.R. § 4.2 (1999), where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. Therefore, those documents created in proximity to the recent claim are the most probative in determining the current extent of impairment. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Under 38 C.F.R. § 4.130, Code 9413, a 30 percent evaluation is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss,(such as forgetting names, directions, recent events). A 10 percent evaluation is warranted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or when symptoms are controlled by continuous medication. If a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication, the disorder is noncompensable. In terms of the degree of the veteran's social and industrial impairment, the Board has considered whether his recent and current symptomatology may, in fact, equate either to a 30 percent evaluation or a 10 percent evaluation under the above rating formula. As to a 30 percent evaluation, the evidence fails to show that the veteran's work efficiency has been decreased by intermittent periods of inability to perform occupational tasks. He has revealed no outward evidence of depressed mood, anxiety, suspiciousness, panic attacks, or mild memory loss on repeated examination and testing, but has consistently conveyed a pleasant and relaxed demeanor. As to a 10 percent disability level, he had not been observed to have been under significant stress at any time, nor was there any clear evidence that his symptoms were controlled by continuous prescribed medication. On the contrary, examiners noted that he not only worked full time as a fireman, but had part-time employment in landscaping. The evidence, taken in its totality, thus reveals that the veteran has been functioning at a very high level. Although a mental condition has formally been diagnosed and may indeed have been symptomatic in the remote past, current symptomatology is so slight as to impose little or no occupational or social impairment. Accordingly, the Board finds that the preponderance of the evidence is against a compensable evaluation for anxiety, not otherwise specified. The Board has considered the doctrine of benefit of doubt under 38 U.S.C.A. § 5107, but finds that the record does not provide an approximate balance of positive and negative evidence on the merits. There is, therefore, no reasonable basis for granting an increased rating in this case. ORDER A compensable evaluation for anxiety disorder, not otherwise specified, is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals