BVA9503659 DOCKET NO. 92-18 353 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a 100 percent evaluation for anxiety reaction (also diagnosed as major depression, unipolar disorder and post- traumatic stress disorder), currently evaluated as 70 percent disabling, either on a schedular basis or under the provisions of 38 C.F.R. § 4.16(c). REPRESENTATION Appellant represented by: Anthony B. Lee, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Associate Counsel INTRODUCTION The veteran served on active duty from February 1942 to January 1953. This appeal arises from March 1989 and subsequent rating decisions of the Nashville, Tennessee, regional office (RO). The March 1989 rating decision continued a 50 percent evaluation for the veteran's service-connected psychiatric disability. A hearing was held at Nashville, Tennessee, in September 1992 before Jan Donsbach, who is the member of the Board of Veterans' Appeals (Board) rendering this decision and was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). In December 1992, the Board remanded the case to the RO for further development. Subsequently, a rating decision of April 1993 continued the 50 percent evaluation. In January 1994, the Board again remanded the case for additional development and to reconcile conflicting medical opinions. Subsequently, an August 1994 rating decision granted a 70 percent evaluation for the veteran's service-connected psychiatric disorder. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to a 100 percent disability evaluation for his service-connected psychiatric disorder. He contends that he is continually depressed, and that he suffers from insomnia, nightmares, flashbacks, and severe anxiety. He further contends that he avoids leaving his house and is fearful of people. He contends that he is unable to work due to his service-connected psychiatric disability. 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 files. 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 is against the veteran's claim for a schedular evaluation above 70 percent for anxiety reaction (also diagnosed as major depression, unipolar disorder and post-traumatic stress disorder), and that the evidence supports the veteran's claim for a total disability evaluation based on individual unemployability. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claim. 2. The veteran's service-connected psychiatric disorder does not produce 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. 3. The veteran's only service-connected disability is a psychiatric disorder evaluated as 70 percent disabling. 4. The veteran's service-connected psychiatric disorder, alone, is shown to prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a schedular evaluation in excess of 70 percent for anxiety reaction (also diagnosed as major depression, unipolar disorder and post-traumatic stress disorder) have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 9400 (1994). 2. The criteria for a total schedular rating for anxiety reaction based on individual unemployability have been met. 38 C.F.R. § 4.16(c) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a)(West 1991). That is, he has presented claims which are plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). I. Anxiety Reaction (Also Diagnosed as Major Depression, Unipolar Disorder and Post-Traumatic Stress Disorder) The service medical records show that the veteran was treated for chronic anxiety reaction on three occasions in 1952. Service connection was originally granted for anxiety reaction in June 1953. A 10 percent evaluation was assigned from January 1953. A March 1978 rating decision raised the evaluation to 30 percent from November 1977. In December 1981, the evaluation was increased to 50 percent for anxiety reaction (also diagnosed as adjustment disorder with depressive features and unipolar depressive illness), effective May 1981. Following the Board's most recent remand in January 1994, the RO's August 1994 rating decision raised the evaluation to 70 percent for anxiety reaction (also diagnosed as major depression, unipolar disorder and post- traumatic stress disorder), effective from June 1991. The veteran contends that he is entitled to a 100 percent evaluation. 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 (West 1991); 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. The veteran's anxiety reaction (also diagnosed as major depression, unipolar disorder and post-traumatic stress disorder) is rated under code 9400. A 70 percent evaluation is appropriate where severe social and industrial impairment is demonstrated. A 100 percent evaluation requires 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. The veteran must be demonstrably unable to obtain or retain employment. 38 C.F.R. Part 4, Diagnostic Code 9400 (1994). The veteran has received extensive treatment for his psychiatric condition over the years. For the purposes of determining the current level of impairment, the Board will focus on the numerous records covering the past two years. The veteran was hospitalized from January to March 1993 following the death of his ex-wife, with whom he had continued to be close. The veteran reported feeling overwhelmed, at a loss and suicidal. During the course of his hospital stay, the veteran's condition improved significantly. On discharge, he displayed no anxiety, agitation or hostility. There was normal psychomotor activity and a goal directed outlook. His depression was improved, and there was no looseness of associations or flight of ideas. There was no suicidal or homicidal ideation. The diagnoses were major depression, recurrent, severe; post-traumatic stress disorder, mild to moderate; and dependent personality disorder. His Global Assessment of Functioning (GAF) score was noted as 30 on admission and 70 on discharge. A VA social and industrial survey was conducted in February 1993. The veteran reported that he had not worked since 1980 because he could not tolerate people and he was unable to get enough sleep to maintain employment. He reported as his only friends the Grays, a couple who own a business in his apartment building. Mrs. Gray stated that the veteran appeared very depressed, did not sleep well and did not trust people. She felt that the veteran would never be able to hold a job. The examiner described the veteran as guarded and distrustful. He did not interact with others and had a haunted look from lack of sleep. The examiner stated that the veteran was not employable due first to his age but also due to his inability to interact with other people secondary to his service-connected disability. The veteran underwent examinations by two VA psychiatrists in March 1993. The first examiner stated that the veteran reported anxiety, daily recollections of traumatic events, daily nightmares and persistent flashbacks to his war experiences. He stated that he avoided crowds and was hyper-vigilant. On examination, the veteran's mood was euthymic. His affect was stable with some anxiety noted. There did not appear to be any active psychotic features. Insight and judgment were intact. The diagnoses were post-traumatic stress disorder, moderate; major depression, recurrent, severe; and some dependent personality features. The examiner assigned a GAF score of 50. The second examiner stated that the veteran reported his depression manifested itself as sadness, loss of interest, insomnia, feelings of hopelessness and worthlessness. He also reported frequent bad dreams of war experiences. The veteran reported that he avoided crowds. On examination, his affect was constricted, with decreased intensity and dysphoric mood. There was no thought disorder or psychotic symptoms. He was not suicidal or homicidal. Concentration was poor, but memory was intact, judgment was good and insight was adequate. The veteran had an average fund of knowledge. The examiner stated that considering his current status and multiple medical problems, the veteran was totally disabled and could not hold any gainful employment. The diagnoses were major depression, recurrent, and chronic post-traumatic stress disorder. The examiner assigned a GAF score of 60. Pursuant to the Board's January 1994 remand, the claims folder was returned to one of the VA examiners who conducted the March 1993 examination to allow the psychiatrist to re-examine the veteran and to specify the effect of the veteran's service- connected psychiatric disorder on his social and industrial capacity. In his report dated in April 1994, the examiner noted that the veteran reported continued depression, insomnia, nightmares and flashbacks. He continued to avoid people and public places. On examination, the veteran appeared hyperactive in a wheelchair. His affect was constricted with decreased intensity. His mood was dysphoric and somewhat anxious. The rate of speech was coherent and logical but very slow. There was no evidence of any thought disorder and he was not suicidal or homicidal. His concentration was somewhat impaired but his recall was intact. Judgment was good and insight was adequate. The general fund of knowledge was average. The examiner stated that the veteran's psychiatric symptomatology had increased in intensity and frequency which in itself could make him unemployable for gainful employment. Adding his physical and medical problems to the psychiatric symptoms could lead to total dysfunctioning. The diagnoses were major depression, recurrent type and chronic post-traumatic stress disorder. The GAF score was 45. The recent medical evidence demonstrates that the veteran has a severe impairment of social and industrial capacity as the result of his service-connected anxiety reaction (also diagnosed as major depression, unipolar disorder and post-traumatic stress disorder). This is contemplated by the current 70 percent evaluation. The evidence does not suggest that the veteran has any psychotic symptoms or thought disorders. He displayed good judgment and was not homicidal or suicidal. There is no evidence of the 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 required for a 100 percent evaluation. 38 C.F.R. Part 4, Code 9400 (1994). Based upon the entire medical record, the Board concludes that the veteran is not entitled to an evaluation above 70 percent for service-connected anxiety reaction (also diagnosed as major depression, unipolar disorder and post-traumatic stress disorder). 38 C.F.R. Part 4, Code 9400 (1994). Since the weight of the evidence for and against the claim is not in relative equipoise, the reasonable doubt rule does not apply. 38 U.S.C.A. § 5107 (b) (West 1991); 38 C.F.R. § 3.102 (1994). II. 38 C.F.R. § 4.16(c) (1994) Where the only compensable service-connected disability is a mental disorder assigned a 70 percent evaluation and such mental disorder precludes a veteran from securing or following a substantially gainful occupation, the mental disorder shall be assigned a 100 percent schedular evaluation under the appropriate diagnostic code. 38 C.F.R. § 4.16(c) (1994). The veteran's only service-connected disability is anxiety reaction (also diagnosed as major depression, unipolar disorder and post-traumatic stress disorder). This disability is currently evaluated as 70 percent disabling. The most recent VA medical opinion of record, dated in April 1994, was obtained in part to determine the effect of the veteran's service-connected psychiatric disorder, standing alone, on his ability to work. The examiner stated that the veteran's psychiatric symptomatology had increased in intensity and frequency, and could in itself make him unemployable. He assigned a GAF score of 45. The available evidence indicates that the veteran has a General Equivalency Degree. He was last employed as a truck driver, but he has not worked since 1980. The veteran has multiple physical disabilities which affect his ability to work. However, the recent medical evidence of record, particularly the April 1994 VA opinion, indicates that his service-connected psychiatric disorder would preclude him from securing or following a gainful occupation irrespective of his physical limitations. Accordingly, entitlement to a 100 percent evaluation for anxiety reaction (also diagnosed as major depression, unipolar disorder and post-traumatic stress disorder) is granted. 38 C.F.R. § 4.16(c) (1994). ORDER A schedular evaluation in excess of 70 percent for anxiety reaction (also diagnosed as major depression, unipolar disorder and post-traumatic stress disorder) is denied. A total schedular evaluation for compensation purposes based on individual unemployability is granted, subject to the applicable laws and regulations governing the payment of monetary awards. JAN DONSBACH 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.