BVA9507756 DOCKET NO. 93-11 295 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for a dysthymic disorder, evaluated as 70 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Pope, Counsel INTRODUCTION The veteran had active service from August 1943 to August 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1992 rating decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his dysthymic disorder, his only service-connected disability, is productive of greater impairment than reflected by the 70 percent disability rating currently assigned and prevents him from maintaining gainful employment. He reports that he does not socialize, is afraid to leave the general area of his home, has increased incidents of "bad thoughts" including thoughts of suicide, and has increased periods of depression and crying. 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 file. 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 in favor of a 100 percent rating for the veteran's dysthymic disorder. FINDINGS OF FACT 1. All relevant evidence referable to the current appeal has been requested by the RO. 2. The veteran's service-connected dysthymic disorder is productive of severe impairment of social and industrial adaptability. 3. The veteran's dysthymic disorder, his only service-connected disability, precludes him from engaging in substantially gainful employment. CONCLUSION OF LAW A 100 percent rating for the veteran's service-connected dysthymic disorder is warranted. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 4.16(c), 4.132, Code 9405 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the veteran's claim is well- grounded within the meaning of 38 U.S.C.A. § 5107, and that all relevant facts have been properly developed for this appeal. Disability evaluations are determined by the application of a schedule for disabilities. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. The veteran's service medical records disclose that he was hospitalized in May 1945 following an intracranial injury aboard ship. He was found unfit for continued service due to the residuals of the intracranial injury and was discharged in August 1945. The post-service medical records disclose that service connection for post concussion syndrome psychoneurosis, anxiety type, evaluated as 30 percent disabling, has been in effect since August 17, 1945, the day following the veteran's separation from service. A June 1983 rating decision, based on March 1983 VA neurological and psychiatric examination diagnoses, changed the nomenclature of the veteran's service-connection disability to severe dysthymic disorder with chronic anxiety features and post- traumatic headaches and assigned a 50 percent disability rating, effective from November 22, 1982, the date of receipt of the veteran's claim. A July 1990 rating decision, following a June 1990 Board decision, increased the schedular disability rating for the veteran's dysthymic disorder to 70 percent, effective from June 1987. The veteran's dysthymic disorder is evaluated under Diagnostic Code 9405 of the VA rating schedule which provides a 70 percent rating for psychoneurotic symptoms productive of severe impairment of the ability to establish and maintain effective or favorable relationships with people and of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent schedular rating is warranted when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community, and 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 and a demonstrable inability to obtain or retain employment. 38 C.F.R. § 4.132, Code 9405. The 70 percent rating has remained in effect to date. The veteran was hospitalized at VA facilities from June to August 1987, and from March to May 1988, with depression and suicidal ideations. He asserted that his service-connected psychiatric disability, mainly the increased depression and headaches, were a major factory in his retirement from employment as a contractor in 1975. VA outpatient treatment records from June 1989 to August 1992 reveal continued treatment for the veteran's service-connected psychiatric disability. He continued to complain of headaches which forced him to all activity and rest. In June 1992 he reported increased crying spells and depression, which he attributed to a decrease in dosage of his prescribed Prozac. During the most recent VA psychiatric examination, conducted in November 1992, the veteran reported episodes of depression and constant thoughts of suicide. He complained of increased, intolerable headache pain present throughout the day, and often interrupting his sleep. He indicated that Prozac did not alleviate all of his depression. He stated that he did not like to associate with others "because he thinks they think he is 'crazy.'" It was noted that he lived alone after two failed marriages, tended not to socialize, and spent most of his day watching television and listening to the radio. A mental status examination revealed that his speech was relevant and coherent. Some delusional thinking in relation to social contacts was noted. His attention span and concentration were described as "fairly" normal, and his memory as "fairly" intact. The examiner also noted that he had "some" insight. The diagnosis was dysthymia, in partial remission. Upon review of the medical evidence the Board finds that the veteran's dysthymic disorder is manifested by a variable level of symptomatology, centered around episodes of severe headaches and depression, which produce social problems and a desire for isolation. The record is replete with references to difficulties the veteran has socializing, including interaction immediate family members. In our opinion, the record as it is currently constituted is indicative of severe impairment, although not total inadaptability, thereby warranting the 70 percent rating currently assigned under Diagnostic Code 9205. In cases in which the only compensable service-connected disability is a mental disorder assigned a 70 percent evaluation, and the mental disorder precludes the veteran from securing or following a substantially gainful occupation, a 100 percent schedular evaluation under the appropriate diagnostic code, rather than a total disability rating based on unemployability, is for application. 38 C.F.R. § 4.16(c). A review of the veteran's educational background and employment record discloses that he has an tenth grade education and has not worked since 1975. He asserts, essentially, that his employment prospects are nil. His history of social difficulties is well documented. Although the veteran has several nonservice-connected disabilities of some severity, there is no medical evidence which contradicts the conclusion that he is unable to work due to schizophrenia, his sole service-connected disability. Under these circumstances, the preponderance of the evidence supports the assignment of a 100 percent schedular rating under the terms of 38 C.F.R. § 4.16(c). The benefit of the doubt has been resolved in the veteran's favor. 38 U.S.C.A. § 5107. ORDER A 100 percent schedular evaluation for a dysthymic disorder is granted, subject to controlling regulations applicable to the payment of monetary benefits. WAYNE M. BRAEUER 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.