BVA9505316 DOCKET NO. 91-46 080 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to an increased rating for generalized anxiety disorder, currently rated 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. B. Werdal, Associate Counsel INTRODUCTION The veteran served on active duty from February 1942 to July 1945. This matter came before the Board of Veterans' Appeals (hereinafter Board) of the Department of Veterans Affairs (hereinafter VA) on appeal from a decision dated December 26, 1990, from the Togus, Maine, Regional Office (hereinafter RO). The notice of disagreement was received in May 1991. The statement of the case was sent to the veteran in June 1991. The substantive appeal was received in June 1991. This matter was previously remanded by the Board in August 1992. The Board notes that a claim for service connection for hypertension secondary to the veteran's service-connected psychiatric disability was denied in a rating decision dated January 20, 1993. The veteran and his representative were informed of that decision, and of the veteran's appellate rights in that regard but it does not appear from the record before the Board at this time that that claim is in appellate status, so it will not be addressed in this decision. The Board observes that the claims folder contains evidence added to the record after the claims folder was received at the Board. In particular, a letter dated June 28, 1994, together with copies of treatment records dated in 1993 and 1994, was associated with the appellate record after the veteran was notified it was being sent to the Board November 3, 1993. The correspondence was from the veteran's representative, and waived the veteran's right to have the evidence first considered by the RO. Under 38 C.F.R. § 20.1304(b) (1994), that evidence may be considered only if there is a showing of good cause why it was not submitted prior to the expiration of 90 days from the date the appellant was informed that the file was being forwarded to the Board. The records reflect medical care administered after the appeal was sent to the Board, and after the 90 period elapsed. The Board concludes that good cause has been shown to exist in this case: the length of time to process this claim necessitated the submission of current medical information. Accordingly, the Board will consider the evidence. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected generalized anxiety disorder, currently rated 30 percent disabling, should be assigned a higher disability rating, as it is more disabling than the level of disability addressed by the 30 percent rating. He also asks that he be afforded the benefit of the doubt. 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 two-volume basic claims folder. 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 veteran is entitled to a 100 percent schedular disability rating due to his service-connected generalized anxiety disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran has one service-connected disability, generalized anxiety disorder. His ability to establish and maintain favorable relationships with people is severely impaired by the symptoms of that disability, and the manifestations of disability are of such severity and persistence that severe impairment in his ability to obtain or retain employment results. 3. The veteran's service-connected generalized anxiety disorder precludes him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The veteran's generalized anxiety disorder, rated 70 percent disabling, precludes him from obtaining and retaining substantially gainful employment, and therefore warrants a 100 percent rating due to individual unemployability. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.16(c), 4.132, Diagnostic Code 9400 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board is satisfied that all relevant facts have been properly developed, and there is no indication that additional treatment records are available that would present a different picture of the current status of the veteran's service-connected generalized anxiety disorder, currently rated 30 percent disabling. No further assistance is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107 (West 1991). The veteran served on active duty from February 1942 to July 1945. He was born in 1924. In a rating decision dated in July 1946, service connection was granted for psychoneurosis, anxiety state, effective the day after his release from active duty in July 1945, and assigned a 10 percent disabling rating. In a rating decision dated in July 1987, that rating was increased to 30 percent, effective from May 1987. In October 1990 the veteran sought vocational rehabilitation counseling, and the report of that counseling session was accepted as a claim for an increased rating of his service-connected psychiatric disability. The disability rating assigned to the veteran's service-connected disability is established by comparing the manifestations indicated in his medical records with those manifestations described in the prior medical findings, and with the criteria in VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1994). The rating schedule addresses generalized anxiety disorder at Diagnostic Code 9400, which rates the level of disability by assessing the level of social and industrial impairment exhibited. A 100 percent rating is warranted when the veteran exhibits symptoms comparable with those indicating that attitudes of all his contacts except the most intimate are so adversely affected as to result in 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 profound retreat from mature behavior, and demonstrable inability to obtain or retain employment. A 70 percent rating is appropriate when the veteran demonstrates that his ability to establish and maintain effective or favorable relationships with people is severely impaired, and the symptoms are of such severity and persistence that there is severe impairment of the ability to obtain or retain employment. The schedule suggests a 50 percent disability rating when the veteran's ability to establish or maintain effective or favorable relationships with people is considerably impaired, and by reason of psychoneurotic symptoms his reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. Definite impairment of the ability to establish or maintain effective and wholesome relationships with people requires a 30 percent rating, when the psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. The United States Court of Veterans Appeals (Court) has held that the term "definite" in 38 C.F.R. § 4.132 (1994) was qualitative in character, and invited the Board to construe the term in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate "reasons or bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West 1991); Hood v. Brown, 4 Vet.App. 301 (1993). In a precedent opinion dated November 9, 1993, the General Counsel of the VA concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial unadaptability that is "more than moderate but less than rather large." O.G.C. Prec. 9-93 (Nov. 9, 1993). The Board and the RO are bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(d)(1) (West 1991). The rating schedule provides a 10 percent rating when the veteran's symptoms are less than the criteria for the 30 percent rating, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment. A noncompensable rating is appropriate when the veteran exhibits symptoms which may somewhat adversely affect relationships with others but which do not cause impairment of working ability. 38 C.F.R. § 4.132, Diagnostic Code 9400 (1994). The VA counseling record prepared incident to the veteran's Chapter 31 vocational rehabilitation counseling session in October 1990 reflects that the counseling psychologist concluded that the veteran, who has a master's degree and last worked in 1985 when his contract as the superintendent director of regional vocational training was not renewed, had an employment handicap. The psychologist suggested that the veteran's service-connected psychiatric disability led him to become increasingly concerned and anxious about his employment, and it is likely that his service-connected disability contributed to his contract not being renewed. The psychologist added that he believed the veteran might like part-time work that was not stressful, but did not think the veteran would ever become employable as he believed the veteran liked the flexibility of his retirement. The psychologist reported that the veteran then declined vocational rehabilitation training, and the interview was closed. The claims folder contains VA medical records that reflect that in December 1991 the veteran reported to a VA medical facility with complaints of episodes of dizziness, dysphoria and claustrophobia. In May 1992 he reported that he had experienced no more "spells" since December 1991, but that he experienced insomnia nightly, with thrashing. During the day he napped, but still felt fatigued. In June 1992 he had an examination for VA compensation purposes, during which it was noted he was cooperative, quiet, coherent, logical, and relevant. He appeared lucid, eye contact was adequate, and showed no evidence of psychosis. His memory was intact, concentration was good, abstract thinking was present, and he showed no signs of hallucinations or delusions. Serial sevens were done very well, and insight and judgment were intact. The examiner noted that the veteran appeared mildly depressed, and there was no life in his tone of voice. The veteran reported that he believed his psychiatric condition had worsened since 1989. He reported that his lifestyle was very limited, and that he had limited contact with his family, although that might be because they live in Massachusetts, not Maine. However, he admitted to having very little interest in his grandchildren. He reported that he did not belong to any clubs, associations or churches. The examiner's diagnosis on Axis I was generalized anxiety disorder with depressive features. The examiner added that he believed the veteran exhibited moderate impairment, adding that the veteran was not homicidal or suicidal and was able to look after himself. He continued that the veteran is a loner by nature, and that is part of his personality possibly under Axis II. The examiner also diagnosed under Axis III history of hypertension, and added that the dizzy spells the veteran mentioned in his report of his medical history might have been due to changes in blood pressure with possible hypotensive episodes. The examiner also noted that antidepressant medications affect mood, and that perhaps the Doxepin dosage is insufficient to cause any change in his depression. The examiner concluded his report with the notation that there had been very little motivation on the veteran's part to return to a more community- or family-oriented style of living. Treatment records reflect that the veteran continued to complain of insomnia, fatigue, irritability, depression and anxiety, but showed no signs of psychoses. In another VA examination in September 1992 for compensation purposes the same examiner who saw the veteran in June 1992 noted additional information regarding the veteran's employment: he stated that the veteran moved to Maine from Massachusetts in search of a quieter environment, and was offered employment in Maine but turned it down "because of his temperament." Present activities were characterized by the examiner as "very little." The veteran reported he did some wood carving, but other than that had no hobbies, and no community involvement. He stated that his wife did have extensive community involvement. The veteran reported continued insomnia, continued treatment for hypertension, and treatment for gastric distress. The veteran described occasional palpitations and feelings of insufficient air intake or food lodged in his throat, sweaty palms and sweaty armpits as his current symptoms of anxiety. Complaints of slight dizziness were also noted, as was the possibility that the dizziness could be due to his medication. The examiner reported the veteran's mental status as cooperative, quiet, a little constrained, coherent, logical, and relevant. His tone of voice was described as "rather lifeless." Eye contact was good, as was concentration on serial sevens. There was no evidence of psychosis, but the veteran appeared mildly depressed on top of his edgy restlessness. Immediate recall was poor, insight and judgment were adequate. The examiner reported the veteran's complaint that his memory was deteriorating, and that he felt unable to carry on employment because his tolerance of others had decreased, and his control of anger and irritability was more of a problem. The examiner added that the veteran's history revealed there have been times when he came very close to physical attack of those with whom he had differences of opinion, such as when he was on a school committee and also when he was a school administrator. The examiner's Axis I diagnosis was generalized anxiety disorder with some depression, and the examiner's assessment of the veteran's global functioning (GAF) was that it was poor. In December 1992 the veteran was counseled by a different VA vocational rehabilitation counseling psychologist. The examiner noted the veteran was taking no medication for his service- connected generalized anxiety disorder, and was not participating in any kind of therapy. The veteran informed the psychologist that he has a good relationship with his wife, but avoided all other contacts and emphasized the fact that he did not want to deal with people because he encountered problems dealing with people in the past. The counseling psychologist characterized the veteran's generalized anxiety disorder as worsening, and characterized his interpersonal and social problems as severe. The psychologist concluded that the veteran has a serious employment handicap due to his service-connected disability, and added that it appears it would be infeasable to rehabilitate the veteran, but that it was impossible to investigate that aspect because the veteran had no desire to participate in such a program. The psychologist reported that the veteran had no training or vocational objectives, but seemed to be interested in leading a more productive retirement. However, the psychologist added, the veteran was prevented from engaging in more productive activities by his service-connected disability. His feasibility for achieving vocational rehabilitation was characterized as poor, and he chose to decline vocational rehabilitation services. Additional VA treatment records contain reports of continued complaints of the symptoms discussed above. The Board observes that the veteran's complaints of symptoms and manifestations of his generalized anxiety disorder have remained relatively constant since his claim for an increased rating was received in October 1990, and have been confirmed in VA examinations. Although he has not sought extensive therapy for his psychiatric symptoms, that perhaps is attributable to the fact that, as one examiner noted, he is a loner and avoids contact with others. In July 1994 he was referred to a World War II veterans group at the VA medical facility, and he reported that he was not much of a group person but wanted to explore the group opportunity. Records of treatment after July 1994 are not available to the Board at this time. When there is a question as to which of two evaluations should be applied to a disability, the higher evaluation will be assigned if the disability picture more nearly approximates the schedular criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1994). In this case, although the veteran is able to interact effectively with his examiners, he does so in a manner described by the examiners as lifeless. Examiners have consistently detected anxiety and depression, and have assessed his level of impairment of social and industrial functioning as ranging from moderate to severe. In September 1992 his GAF was poor. Although the veteran has considerable education and employment history, the examiners have concluded that his employability is impaired by his anxiety. The veteran related incidents during which his irritability present a problem during the course of his employment, and the VA examiner concluded that he believed the veteran's generalized anxiety disorder probably led to the veteran's retirement in 1985. The Board believes that the evidence supports a finding that the veteran's social and industrial adaptability are more than definitely impaired by his generalized anxiety disorder: in fact, the Board believes the evidence shows they are severely impaired. Thus, the current manifestations of disability approximate the rating criteria for a 70 percent schedular rating. 38 C.F.R. §§ 4.7, 4.132, Diagnostic Code 9400 (1994). The evidence does not suggest that the veteran's generalized anxiety disorder causes totally incapacitating symptoms of neurosis bordering on gross repudiation of reality or profound retreat from mature behavior. However, the Board concludes that, when all the evidence is taken into account it supports a finding that the veteran's generalized anxiety disorder precludes him from securing or following a substantially gainful occupation. Therefore, under 38 C.F.R. §§ 4.16(c), 4.132, Diagnostic Code 9400 (1994), a 100 percent schedular disability rating. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.16(c), 4.132, Diagnostic Code 9400 (1994). ORDER A 100 percent schedular disability rating under 38 C.F.R. § 4.16(c) (1994) is granted. E. M. KRENZER 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.