BVA9501776 DOCKET NO. 91-47 527 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased evaluation for anxiety reaction, currently rated as 10 percent disabling. 2. Entitlement to an increased evaluation for headaches, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C.A. Skow, Associate Counsel INTRODUCTION The appellant served on active duty from February 1943 to April 1948 and from August 1950 to October 1953. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a March 1991 rating decision of the Winston-Salem, North Carolina, Department of Veterans Affairs Regional Office (VARO). In a statement dated March 16, 1994, the veteran's representative requested service connection for wounds of the left hand and for right leg fracture residuals. These issues are referred to VARO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that his service-connected anxiety reaction warrants an increased disability evaluation because of severe depression, and his desire to stay at home and avoid interacting with people. He further contends that his headache disorder is of sufficient severity to warrant an increased disability evaluation. 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 weight of the evidence is against an increased disability evaluation for the anxiety reaction disorder. It is further the decision of the Board that an increased disability evaluation for a headache disorder is not warranted. FINDINGS OF FACT 1. The appellant's anxiety reaction disorder is currently manifested by subjective complaints of nervousness, tension, and a desire to stay home, with objective evidence for a stable marriage of 35 years duration and close relationships with his two children, and assessment of functioning representative of no more than mild social and industrial impairment. 2. The appellant's service-connected residuals of head trauma are currently manifested by subjective complaints for severe incapacitating headaches, with negative clinical evidence for physical or neurologic deficit. CONCLUSIONS OF LAW 1. The schedular criteria for a disability evaluation in excess of 10 percent for the appellant's service-connected anxiety reaction disorder are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. § 3.321, Part 4, Diagnostic Code 9400 (1993). 2. The appellant's residuals of head trauma are no more than 10 percent disabling pursuant to the schedular criteria. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 3.321, Part 4, Diagnostic Code 8045-9304 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by VARO and that a disposition on the merits is in order. I. Background The record reflects that the appellant's face and head were struck by shrapnel in 1943 during service. Subsequently, he complained of headaches and nervousness. On VA neurological examination in January 1954, no organic findings were found. At that time, the appellant was diagnosed with a chronic mild anxiety reaction. By rating action dated February 1954, the appellant was service connected for an anxiety reaction disorder at the noncompensable disability level. A statement from a private neurologist dated August 1980 reflects that the appellant's chronic recurring headaches were possibly secondary to a war injury and recurring episodes of loss of consciousness. In September 1980, a VA neuropsychiatric examination was conducted. By history, the appellant was tense and anxious since he served in the military. He reported constant headaches on the left side of his head which radiated toward the neck and shoulder, along with blackout spells and a history of anxiety reaction. He further reported taking Ativan and Darvon with little relief. The appellant indicated that he was 55 years old, had an eighth grade education, and had been married for 23 years with two children. He noted that he "gets along well with his wife." He indicated that he worked in the timber industry, but that he last worked seven months ago. Neurological findings indicated decreased sensory function over the left hand and up to the shoulder girdle, and over the entire left side of the face, head, and neck. The examiner noted that the appellant's reaction did not conform to any nerve distribution patterns. Muscle strength in the left hand could not be elicited. Psychiatric findings noted the appellant to be alert, cooperative, friendly, and coherent with a goal directed style of speaking. Clinical findings were absent for loosened associations, flight of ideas, bizarre motor movements, and delusions or hallucinations. Appropriate affect, good memory, adequate insight and judgment, and an adequate intellectual capacity were noted. The appellant was diagnosed with alleged black out spells, headaches, and a history of anxiety reaction. By rating action dated October 1980, the appellant's service- connected anxiety reaction with headaches was assigned a 10 percent disability evaluation. VA outpatient treatment reports and hospital summaries dated between August 1986 and September 1991 reflect treatment for various disorders not currently before the Board, and include numerous complaints for headaches. On VA outpatient treatment record dated February 1989, the appellant was reported to have a progressive decrease in vision of the left eye associated with headaches. On VA examination in July 1992, the appellant was noted to be 68 years old with a history of increasing physical disabilities. He reported that migraine headaches occur over his left eye at the site of an old shrapnel wound and have persisted since 1943. He further reported that his nerves have not improved, he remains restless and anxious, and that he experiences episodes of falling and staggering. Clinical findings noted that the appellant was neatly dressed in casual clothing, appeared alert and tense, and displayed adequate verbal productivity, orientation, memory, insight and judgment. All diagnoses were deferred, and the appellant was referred to a VA Hospital for a period of observation and evaluation. In March 1993, the appellant entered a VA Hospital for a period of observation and evaluation. The appellant was noted to have been married twice and retired for more than 10 years with limited finances. By history, he had not been previously admitted to a psychiatric hospital or received regular psychiatric care. The appellant reported chronic anxiety with headaches for about 50 years duration. He further reported taking Aspirin 3-4 time per day for headache relief, and taking no medication for anxiety control. However, he reported taking Benadryl at bedtime until recently when his medication supply became depleted. During his period of hospitalization in March 1993, the appellant denied major depression, suicidal ideation, a history of violence or psychosis, abuse of alcohol or drugs, obsession or compulsion, and panic attacks or phobias. He further denied any recent depressive symptoms and any recent stressors at home. The appellant reported that he attends church regularly, has a stable marriage of 35 years duration, and is close with his children. It was noted that during the appellant's period of observation and evaluation, he presented no management problem, revealed no significant degree of anxiety, and showed no sign of depression or bizarre behavior. He was noted to interact adequately with peers and staff. Clinical findings indicated that "it appeared from his history that the anxiety has stemmed from recurrent headaches," and that it was "difficult to gauge the severity of the patients anxiety over time but it does seem that his ability to work productively was impaired by this problem." No headache complaints were reported during the appellants stay, and further neurological evaluation was recommended prior to associating the headaches with head trauma in service. No follow-up psychiatric treatment or psychotropic medication was recommended. At the conclusion of the appellant's period of VA observation and evaluation in March 1993, he was diagnosed under the multiaxial evaluation scheme as follows: Anxiety reaction disorder, not otherwise specified (Axis I); hypertension, degenerative joint disease, atypical chest pain, chronic recurrent headaches, a history of head trauma, and rule out testicular mass (Axis III), stressors - two (Axis IV); level of functioning -current 70, past year 70 (Axis V). In May 1993, a VA neurological examination was conducted. The appellant rendered the same history as previously reported. He indicated that his headache was constant, waxes and wanes, and was incapacitating 4-5 times per week. The headache occurs mainly on the left supraorbital areas and radiates around the forehead into the base of the skull. The appellant indicated that he has had a diminution in his vision in the left eye since the injury, and reported a history of photophobia. He stated that he takes Ibuprofen for headache pain which provides limited relief. Clinical findings indicated that the cranial nerves were intact, and that the visual fields were full to confrontation although some clouding of left eye vision was reported. Deep tendon reflexes were brisk and symmetrical throughout, except for somewhat diminished ankle jerks. No sensory deficit was noted. A well-healed scar above the left eye, somewhat tender about the left orbit, was found. The appellant was diagnosed with post- traumatic cephalgia. By rating action dated August 1993, VARO continued the 10 percent disability evaluation for the appellant's anxiety reaction disorder, and assigned a separate 10 percent disability evaluation for the appellant's headache disorder. In his May 1994 substantive appeal to the Board, the appellant indicated that his anxiety reaction disorder was productive of severe depression and a reduced "desire to travel around and have contact with people." He indicated that he has little contact with people and does not like to leave his home. II. Analysis A. Increased Evaluation for an Anxiety Reaction Disorder The appellant is seeking a rating in excess of the currently assigned 10 percent evaluation for his service-connected anxiety reaction disorder. 38 U.S.C.A. § 1155 (West 1991). In evaluating the appellant's request for an increased rating, the Board considers the medical evidence of record. The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1993). In so doing, it is our responsibility to weigh the evidence before us. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). 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 required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1993). All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1993). The Board has carefully reviewed the pertinent medical evidence, including the appellant's entire medical history. 38 C.F.R. § 4.1 (1993); Peyton v. Derwinski, 1 Vet.App. 282 (1991). The schedular criteria provide that a psychoneurosis resulting in definite impairment of social and industrial adaptability warrants a 30 percent disability rating; a 10 percent disability rating is warranted where there is less than definite social and industrial impairment, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1993). In Hood v. Brown, 4 Vet.App. 301 (1993), the United States Court of Veterans Appeals stated that the term "definite," the rating description for a 30 percent disability evaluation under 38 C.F.R. § 4.132 (1993) was "qualitative" in character, whereas the other terms were "quantitative" in character, and invited the Board to construe the term "definite" in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate "reasons or bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a precedent opinion, dated November 9, 1993, the General Counsel of the VA concluded that "definite" is to be construed as "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." VA O.G.C. Prec. 9-93 (Nov. 9, 1993). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c) (West 1991). With these considerations in mind, the Board will address the merits of the increased rating claim at issue. The medical evidence of record reflects that, while the appellant complains of anxiety and tension, the overall level of impairment does not appear to be moderately large in degree. The appellant reported during his period of VA observation and evaluation in March 1993 that he has a stable marriage of 35 years duration, experiences good relationships with his children, and noted attending church regularly. The appellant denied major depression, hostility, suicidal or homicidal ideation, and the appellant was observed during his period of hospitalization to display neither anxiety or depression; on the contrary, he was noted to have interacted well with both his peers and hospital staff. Additionally, although it was indicated on VA examination in March 1993 that the severity of the appellant's anxiety reaction was "difficult to gauge," the Board notes that the severity of the appellant's condition was adequately evaluated under the multiaxial system. On Axis IV, psychosocial stressors were evaluated as mildly severe; and on Axis V, the Global Assessment of Functioning scale, the appellant's psychological, social, and occupational functioning were evaluated as mildly impaired. In view of the above, the Board finds no objective evidence of reduced initiative, flexibility, efficiency, and reliability productive of social and industrial inadaptability that is "more than moderate but less than rather large." VA O.G.C. Prec. 9-93 (Nov. 9, 1993). The Board acknowledges the appellant's belief that his psychiatric condition is more than mildly disabling. Cartright v. Derwinski, 2 Vet.App. 24 (991). However, only mild impairment is shown by the objective medical evidence of record, including VA examinations in September 1980 and March 1993. As such, the Board finds that the objective medical evidence of record is consistent with the schedular criteria for mild social and industrial impairment. Upon consideration of the appellant's description of his symptoms coupled with the objective medical evidence of record, the Board concludes that the record supports the 10 percent disability evaluation for anxiety reaction disorder currently assigned. The disability picture does not more nearly approximate the criteria for a 30 percent schedular evaluation. The current degree of the appellant's impairment found by the Board, on consideration of the entire record and history of symptomatology to be less than moderate, is insufficient to warrant a rating consistent for "definite" social and industrial impairment as contemplated by the Rating Schedule and the precedent opinion of the General Counsel, cited above. Application of the extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321 (b) (1993). There is no evidence that the anxiety reaction disorder presents such an exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. B. Increased Evaluation for Residuals of Head Trauma Initially, the Board notes no objective evidence of actual organic or epileptiform manifestations positively associated with the appellant's head injury disability which would warrant direct application of the schedular criteria set forth under diagnostic code 9300 et seq. A longitudinal review of the record indicates that his disability appears manifested by subjective complaints of headaches, with essentially negative physical and neurological findings on recent VA examination conducted in May 1993, as well as on VA examinations in conducted in January 1954 and September 1980. In addition multiple psychiatric evaluations conducted in the post service years are consistently negative for any psychiatric basis for his head trauma residuals (headaches). Neurologic manifestations of symptomatology associated with an organic mental disorder, to include as in this case, headaches, are rated separately as distinct disabilities under the appropriate schedular criteria. 38 C.F.R. Part 4, Diagnostic Code 9300 et seq., note (2) (1993). As such, and if warranted by the objective medical evidence, the appellant's disability would warrant a more appropriate rating under diagnostic code 8100, since the appellant's complaints of headaches are essentially neurologic manifestations of the head injury sustained in service. 38 C.F.R. § 4.20 (1993). However, the Board concludes that the appellant's disability is more appropriately rated under diagnostic code 8045 for purely subjective complaints of headaches recognized as symptomatic of brain trauma. See 38 C.F.R. Part 4, Diagnostic Code 8045 (1993). Code 8045 prescribes that purely subjective complaints of brain trauma are rated 10 percent and no more under diagnostic code 9304. The objective medical evidence of record reflects that the appellant has been treated for his complaints of headaches that have been recognized as residual symptoms of the in-service shrapnel injury to the head. However, notwithstanding his complaints, clinical findings of record are essentially negative for objective pathology connected to his headache complaints. According to the schedular criteria, the appellant's subjective headache complaints, recognized in this case as residuals of a head injury, would warrant no greater than a 10 percent disability evaluation under diagnostic code 8045; there is simply no evidence of objective clinical findings of record showing any significant abnormal pathology connected to his old head injury. Based on the above findings, the Board concludes that the disability picture presented more nearly approximates a 10 percent evaluation under diagnostic code 8045-9403. 38 C.F.R. §§ 4.3, 4.7, 4.20 (1993). Application of the extraschedular provisions is not warranted. 38 C.F.R. § 3.321 (b) (1993). There is no evidence that the service-connected residuals of head trauma presents such an exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. ORDER A disability evaluation in excess of 10 percent for an anxiety reaction disorder is denied. A disability evaluation in excess of 10 percent for residuals of head trauma is denied. KENNETH R. ANDREWS, JR. 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.