Citation Nr: 0000043 Decision Date: 01/03/00 Archive Date: 12/28/01 DOCKET NO. 95-34 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased rating for psychophysiologic gastrointestinal reaction, currently rated 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse INTRODUCTION The veteran had active military service from February 1943 to January 1947. The veteran brought a timely appeal to the Board of Veterans' Appeals (the Board) from a November 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Board in September 1997 remanded the case to the RO for further development. The case has recently been returned to the Board for appellate consideration. FINDINGS OF FACT 1. The veteran's psychophysiologic gastrointestinal reaction results in no more than definite impairment of social and industrial adaptability with disturbance of affect and mood and decrease in work efficiency but without deficiencies in most areas or difficulty in establishing and maintaining effective relationships. 2. The veteran's psychophysiologic gastrointestinal reaction has not rendered his psychiatric disability picture unusual or exceptional in nature, markedly interfered with employment, or required frequent inpatient care as to render impractical the application of regular schedular standards. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for psychophysiologic gastrointestinal reaction have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.132, Diagnostic Code 9502 (effective prior to November 7, 1996); 38 C.F.R. § 4.130 (effective November 7, 1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The record shows that the RO in 1961 granted service connection for psychophysiologic gastrointestinal reaction and assigned a 10 percent rating under Diagnostic Code 9502 criteria. The current 30 percent disability evaluation has been in effect since September 1968. The record shows several VA medical examinations have been completed in connection with claim for increase filed in late 1993. This record has been supplemented with contemporaneous VA outpatient treatment records, private medical treatment records and personal hearing testimony. On a VA examination in July 1992, the veteran reported gastrointestinal bloating, indigestion, diarrhea and abdominal pain. He also reported fatigue, sadness, sleep disturbance and loss of concentration. The veteran stated that he last worked about 10 years ago. Objectively, the examiner found that he cooperated well and showed a poverty of speech with marked concreteness. Though content was unremarkable, mood was depressed and his affect blunted. He was oriented to time, date and place but had impaired recent memory and markedly decreased concentration. He could not perform simple numerical calculations and he had fair judgment and insight. The examiner recommended a neuropsychological evaluation. The Axis I diagnoses were mild major depression, psychological factors affecting physical condition, rule out dementia. Irritable bowel syndrome was included on Axis III. He did not appeal the RO determination of December 1992 that continued the 30 percent rating. The next pertinent communication was the veteran's letter in October 1993 seeking an increased rating. He reported to a VA examiner in September 1994 that he had good sleep, concentration, appetite and energy. He denied problems with anger and denied a depressed mood. He stated that he had a nervous stomach and that his "bowels are locked". The examiner found the veteran with fair attention, slow to respond to questions, good eye contact, fair rapport and good hygiene. His speech was slow, affect full range and thought processes were goal directed with no looseness of associations or flight of ideas. Thought content was unremarkable. He was alert and oriented in three spheres. He recalled two of three objects in five minute and regarding concentration he was able to give the days of the week backwards. His judgment and insight were fair. The Axis I diagnosis was history of psychophysiologic gastrointestinal reaction and included on Axis III was history of gastrointestinal bleed by patient report. Private medical treatment reports in July 1994 show complaints of gas, no pain and an assessment of a form of irritable bowel syndrome. An August 1996 examination noted relief of gas seemed to occur with Ex-Lax and Maalox. In November 1996 he again complained of gas and his bowel function. No diagnosis was entered on this occasion or in late 1997 and early 1998 when his complaints included constipation and occasional rectal irritation worse when he passed hard stools. The report of private hospitalization in early 1996 for dizziness showed a physical examination found normal active bowel sounds, a soft and nontender abdomen without rebound or guarding. A private examination for intermittent epigastric pain in July 1996 included a symptom history of bloating and burning type pain and occasional nausea. Past history noted peptic ulcer disease and remote gastrointestinal bleed and depression. The veteran was described as well nourished and in no acute distress. He had a flat and soft abdomen, normoactive bowel sounds, and no direct rebound tenderness, masses or organomegaly. The impressions included intermittent epigastric pain, intermittent nausea, chronic constipation and recent onset chest pain. After further evaluation August 1996 mild erosive gastritis, chronic constipation and intermittent chest pain probably cardiac in etiology were reported. VA examination in August 1996 shows the veteran complained of constipation, bloating, nervous stomach, occasional vomiting and intermittent diarrhea with symptoms present continually. He was found in no acute distress, maximum weight was current weight of 212 pounds and he was anemic. Upper gastrointestinal study was noted. The diagnoses were gastroesophageal reflux disease and irritable bowel syndrome. A private psychiatric assessment in June 1997 shows he complained of his stomach, decreased energy and concentration. He was found with more intact long-term memory than new learning and that medication may be implicated. There was no evidence of depression, no psychosis or paranoia. He was described as minimally unkempt (poverty related). He had decreased fluency and some difficulty word finding. His mood was euthymic but he had a decreased range of affect. He showed normal thought processes, no delusions, illusions or hallucinations. His abstraction was quite poor and his attention was good. He showed decreased short term and long term memory and fairly good insight. The assessment was complaint of memory with diffuse cognitive impairments that suggested mild dementia and/or intercurrent deliria secondary to medication with likely etiology small vessel disease in deep mesial or periventricular areas. The diagnosis was cognitive disorder not otherwise specified, rule out vascular dementia, and rule out deliria. Another report of examination also showed history of ulcer reported in the multiaxial assessment and essentially the same psychiatric diagnoses. On a VA psychiatric examination of the veteran in November 1997 the examiner reported that rapport was easily established and maintained throughout the interview. The veteran was described as neat and cleanly dressed. His thought processes were goal directed with hallucinations denied and no evidence of delusions or ideas of reference. His speech was normal, his mood euthymic and his affect full range and appropriate to content of speech. His judgment and insight appeared intact and he was described as alert and fully oriented. The examiner found him to be quite concrete with limited intellect. His short-term memory was poor and the examiner stated that his long-term memory was difficult to assess because he claimed not to pay much attention to world events. He reported recurrent nightmares. The diagnosis on Axis I was generalized anxiety disorder and on Axis V global assessment of functioning scale (GAF) score of 55. No gastrointestinal disorder was reported in the multiaxial assessment. In an addendum in August 1998 the examiner stated that the veteran had significant social impairment that was overcome somewhat with the help of his family. The examiner opined that his industrial impairment was difficult to assess in a 74-year-old and that his age was more of an industrial impairment than his anxiety disorder. It was the examiner's opinion that it did not seem realistic that he could hold down a full-time job. VA gastrointestinal radiology in November 1997 was found to be unsatisfactory. Reexamination in March 1999 showed no evidence of gastroesophageal reflux, hiatal hernia, ulcers or mass lesions or abnormalities of the duodenal bulb or duodenal loop. Physical examination showed that the veteran complained of gas and an uncomfortable abdomen and constipation for which he took a laxative and stool softener. He complained of upper gastrointestinal gas pain and nausea no vomiting and frequent heartburn. He reported good appetite and weight between 208-218 pounds (5' 11" height). He was described as well developed and well nourished. The abdomen was without organomegaly or masses. There was mild tenderness in the epigastric area but no rebound tenderness. He was found to have normoactive bowel sounds. The examiner reviewed upper gastrointestinal study and laboratory reports. The diagnosis was history of peptic ulcer disease and reflux, history of chronic constipation. The examiner reported review of the claims file and noted that according to the veteran his gastrointestinal symptoms, which he had since service greatly affected his industrial adaptability. The examiner noted the veteran's report of being uncomfortable after taking a laxative and of unpredictable diarrhea that restricted him from going out and doing what he would like to do. The examiner stated that his predominant gastrointestinal disability was constipation. On a VA psychiatric examination in March 1999, the veteran complained of being disoriented at times, frequently misplacing items and forgetting to turn off appliances. He stated that he was no longer able to count change effectively. He reported taking medicine for stomach trouble and stomach pain and ulcer and to help him digest food. He reported a history of several stokes and head injury. He stated that his appetite and weight were good and he had no history of homicidal or suicidal thoughts. He reported that he was last employed six years ago cutting pulpwood, which he left because of physical problems. He reported being unable to remember recent events. His daughter was preset and reported he had a nervous stomach that swelled a lot and that he had gas most of the time. He said he became nervous when his stomach and kidneys bother him. On the mental status examination, the examiner found the veteran appropriately dressed, well nourished and adequately groomed. He exhibited no unusual motor activities. His speech was spontaneous and fluent with no flight of ideas or looseness of associations. His mood was euthymic and his affect restricted. He denied hallucinations and identifiable delusions or homicidal or suicidal thoughts. He was precisely oriented to person, place, situation and time. Remote, recent and immediate recall was poor. His judgment was adequate, his abstracting ability impaired and his insight fair. The examiner stated that the claims file was examined and that the veteran gave a history consistent with dementia and psychological factors affecting medical condition. The examiner opined that exclusive of dementia the effect of psychological factors affecting medical condition upon social and industrial adaptability was mild. The diagnoses were dementia, not otherwise specified, and psychological factors affecting medical condition. The GAF excluding dementia was 65. A private medical record dated in February 1999 reported poor memory, attention all right, euthymic affect and mood and no paranoia or hallucinations. Diagnostic findings were small vessel disease, cognitive/vascular dementia, delirium secondary to medication recently added, and questioned sleep apnea. Criteria The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1 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. The rating schedule provisions for psychiatric disorders were changed effective November 7, 1996 and both the old and new criteria are applicable to the veteran's appeal. Under the applicable rating criteria in effect prior to November 7, 1996, psychological factors affecting gastrointestinal condition were evaluated under the general rating formula for psychoneurotic disorders. A 10 percent evaluation under the old criteria was assigned where there was mild impairment of social and industrial adaptability. A 30 percent evaluation under the old criteria was assigned where there was definite impairment of social and industrial adaptability. A 50 percent evaluation was assigned upon a showing of considerable impairment of social and industrial adaptability. A 70 percent evaluation was warranted for severe impairment of social and industrial adaptability. A 100 percent evaluation was assigned where the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community and where there were 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, rendering the veteran demonstrably unable to obtain or retain employment. Note (2). When two diagnoses, one organic and the other psychological or psychophysiologic or psychoneurotic, are presented covering the organic and psychiatric aspects of a single disability entity, only one percentage rating evaluation will be assigned under the appropriate diagnostic code determined by the rating board to represent the major degree of disability. When the diagnosis of the same basic disability is changed from an organic one to one in the psychological or psychoneurotic categories, the condition will be rated under the new diagnosis. 38 C.F.R. § 4.132, Code 9502; effective prior to November 7, 1996. In Hood v. Brown, 4 Vet. App. 301 (1993), the United States Court of Appeals for Veterans Claims then known as the United States Court of Veterans Appeals (hereinafter, "the Court") stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate "reasons for bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a precedent opinion, dated November 9, 1993, the VA General Counsel concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." The Board is bound by such interpretations. 38 U.S.C.A. § 7104(c) (West 1991). The revised criteria provide a 10 percent evaluation in the presence of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent evaluation is provided in the presence of 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 50 percent evaluation is to be assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships). A 100 percent evaluation is provided for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. When a single disability has been diagnosed both as a physical condition and as a mental disorder, the rating agency shall evaluate it using a diagnostic code which represents the dominant (more disabling) aspect of the condition (see Sec. 4.14). 38 C.F.R. § 4.126(d), effective November 7, 1996. Although a review of the recorded history of a disability is necessary in order to make an accurate evaluation, see 38 C.F.R. §§ 4.2, 4.41 (1996), the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). Both the use of manifestations not resulting from service- connected disease or injury in establishing the service- connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalizations as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3. The maximum rating is 30 percent for severe irritable colon syndrome manifested by diarrhea with more or less severe abdominal distress. Diagnostic Code 7319. Gastritis, hypertrophic (identified by gastroscope): Chronic; with severe hemorrhages, or large ulcerated or eroded areas shall be rated 60 percent. Chronic; with multiple small eroded or ulcerated areas, and symptoms shall be rated 30 percent. Chronic; with small nodular lesions, and symptoms shall be rated 10 percent. Diagnostic Code 7307. Ulcer, duodenal, severe; pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health shall be rated 60 percent. Moderately severe; less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year shall be rated 40 percent. Moderate; recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations shall be rated 20 percent. Mild; with recurring symptoms once or twice yearly shall be rated 10 percent. Diagnostic Code 7305. Analysis As a preliminary matter, the Board finds that the veteran's claim for increased disability compensation is well grounded. Shipwash v. Brown, 8 Vet. App. 218 (1995); Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is satisfied that all relevant facts have been properly developed to the extent possible and that no further duty to assist exists with respect to the claim. The veteran has been provided comprehensive evaluations in connection with the claim and other records have been obtained. In accordance with 38 C.F.R. §§ 4.1, 4.2, and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the record pertaining to the history of the veteran's psychiatric disability. The Board has found nothing in the historical record that would lead to a conclusion that the current evidence of record is not adequate for rating purposes. The Board has not found any deficiency in the development completed by the RO as a result of the Board remand that could arguably be viewed as potentially prejudicial to the veteran's claim for increase. Stegall v. West, 11 Vet. App. 268 (1998). Service connection is presently in effect for psychophysiologic gastrointestinal disorder, which has been assigned a 30 percent evaluation. The schedular criteria for evaluation of psychiatric disabilities were changed effective November 7, 1996. Where law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version more favorable to the appellant applies unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary does so. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Thus, the veteran's psychiatric disability must be evaluated under both the old and new rating criteria to determine which version is more favorable to the veteran. However, the new criteria may not be applied prior to the effective date. Rhodan v. West, 12 Vet. App. 55 (1998). Over the course of this claim, the veteran has received several comprehensive VA psychiatric examinations. Historically, he has employment as a farmer. He reported in 1979 that he quit work in the late 1970's because of a bad back. Recently a VA examiner did not find the psychiatric disability a significant factor in his employment picture. The examinations showed his affect restricted but overall appropriate and without circumstantial thinking. GAF was assessed as 65 on the most recent examination in 1999 that confirms symptoms mildly impacting the veteran under the GAF scale now in effect. An earlier examination reported a GAF score of 55 that equates with moderate symptoms or difficulty from psychiatric disability manifestations. On the most recent examination, the examiner opined that the veteran was mildly impacted by his service-connected disorder socially and industrially. The several psychiatric examinations through 1999 were supplemented with private interviews that overall showed a consistent presentation with the formal VA psychiatric examinations. The recent VA examination carefully assessed the service-connected disorder and adjusted the GAF score to reflect impairment linked to the service-connected disability. The examiners have rendered a diagnosis of psychophysiologic disorder now known as psychological factors affecting medical condition and GAF scores recently of 55 and 65 that correspond generally to mild to moderate symptoms under the GAF scales in use since November 7, 1996 and previously applicable. The VA examiner in 1999 raised the score that indicates a favorable change was warranted. In reviewing the medical evidence of record, the Board is of the opinion that an evaluation in excess of 30 percent is not warranted under the old schedular criteria. The veteran has apparently not been able to work. He reported physical problems were a factor and mild impairment in his ability to work has recently been related to his service-connected psychiatric disability. The veteran has not been found unable to interact with individuals. Moreover, GAF score of 65 was recently reported that reasonably correlates with the assessment of mild impairment, and thus no more than the definite impairment previously contemplated for a 30 percent rating. Overall, the veteran's difficulty is well documented. Considerable impairment of social and industrial adaptability does not appear to have been demonstrated in view of the several comprehensive psychiatric evaluations that have described an essentially consistent presentation. These reports do not vary greatly and are reasonably accorded great probative weight in assessing the level of impairment, as they are the products of medical professionals in the field of psychiatry. There is also a problem with dementia, which the VA examiner separated from the psychological factors affecting medical condition as not related to the veteran's service-connected disability. A 50 percent evaluation is also not warranted under the new criteria, as the veteran has not even been shown to have many symptoms characteristic of the current 50 percent rating. For example, there was no indication of difficulty in understanding complex commands; impairment of short- and long-term memory linked to the psychophysiologic disorder or appreciably impaired judgment; impaired abstract thinking linked to this. The level of symptoms that would correspond with difficulty in establishing and maintaining effective work and interpersonal relationships is not shown in view of the GAF score. A 50 percent evaluation is to be assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Although the representative argues for a higher evaluation, the professional medical assessment over several comprehensive examinations does not appear to support this view. Factors not service-connected cannot be ignored in the veteran's overall psychiatric disability picture and the dementia, which appears significant in the VA and private reports, is not service-connected. Overall, PTSD has been assessed as mild to moderate on recent examinations in view of the GAF scores, which appear consistent with the examiners' narrative description of symptoms. The recent examinations, in the Board's opinion, provide ample evidence for continuing the 30 percent rating at this time. Mittleider v. West, 11 Vet. App. 181 (1998). The veteran does not have an organic gastrointestinal disorder diagnosis or physical condition as a component of the disability. It is solely rated under the applicable psychiatric rating scheme. The Board would observe that recently mild gastritis was mentioned and irritable bowel syndrome also mentioned does not provide a rating higher than the 30 percent in effect under the corresponding psychiatric rating scheme. Remote ulcer disease is mentioned in the record. Thus even if such symptoms were associate to the service-connected disability in the absence of a separate diagnosis for organic aspects of the disability, the rating would not allow for a higher evaluation in view of the overall symptomatology at this time. The Board notes that from the information on file, it appears that the appellant's psychophysiologic disorder has not rendered his disability picture unusual or exceptional in nature, shown to in and of itself constitute marked interference with employment, or to have required frequent inpatient care as to render impractical the application of regular schedular standards, thereby precluding assignment of an evaluation in excess of the current 30 percent rating on an extraschedular basis under 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to an increased rating for psychophysiologic gastrointestinal reaction is denied. Mark J. Swiatek Acting Member, Board of Veterans' Appeals