Citation Nr: 0006915 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 95-09 086 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to an increased rating for an anxiety disorder, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Debbie A. Riffe, Associate Counsel INTRODUCTION The veteran served on active duty from November 1943 to May 1945. This case comes to the Board of Veterans' Appeals (Board) from an April 1994 RO decision which denied an increase in a 50 percent rating for an anxiety disorder and denied a total disability compensation rating based on individual unemployability (TDIU rating). In January 1997, the Board remanded the case to the RO for additional development of the evidence. The Board notes that the issue of a TDIU rating is moot and will not be addressed in the present decision, in light of the Board's grant of a 100 percent schedular rating for an anxiety disorder. FINDING OF FACT The veteran's service-connected anxiety disorder is productive of total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating of 100 percent for an anxiety disorder have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9400 (1996); 38 C.F.R. § 4.130, Diagnostic Code 9400 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran served on active duty in the Army from November 1943 to May 1945, including combat duty as an infantryman during World War II. His service medical records show that he was treated for a cerebral concussion from a shell blast as a result of enemy fire. Subsequently, a medical board declared him unfit for further duty on the basis of a psychoneurosis, anxiety state, and he was discharged from service based on this disability. In a May 1945 RO decision, service connection was established for an anxiety disorder with a 50 percent rating. In a May 1946 RO decision, the disability rating was reduced to 10 percent. In an April 1977 decision, the RO assigned a 50 percent rating for the anxiety disorder, and such rating has remained in effect to the present. An October 1992 private medical record shows that the veteran was diagnosed with anxiety/depression and that he took Librium. In a March 1993 statement, Albert Chen, M.D., indicated that he initially saw the veteran in September 1992. He indicated that the veteran appeared very high strung, nervous, shaky at times, and tremulous, and that he became very sentimental. He noted that the veteran's mental condition was more at ease after he stayed sober from alcohol but that anxiety still remained. Dr. Chen noted that the veteran had palpitations and hyperventilation, avoided any interactions with crowds, and became easily tired, but that he was otherwise in good contact with reality without any perceptual disorder. He stated that the veteran's interpersonal relationships were generally very limited and that he did not leave his home too much because he felt more comfortable in his house. He noted that the veteran showed some signs of exaggerated startle response, had difficulty with concentration, and easily became irritable and edgy. Dr. Chen opined that the veteran suffered from generalized anxiety disorder, most likely resulting from his World War II combat experience, and he deemed the veteran incapable of managing any gainful employment. He stated that the veteran was receiving individual psychotherapy augmented with chemotherapy such as Librium. In April 1993, the veteran submitted a claim for a TDIU rating. In his application, he reported that he had completed the seventh grade and that he last worked full-time in 1971. He reported that he left his last job because of his disability and has not tried to obtain employment since then. He denied receiving any education or training since he became too disabled to work. The veteran identified his nervous condition and his varicose veins (which are his only service-connected disabilities) as preventing him from securing or following any substantially gainful occupation. On a June 1993 VA examination, it was noted that the veteran was quite anxious during the interview. The examiner noted that the veteran had been seen previously and that on the current examination he was much more to the point and much more able to stay on the subject than previously. The veteran reported that he was unable to do very much due to his back and nerves which did not allow him to go out or to see people very much. He was logical and coherent. He was somewhat rambling and circumstantial but able to be brought back to the subject. There was no evidence of a major thought disorder. His judgment appeared to be fair. The examiner deemed him able to handle benefits on his own behalf. The diagnosis was generalized anxiety disorder (Axis I), and the veteran was given a Global Assessment of Functioning (GAF) scale score of 60 (Axis V). In an April 1994 decision, the RO denied an increase in a 50 percent rating for an anxiety disorder and a TDIU rating. In June 1994, the veteran indicated his disagreement with the RO decision. In a July 1994 statement, Dr. Chen noted that the veteran's nervous condition had fluctuated from time to time since service. He stated that the veteran consistently presented symptoms and signs of severe anxiety, panic attacks, hyperventilation, and being high strung. He stated that the veteran could not concentrate or tolerate any pressure or stress. Dr. Chen opined that the veteran was not able to perform the physical and mental acts required by gainful employment due to his service-connected nervous disorder. In an October 1994 statement, Dr. Chen provided an update on the veteran's clinical condition. He noted the veteran had a low threshold of tolerance for anxiety, stress, and tension. He related that the veteran recently had problems adjusting to an apartment living environment on account of the unbearable noise level which aggravated him to the point where he became agitated and shaky. Dr. Chen stated that the veteran had great difficulty in adapting to community living also because any interaction with others generated a lot of tension, anxiety, and frustration. He noted that the veteran continued to exhibit signs and symptoms of anxiety, hyperventilation, agitation, and outbursts of emotion despite his medication. Dr. Chen found the veteran's ability to maintain effective relationships with others was so severely impaired that his daily life was miserable and frustrating. He found that the veteran's quality of life was adversely affected and that he was practically housebound and in isolation. Dr. Chen opined that the veteran was incapable of obtaining or retaining any gainful employment. In his March 1995 substantive appeal, the veteran stated that his total inability to establish and maintain normal and productive social relationships compelled him to live in almost complete isolation. He indicated that any dealings with other people led to a build-up of tension, anxiety, and frustration. He asserted that severe anxiety led to frequent panic attacks which involved elevated levels of anxiety, hyperventilation, and stress. He claimed that his disability kept him at home where he indulged in alcohol to escape total depression. On a December 1995 VA consultation, the veteran related intrusive recollections from World War II combat. His wife related that he repeated himself all the time and frequently talked about the war. In the diagnosis, the staff psychologist noted that the veteran showed several symptoms of combat-related post-traumatic stress disorder (PTSD) with depression. The veteran was referred for psychological testing. A February 1996 VA psychological test report notes that the veteran underwent testing in January 1996 and that the results of the tests were consistent with diagnoses of mild chronic organic brain syndrome and dysthymic disorder with features of generalized anxiety disorder and combat-related PTSD. VA outpatient records in March 1996 show that the results of the psychological testing were explained to the veteran. A staff psychologist allowed the veteran to "vent" and provided psychological support. The veteran was referred to his primary care physician for evaluation for an anti- depressant. Subsequent VA outpatient records in 1996 show that the veteran received ongoing psychological support. In June 1996, he was doing well on Librium. In July 1996, the veteran indicated that Librium did not seem to be helping anymore. The staff psychologist stated that the veteran was noticeably anxious at that time. In August 1996, the veteran reported that he felt less tense since he had been on a new medication and his Librium was discontinued. There were no new psychological complaints at that time. In November 1996, there had been no change in the veteran's mental status since his last evaluation. In January 1997, the Board remanded the case to the RO for additional development, including obtaining treatment records, another VA examination, and readjudication of the claim under new regulatory criteria. In a May 1997 statement, Dr. Chen noted that since service the veteran had always had ongoing outpatient psychiatric treatment and never been hospitalized for psychiatric illness. He opined that the veteran suffered from generalized anxiety disorder with features of depression and episodic alcohol abuse. He noted that the veteran had been sober since December 1992. Dr. Chen placed the veteran on Librium to alleviate his anxiety. From July to August 1997, the veteran was hospitalized at the VA following one month's duration of worsening headache, confusion, and ataxia, accompanied by multiple episodes of falls. A cranial computerized tomography (CT) scan revealed a bilateral subdural hematoma with significant mass effect. Thereafter, the veteran underwent bilateral craniotomy with evacuation. A follow-up cranial CT scan revealed resolution of the bilateral subdural hematoma. Inpatient psychology records in August 1997 show that the veteran was provided supportive psychotherapy while he was in rehabilitation. An August 1997 psychology note indicates that the veteran presented in a friendly, cooperative mood and that there was no evidence of anxiety. The note indicates that he underwent psychological testing which revealed that he was functioning within the demented range on cognitive functioning. His diagnoses at this time were alcohol dependence (in full and sustained remission for eight months) and adjustment disorder with depressed mood. In September 1997, the veteran underwent a psychiatric evaluation by Dr. Chen for VA purposes. It was noted that since a June 1997 head injury from a fall the veteran had been "run down," tired, and still very nervous. Dr. Chen noted that the veteran was taken off Librium due to his accident. According to the veteran's wife, the veteran had been more anxious, shaky, and forgetful ever since his accident. On a mental status examination, the veteran appeared very hyper, high strung, nervous, and feeling like "huffing and puffing" as if appearing for the examination was a large task for him. He showed noticeable anxiety and nervousness since he had not been on any medication. The veteran's wife reported that the veteran was constantly high strung and snappy with loud outbursts. There was pressure of speech, showing psychomotor activity. There were no signs suggestive of delusional ideas, thought disorder, or visual or auditory hallucination. The veteran's affect was somewhat constricted and his mood was low. Lately, due to the complication of the accident, the veteran was more nervous and panicked. It was noted that he sometimes did not know how to cope and that his capacity for impulse control was marginally well. There was no contemplation of suicidal or homicidal ideation. Regarding his cognitive functioning, the veteran was found to be intact. There was no cloudiness of consciousness, and he was responsive and alert, i.e., "constantly cunning and vigilant". He was oriented to time, place, and person. He tended to be forgetful about recent events. Dr. Chen noted the veteran had not been attending church because he felt very nervous in crowds. While talking about his problem, the veteran's hands became shaky and tremulous. His intellectual capacity was found to be dwindling to some extent. He had little insight regarding his problem, and his judgment was marginally poor at that point. The veteran's diagnosis on the psychiatric evaluation was generalized anxiety disorder with features of panic disorder (Axis I). His GAF score was 45 currently and 75 in the past year. Dr. Chen stated that the veteran's occupational and social impairment was quite noticeable, due to his constant anxiety, high strung and nervous nature, panic attacks, inability to maintain emotional composure, and lack of social skills and self care. He opined that the veteran's condition had shown deterioration since he was last seen in 1995, and he deemed the veteran as not totally capable of managing his financial affairs. In an October 1997 addendum to his September 1997 psychiatric evaluation report, Dr. Chen diagnosed the veteran with generalized anxiety disorder with features of panic disorder, which was service-related to the combat experience in World War II (Axis I). The veteran's GAF score was 45, showing serious impairment in his social/occupational functional capacity, inability to maintain any gainful employment, and inability to maintain effective relationships with others. Dr. Chen opined that the veteran was totally disabled, that he was unable to maintain gainful employment, and that he was marginally able to maintain his financial affairs. Numerous medical records in recent years, dated into 1998, show treatment for the veteran's service-connected psychiatric disorder, but the records also note treatment for serious non-service-connected physical conditions. In an April 1998 decision, the RO determined the veteran to be incompetent to manage his VA funds. His spouse subsequently became his custodian for VA purposes. VA records in July 1998 show that the veteran was admitted for respite care during which he underwent a comprehensive physical evaluation. On admission, the veteran's wife verbalized concern over the veteran's behaviors at home, such as appearing very agitated. On an evaluation, regarding role relationships the veteran reported that he had no problems with his family, and he did not describe any relationships with friends. His physical appearance was reported as neat and his attitude was described as cooperative. The veteran reported no hallucinations or delusions. II. Analysis Initially, it is noted that the veteran's claim for an increase in a 50 percent rating for an anxiety disorder is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented claims which are plausible. The Board is satisfied that all relevant evidence has been properly developed and that no further assistance is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). When rating the veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the present level of disability is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. During the course of the veteran's appeal, the regulations pertaining to rating psychiatric disabilities were revised. The veteran's anxiety disorder was initially evaluated under 38 C.F.R. § 4.132, Diagnostic Code 9400 (effective prior to November 7, 1996). Under this code, a 50 percent rating is warranted where the ability to establish or maintain effective or favorable relationships with people is considerably impaired and that by reason of psychoneurotic symptoms the reliability, flexibility, and efficiency levels are so reduced as to result in considerable industrial impairment. A 70 percent rating is warranted where the ability to establish and maintain effective or favorable relationships with people is severely impaired and that psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent rating is warranted where the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; or where there are 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; or the individual is demonstrably unable to obtain or retain employment. On November 7, 1996, the rating criteria for anxiety disorder were revised and are now found in 38 C.F.R. § 4.130, Diagnostic Code 9400. The revised criteria are cited, in pertinent part, below: 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..................................... ......100 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............................ ....................................70 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............................ ...................50 As the veteran's claim for an increased rating for anxiety disorder was pending when the regulations pertaining to psychiatric disabilities were revised, he is entitled to the version of the law most favorable to him. Karnas v. Derwinski, 1 Vet. App. 308 (1990). Here, either the prior or current rating criteria may apply, whichever are most favorable to the veteran. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only as it affects earning capacity. 38 C.F.R. § 4.129 (effective prior to November 7, 1996); 38 C.F.R. § 4.126 (effective November 7, 1996). A review of the record shows that the veteran's service- connected anxiety disorder has been rated 50 percent since 1977. More recently, he has received ongoing supportive psychotherapy for his anxiety disorder through the VA and Dr. Chen, and at least until his hospitalization for a subdural hematoma in July 1997 he was placed on medication for psychiatric symptoms. Medical records in recent years show that the veteran's condition has deteriorated, particularly since his surgery for subdural hematoma, although he has not been hospitalized for his service-connected psychiatric disorder. In a June 1993 VA examination, the veteran was given a GAF score of 60, which represents moderate symptoms or moderate difficulty in social and occupational functioning. However, at his last comprehensive psychiatric evaluation conducted by Dr. Chen in September 1997 for the VA, the veteran's GAF score was 45, which represents serious symptoms or serious impairment in social and occupational functioning. Moreover, in an October 1997 addendum to his examination report, Dr. Chen opined that the veteran was unable to maintain gainful employment and effective relationships with others and was totally disabled due to generalized anxiety disorder. (In fact, Dr. Chen previously deemed in 1993 and 1994 that the veteran's anxiety disorder rendered him unable to obtain or maintain gainful employment.) The record does not show any other recent opinion to the contrary which pertains to the effect of the veteran's service-connected psychiatric disorder on his ability to maintain employment. On the other hand, medical records from recent years suggest the veteran's serious non- service-connected physical ailments also have a major adverse impact on his ability to work. After considering all the evidence, the Board finds it is about equally divided on whether the veteran's service- connected anxiety disorder alone now results in total occupational and social impairment (the criteria for a 100 percent rating). With application of the benefit-of-the- doubt rule, this matter is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b). For these reasons, an increased rating to 100 percent for an anxiety disorder is warranted. ORDER An increased rating to 100 percent for an anxiety disorder is granted. L. W. TOBIN Member, Board of Veterans' Appeals