Citation Nr: 0001980 Decision Date: 01/25/00 Archive Date: 02/02/00 DOCKET NO. 98-15 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an increased evaluation for anxiety reaction, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Douglas E. Massey, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied the veteran's claim for an evaluation in excess of 30 percent for his service- connected anxiety reaction. The veteran, who had active service from November 1943 to March 1946, appealed that decision to the Board. The Board notes that the veteran had requested a hearing before a traveling section of the Board. In correspondence dated in October 1998, however, the veteran indicated that he no longer wanted a hearing. As the veteran has effectively withdrawn his request for a hearing, the Board will now decide the case on the current evidence of record. FINDINGS OF FACT 1. The veteran suffers from memory impairment and social isolation due to his nonservice-connected alcohol-induced dementia. 2. Symptomatology associated with the veteran's service- connected anxiety reaction is productive of social and occupational impairment with occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for anxiety reaction have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.125-4.130, Diagnostic Code 9400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background As a preliminary matter, the Board finds that the veteran's claim for an increased evaluation for anxiety reaction is plausible and capable of substantiation and is therefore well grounded within the meaning of 38 U.S.C.A. § 5107(a). The Board also is satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required in order to comply with the duty to assist. See 38 U.S.C.A. § 5107(a). By an October 1950 rating decision, the RO granted service connection for a nervous condition characterized as "anxiety reaction with moderate social and industrial inadaptability." This disability has since been recharacterized as simply "anxiety reaction" and is currently evaluated as 30 percent disabling. The veteran filed a claim in January 1998 in which he requested that this disability be reevaluated. The RO denied the veteran's claim for an evaluation in excess 30 percent for anxiety reaction, and this appeal ensued. In denying the veteran's claim, the RO considered VA outpatient treatment reports dated from August 1996 to February 1998. Of particular relevance, an August 1996 entry noted that the veteran began having nightmares one and a half years prior at about the time his wife passed away. The veteran's son told the clinician that the veteran suffered from increased isolation, nightmares in which he would wake up screaming, and difficulty adjusting to living with his son. It was also noted that the veteran had a history of alcohol abuse. The veteran denied both suicidal and homicidal ideation, as well as delusions and hallucinations. When seen in October 1996, it was noted that the veteran was withdrawn and had disturbing thoughts. He also reported insomnia, sleeping only three to four hours a night. The diagnosis was dysthymia. Subsequent treatment reports reflect that the veteran's condition appeared to become more stable. An entry dated in December 1996 noted that the veteran had a problem getting along with people. However, he said that he had no difficulty sleeping, and the clinician concluded that the veteran was stable. When seen in February 1997, the veteran reported an improving level of functioning and said he was now sleeping well. He denied hallucinations or morbid thoughts. The clinician's assessment was "improved." The veteran requested more medication in March 1997, at which he was alert and oriented and had no emotional complaints. In connection with this claim, the veteran underwent a VA psychiatric examination in February 1998 to evaluate the nature and severity of his anxiety reaction. The veteran was noted to be a 72-year-old widower and appeared at the examination with son. During the interview, the veteran said that he liked living with his son. His chief complaint what that "my nerves are real bad; I can't stand anything." He also complained of nightmares and memory problems. He last worked in 1979 and collected cans for a hobby. He reported that he had several friends at a senior citizens center where he would go approximately once every two weeks. He said he had a good relationship with his son and daughter-in-law and was not withdrawn. He admitted that he had a problem with impulse control in that he enjoyed gambling. He also disclosed that he had some problems with anger control, relating an incident in which he had broken pictures at his son's home after drinking alcohol and becoming angry. The veteran believed that his emotional health had deteriorated since his last rating examination. The veteran described a typical day as getting up between 4:00 and 6:00 a.m., eating breakfast, feeding his dogs, and just sitting around. He said he enjoyed visiting his step- grandchildren who lived nearby. He described his emotional problems as "bad," but could not elaborate. He said that he felt depressed most of the day. He related that both his appetite and sleep were poor, that his energy level was low and that he generally felt worthless. He said that he had difficulty concentrating and admitted to abusing alcohol once every three weeks. He explained that he was able to bathe, dress and attend to the wants of nature without assistance, but that his son would help him shave because he was nervous. On mental status examination, the veteran appeared casually dressed, neatly groomed and clean shaven. He was cooperative and had fairly good eye contact. An obvious tremor was observed in both hands. His speech was rather slow and the volume was soft. He denied feeling depressed or anxious at the time of examination. His affect was somewhat blunted but appropriate. He described auditory hallucinations, as well as visual hallucinations in which he would see his grandmother. He said that this phenomenon frightened him. His thought processes were slow but goal directed and coherent. No language impairments were noted. There were also no obsessive-compulsive disorders present. He denied any suicidal ideation, but did admit to thoughts of hurting his stepson over a family feud. He reported that his last antisocial behavior was five years ago when he was involved in a fight. He was unable to interpret a proverb presented, and his thinking was very concrete. His concentration was very poor, and he could not perform any of the serial-seven calculations. He was oriented times five. His insight and judgment were very poor. Recent memory was also poor, as he could not recall any of three objects after five minutes. He knew his current address but did not know any current events. His remote memory was good, as he knew the location and date of his birth, his mother's maiden name and the names of his children. Based on these findings, the examiner concluded with Axis I diagnoses of dysthymic disorder, alcohol abuse, and alcohol- induced persisting dementia. The examiner assigned a current Global Assessment of Functioning (GAF) score of 50 for dysthymia and 60 for the past year. The examiner clarified that approximately 60 percent of the veteran's GAF score was due to dementia and that 40 percent was due to dysthymia. The examiner also concluded that the veteran was incapable of managing his VA funds and was thus incompetent for VA purposes. The RO notified the veteran in August 1998 that it was proposing to declare him incompetent for VA purposes. In November 1998, the RO issued a decision in which it determined that the veteran was not competent to handle disbursement of VA funds. That decision was based on the February 1998 examination report which contained diagnoses of dysthymic disorder and alcohol-induced persisting dementia. The veteran was afforded an additional VA psychiatric examination in December 1998 to identify the symptomatology associated with his service-connected anxiety reaction as opposed to his nonservice-connected dementia. The examiner stated that he had reviewed the veteran's claims file. Based on that review, the examiner noticed that the veteran's memory and depression became more of an apparent problem in 1995 at about the time his wife died. At that time, the veteran suffered from nervous spells in which he was tense and anxious most of his life. He also had occasional nightmares of the war, but otherwise slept normal. It was also noted that the veteran complained of anxiety related symptoms such as shortness of breath, indigestion, decreased memory and concentration, and variable irritability. However, he appeared to be relatively social and would visit people, go to town and participate in a senior citizens program. The examiner explained that the veteran's memory problems had worsened since 1995, causing him to become more socially isolated and remain at home. It was reported that the veteran was unable to drive an automobile and often forgot where he was going. The veteran's son gave an example of the veteran walking out the door with his cane, only to return not knowing his whereabouts. The veteran would hallucinate at times in which he talked to his deceased wife. He was able to dress himself, but was unable to prepare meals. The examiner noted the veteran's history of alcohol abuse, which occurred occasionally when friends would bring him alcohol. The most notable symptom was depression which began after his wife passed away. The examiner stated that it was somewhat difficult to differentiate the symptoms related to the veteran's depression from his dementia, and to state whether the veteran's overall level of functioning would improve if his depression were better treated. The examiner further added that there was no way to break up the veteran's GAF score to that which was service-connected and nonservice-connected, as it was a unitary description of the overall level of functioning. However, the examiner explained that he could go back to the period prior to 1995 when the veteran's depression and dementia were not so apparent, at which time the veteran's GAF score was 55. The examiner assigned the veteran a current GAF score of 35, which had diminished since 1995 based on the fact that dementia, depression and other medical problems had deteriorated the veteran's intellectual, physical and emotional abilities. The examiner concluded that the veteran's mental status examination was not significantly different from that done in March 1998. The examiner concluded with Axis I diagnoses of generalized anxiety disorder; dementia, not otherwise specified (probably alcohol induced); adjustment disorder with depression; rule out depressive disorder, otherwise not specified; and alcohol abuse, episodic. The examiner assigned a GAF score of 55 for the veteran's service-connected disability, and an overall GAF score of 35 as a result of the veteran's dementia, depression, and other medical problems. II. Legal Analysis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already 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. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b); Gilbert v Derwinski, 1 Vet. App. 49, 55-57 (1990). The Board notes that anxiety reaction is evaluated under the general rating formula for rating mental disorder. Under these criteria, a 30 percent evaluation is assigned for occupational and social impairment with an 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, and recent events). See 38 C.F.R. § 4.130, Diagnostic Code 9400. A 50 percent evaluation is warranted where there is 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned where there is 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 work-like setting); and an inability to establish and maintain effective relationships. Id. Finally, a 100 percent evaluation is warranted where there is 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; and memory loss for names of close relatives, own occupation, or own name. Id. In applying the above criteria, the Board also notes that in Mittleider v. West, 11 Vet. App. 181 (1998), the United States Court of Appeals for Veterans Claims (Court) held that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102, which requires that reasonable doubt on any issue be resolved in the veteran's favor, clearly dictates that such signs and symptoms be attributed to the service-connected condition. Applying the facts of this case to the above criteria, the Board finds that the veteran's anxiety reaction does not warrant an evaluation in excess of 30 percent under the criteria for rating mental disorders. The Board notes that the veteran's most pronounced psychiatric symptoms which would adversely impact industrial adaptability appear to be impaired memory, cognitive decline and social isolation. The Board emphasizes, however, that VA examiners have consistently attributed these symptoms to the veteran's nonservice-connected dementia, which is possibly related to alcohol abuse. The February 1998 examination report included the examiner's opinion that 60 percent of the veteran's GAF score was attributable to dementia. More importantly, after reviewing the veteran's claims file, a VA examiner in December 1998 concluded that the veteran's problems with short-term memory and concentration were related to his nonservice-connected dementia, which had also resulted in his increased social isolation. Given these opinions, the Board is not required to consider the veteran's memory problems, cognitive decline, and social isolation in evaluating his service-connected anxiety reaction. See Mittleider, supra. In evaluating the symptomatology associated with the veteran's service-connected anxiety reaction, the clinical evidence reveals that the veteran demonstrates some manifestations described in the criteria for a 50 percent evaluation under the criteria for evaluating mental disorder, (e.g., flattened affect and disturbances of motivation and mood, i.e., depression). In any event, the veteran clearly does not exhibit most of the symptoms described in the criteria for a 50 percent evaluation as a result of his service-connected anxiety reaction. For example, there is no evidence of circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; or difficulty in establishing and maintaining effective work and social relationships. Although the evidence reflects that the veteran has experienced increased social isolation as a result of his nonservice-connected dementia, the veteran enjoys a close relationship with his son, his daughter-in- law, and his step-grandchildren. The veteran also said that he had several friends at a nearby senior citizens center where he would visit every two weeks. The veteran also admitted that friends would occasionally visit him and drop off alcohol. The veteran has also indicated that he suffered from hallucinations, delusions and impaired impulse control, symptoms which generally warrant an evaluation in excess of 30 percent under the schedule for rating mental disorders. Even considering the veteran's statements concerning hallucinations, mental status examinations have consistently shown the veteran to be oriented with no objective evidence of hallucinations or delusional thinking. VA outpatient treatment reports also failed to disclose that the veteran suffered from hallucinations or delusions. In addition, the Board has considered the veteran's statement concerning the incident in which he got angry and broke several pictures belonging to his son. The Board would point out, however, that the veteran admitted that the incident occurred after drinking alcohol. At his February 1998 examination, moreover, the veteran related that his most recent antisocial behavior occurred five years prior when he was involved in a fight. Under these circumstances, the Board does not find that the veteran's service-connected anxiety reaction is productive of hallucinations, delusional thinking, or impairment of impulse control. Furthermore, in an attempt to differentiate the symptoms related to the veteran's service-connected anxiety reaction from his nonservice-connected dementia, a VA examiner assigned a GAF score of 55 for the service-connected anxiety reaction. Under the Diagnostic Criteria from DSM-IV, a score of 55 is appropriate where behavior is manifested by moderate symptoms (e.g. flat affect, circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends and conflicts with peers and co-workers). Quick Reference to the Diagnostic Criteria from DSM-IV 46-47 (1994). The Board finds that this score is most consistent with a 30 percent evaluation under the criteria for evaluating mental disorders. In short, the Board finds that the preponderance of the evidence is against an evaluation in excess of 30 percent for the veteran's anxiety reaction under the criteria for evaluating mental disorders. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55-56. The potential application of various provisions of Title 38 of the Code of Federal Regulations (1999) have been considered whether or not they were raised by the veteran as required by the Court's holding in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board has considered whether an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) is warranted. In the instant case, however, there has been no showing that the veteran's anxiety reaction has independently caused marked interference with employment (i.e., beyond that contemplated in the assigned 30 percent evaluation), necessitated frequent periods of hospitalization, or otherwise rendered impracticable the application of the regular schedular standards. The veteran said that he had been retired for many years, and there is no evidence of recent psychiatric admissions. Under these circumstances, the Board determines that the criteria for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 237, 239 (1996); Shipwash v. Brown, 8 Vet. App. at 227. ORDER An evaluation in excess of 30 percent for anxiety reaction is denied. RAYMOND F. FERNER Acting Member, Board of Veterans' Appeals