Citation Nr: 0000731 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 96-05 327 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased (compensable) rating for peptic ulcer disease. 2. Entitlement to an increased rating for a mood disorder, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Henriquez, Associate Counsel INTRODUCTION The veteran had active service from March 1972 to October 1972. This matter originally came before the Board of Veteran's Appeals (Board) on appeal from an April 1994 rating action in which the RO denied an evaluation in excess of 10 percent for a psychophysiological GI reaction with peptic ulcer disease. The veteran appealed that determination. In September 1997, following initial appellate review, the Board remanded the case to the RO for further development. Following the remand, the RO recharacterized the veteran's service-connected psychophysiological GI reaction with peptic ulcer as two separate issues -- a mood disorder, assigned a 30 percent evaluation; and peptic ulcer disease, assigned a noncompensable evaluation. The case has now been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. The veteran does not have evidence of a peptic ulcer disease as revealed by current VA examination. 2. The veteran's mood disorder is productive of no more than definite social and industrial impairment. 3. The veteran's mood disorder is productive of no more than social and occupational impairment with occasional decrease in work efficiency. CONCLUSIONS OF LAW 1. The criteria for a compensable disability evaluation for peptic ulcer disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.10-14, 4.114, Diagnostic Code 7305 (1999). 2. The criteria for a rating in excess of 30 percent for the veteran's mood disorder have not been met. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1998); 38 C.F.R. Part 4, including § 4.132, Diagnostic Code Code 9435 (1999); 38 C.F.R. Part 4, including § 4.130, Diagnostic Code 9410 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran and his representative assert that his stomach condition has increased in severity and that it is improperly evaluated. The RO initially granted service connection for a psychophysiological GI reaction with peptic ulcer disease by a rating action in March 1973. In that rating action, it was noted that a January 1973 VA examination revealed a moderate psychophysiologic GI reaction and peptic ulcer disease. VA outpatient treatment records dated from November 1994 to May 1995 reveal that the veteran was seen on numerous occasions for abdominal pain related to pancreatitis. Other diagnoses included HIV and coronary artery disease. VA hospital summaries dated in 1994 and 1995 reveal that the veteran was hospitalized on several occasions with recurrent chronic pancreatitis. The Board remanded the case to the RO in September 1997 to determine whether the veteran's physical condition or mental condition was more disabling, and once that determination was made, to rate the more disabling condition under the appropriate diagnostic code. A VA hospital summary in February 1997 revealed that the veteran was hospitalized with complaints of abdominal pain related to acute pancreatitis. Other diagnoses included HIV and coronary artery disease. Pursuant to the remand order, the veteran was afforded a VA gastroenterology examination in June 1999. The examiner noted a history of chronic alcohol abuse complicated by chronic calcific pancreatitis, which had led to chronic pain syndrome. The veteran experienced chronic nausea and minimal vomiting. He denied any history of hematemesis, coffee ground emesis, or melenic stool. He also denied any history of disturbance after meals or diarrhea. He did admit to some constipation. He stated that the pain occasionally wakes him up at night. The veteran was taking medication for the pancreatitis. On examination, the abdomen was soft and depressible. Bowel sounds were present. There was no tenderness or hepatosplenomegaly. There was no evidence of weight gain, weight loss, or anemia. It was noted that an upper GI series in March 1998 revealed a normal upper GI series. The calcification study demonstrated the head of the pancreas consistent with chronic calcific pancreatitis. The assessment was chronic abdominal pain secondary to chronic calcific pancreatitis, with a history of chronic alcohol abuse. The examiner stated that there was no evidence of peptic ulcer disease and that the abnormalities noted on the calcium study revealed chronic calcific pancreatitis. He emphasized that the veteran's symptomatologies were due to the chronic calcific pancreatitis that was a result of prior alcohol abuse. Pursuant to the Board's September 1997 remand, the veteran also underwent a VA psychiatric examination in June 1999, pursuant to the remand. During the examination, the veteran stated that he takes a pill for anxiety and that he has always had a problem with his nerves. He stated that his condition had progressively become worse since the time he was diagnosed with HIV 11 years ago. He has had difficulty sleeping and has experienced a decreased level of energy that he attributed to his physical conditions. He had difficulty qualifying his mood other than noting that he was anxious at times. He denied having any particular interests. He was unable to state how his nerves affected him in his occupational or functional situations. He stated that he held many jobs coming out of service but that his most recent job was lost because of his mental illness. He stated that he has not been able to work since then because of his physical limitations. He denied a history of suicide attempts. The veteran was close to his family in general. On mental status examination, he was cooperative and his speech had a normal rate and volume. His thoughts were organized and there was no evidence of a psychosis. His affect was slightly constricted, however, he did smile at times and appeared to be calm throughout the interview. He was alert and oriented. His memory appeared intact. His fund of knowledge was fair to good. His insight was fair, and his judgment was fair to good. The examiner's assessment was that the veteran had symptoms of anxiety and depression. He stated, however, that many of these symptoms could be linked to his chronic medical conditions. He notes that the veteran himself stated that if it were not for his medical conditions, his nerve condition would be much better. The veteran appeared to appreciate his psychiatric condition as secondary to his multiple medical conditions. The examiner further noted that the veteran's depressive symptoms seemed mild to moderate at the present time and that they seemed to have impacted his occupational and social functioning to a lesser degree than his medical conditions had. It was indicated that the veteran no longer was able to work because of his cardiac conditions and that he denied every having lost a job because of his psychiatric conditions. The diagnoses included mood disorder secondary to general medical condition with mixture of anxiety and depressive symptomatology. A global assessment of functioning (GAF) score of 60 was assigned. Based on the VA examination findings, in a July 1999 rating action, the RO recharacterized the veteran's psychophysiological GI reaction with peptic ulcer disease as two separate conditions--a mood disorder and a peptic ulcer disease. II. Analysis As a preliminary matter, the Board finds that the veteran's increased rating claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). A mere allegation that a service- connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating. See Caffrey v. Brown, 6 Vet. App. 337, 391 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board is satisfied that all relevant facts have been properly developed as to this claim and that no further assistance to the veteran is required in order to comply with the duty to assist on these issues. Id. VA utilizes a rating schedule as a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities. 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. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, Part 4. It is thus essential, both in the examination and in the evaluation of disability, that each disability be reviewed in relation to its history. See 38 C.F.R. § 4.41. However, where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. I. Increased (Compensable) Rating for Peptic Ulcer Disease The veteran's service-connected peptic ulcer disease is evaluated under Diagnostic Code (DC) 7305. This code provides that a 10 percent evaluation is warranted for a mild duodenal ulcer with recurring symptoms once or twice yearly. A 20 percent evaluation is warranted for a moderate duodenal ulcer with recurring episodes of severe symptoms two or three times a year averaging ten days in duration or with continuous moderate manifestations. A 40 percent evaluation requires a moderately severe duodenal ulcer with intercurrent episodes of abdominal pain at least once a month partially or completely relieved by ulcer therapy, mild and transient episodes of vomiting or melena. A 60 percent evaluation is warranted for severe duodenal ulcer, with 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. T he 60 percent evaluation is the highest assignable under Diagnostic Code 7305. See 38 C.F.R. § 4.114. Where the minimum schedular evaluation requires residuals and the schedule does not provide a noncompensable evaluation, a noncompensable evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31 (1999). At the outset, the Board notes that it is clear that the veteran is suffering from chronic abdominal pain. However, when evaluating his symptoms for the purpose of considering his claim for an increased rating, the Board can consider only those which are attributable to peptic ulcer disease. In other words, no symptomatology attributable to the veteran's nonservice-connected pancreatitis, may be considered in evaluating his service-connected peptic ulcer disease. It is clear from review of the medical records his ongoing abdominal pain has been attributed to pancreatitis that is of nonservice origin. Moreover, the Board finds that the manifestations of the veteran's peptic ulcer disease do not meet the criteria for a 10 percent evaluation. The VA examiner in June 1999 specifically stated that the veteran's chronic abdominal pain was due to chronic calcific pancreatitis. There was no evidence of a peptic ulcer disease. Therefore, in the absence of the required residuals for peptic ulcer disease, a compensable rating is not warranted under Diagnostic Code 7305. II. Increased Rating for a Mood Disorder During the course of the veteran's appeal, the regulations pertaining to psychiatric disabilities were revised. When a law or regulations change during the pendency of a veteran's appeal, the version most favorable to the veteran applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). The veteran's claim for an increased rating for a psychiatric disorder was originally evaluated under 38 C.F.R. § 4.132, Diagnostic Code 9502, in effect prior to November 7, 1996. Under Diagnostic Code 9502, psychological factors affecting the physical condition were rated under the general rating criteria for psychoneurotic disorders. Under the former rating criteria, a 30 percent rating is warranted if it is demonstrated that there is a definite impairment in the ability to establish or maintain effective or wholesome relationships with people. The symptoms result in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. The term "definite" has been defined as impairment that is "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." VAOGCPREC 9-93 (O.G.C. Prec 9-93). The Board and the RO are bound by the interpretation of the term "definite." 38 U.S.C.A. § 7104(d)(1) (West 1991). A 50 percent rating under the former criteria is warranted when the ability to maintain effective or favorable relationships with people is considerably impaired, and by reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. 38 C.F.R. § 4.130. A 70 percent evaluation under the former criteria is warranted when the ability to establish and maintain effective or favorable relationships with people is severely impaired; the pyschoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. Id. To warrant a 100 percent evaluation under the former criteria, the attitudes of all contacts except the most intimate must be so adversely affected as to result in virtual isolation in the community; or there must be totally incapacitating 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; or, as a result of the psychiatric disability, the individual must be unable to obtain or retain employment. Id. On November 7, 1996, the rating criteria for psychiatric disorders were revised and are now found at 38 C.F.R. § 4.130. Under the current rating criteria, 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; and mild memory loss (such as forgetting names, directions, recent events), a 30 percent rating is assigned. 38 C.F.R. Part 4, Code 9435. 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 one week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships, is assigned a 50 percent rating. Id. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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); and inability to establish and maintain effective relationships. Id. Finally, a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. Id. In applying the former criteria, the Board finds that the evidence does not show that the veteran's mood disorder is indicative of more than a definite (30 percent) degree of industrial impairment. The VA examiner found that the veteran's depressive symptoms were mild to moderate. Findings from the VA examination show that the veteran's symptoms of anxiety and depression were mainly attributed to his current physical condition. He has not been able to work because of his physical limitations. He was generally close to his family. The veteran noted himself that if it were not for his physical condition, his nerve condition would be much better. Furthermore, the GAF score of 60 assigned by the VA examiner is consistent with overall moderate psychiatric symptomatology. Indeed, the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) indicates that a GAF of 60 is representative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational or school functioning (e.g., few friends, conflicts with peers or co-workers). At least considerable impairment (required for the next higher, 50 percent rating) has not been shown; hence, it stands to reason that the criteria for no higher evaluation has been met. Accordingly, the Board concludes that an increased rating is not warranted under the former rating criteria. With respect to the revised rating criteria, the Board notes that the June 1999 VA examination report showed that the veteran's depressive symptoms were mild to moderate and that they seemed to have impacted his occupational and social functioning to a lesser condition that his medical conditions had. The examiner noted that many of the veteran's psychiatric symptoms could be linked to his chronic medical conditions, and that he could not work due to his physical limitations. He has maintained family relationships. The evidence does not demonstrate that his mood disorder results in such 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, as is necessary for a 50 percent evaluation under the revised rating criteria. Inasmuch as the criteria for the next higher evaluation are not met, it stands to reason that the criteria for no higher evaluation is met. Consequently, the Board finds that an increased rating is not warranted under the revised criteria. The above determinations are based upon consideration of applicable provisions of the rating schedule. Additionally, however, there is no showing that the disability currently under consideration reflects so exceptional or so unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. In this regard, the Board notes that the disability is not objectively shown to markedly interfere with employment (i.e., beyond that contemplated in the assigned ratings). Moreover, the condition is not shown to warrant frequent periods of hospitalization or to otherwise render impractical the application of the regular schedular standards. In the absence of evidence of such factors as those outlined above, the Board is not required to remand the claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds that the veteran's claim for an increased rating for his mood disorder must be denied. The preponderance of the evidence is against the claim; hence, the benefit-of-the-doubt doctrine is inapplicable. See 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER A compensable disability evaluation for peptic ulcer disease is denied. An evaluation in excess of 30 percent for a mood disorder is denied. JACQUELINE E. MONROE Member, Board of Veterans' Appeals