BVA9501359 DOCKET NO. 93-04 499 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to restoration of a 30 percent disability evaluation for major depression, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs ATTORNEY FOR THE BOARD William J. Jefferson, III Counsel INTRODUCTION The veteran had active service from June 1982 to September 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) St. Paul, Minnesota, Regional Office (RO). In November 1991 it was proposed that the veteran's 30 percent disability evaluation be reduced. The veteran was notified of the November 1991 proposed reduction in December 1991. In a March 1992 rating decision, the RO reduced the veteran's 30 percent disability evaluation for major depression (formerly depressive neurosis) effective from September 1985, to a 10 percent disability evaluation, effective June 1, 1992. CONTENTIONS OF APPELLANT ON APPEAL The veteran, in essence, maintains that his service connected psychiatric disorder, most recently diagnosed as major depression, should not have been reduced to a 10 percent evaluation. It is argued that the provisions of 38 C.F.R. § 3.344, which require that material improvement of the disability be shown prior to reduction, were not applied. 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(s). 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 evidence supports restoration of the 30 percent disability evaluation for major depression. FINDINGS OF FACT 1. A Board decision dated in May 1989 granted service connection for depressive neurosis, and by rating decision dated in May 1989, the depressive neurosis was assigned a 30 percent disability evaluation by the RO effective September 11, 1985. 2. A rating decision dated in November 1991 proposed to reduce the veteran's 30 percent disability evaluation for depressive neurosis, and in a March 1992 rating decision, the veteran's 30 percent disability evaluation for major depression was reduced to a 10 percent evaluation, effective June 1, 1992. 3. Sustained improvement in the service-connected major depression has not been demonstrated; the disorder is still shown to be productive of definite social and industrial impairment. CONCLUSION OF LAW Restoration of the 30 percent disability evaluation for major depression is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.344, Part 4 Code 9405 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION We find that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is we find that he has presented a claim which is not implausible. We are also satisfied that all relevant facts have been properly developed. 38 U.S.C.A. § 5107(a). The 30 percent rating assigned by the RO in May 1989 was predicated largely on clinical findings on a VA psychiatric examination in April 1988. At the time of that examination it was indicated that the veteran had been in a Veteran's Home for some time. Since his discharge from a naval hospital, referring to the time he was in service, he had worked for one month as a dishwasher, but he had quit because he did not like the hours or working weekends. The veteran had a history of substance abuse. It was indicated that after his discharge from service, he began to "drink" and that is how he came to live in the Veteran's Home. The veteran had been prescribed Thorazine, but he had discontinued the medication. It was reported that the veteran worked 25 hours per week as a janitor at the veterans home. He had a problem at the home because people constantly made faces at him or talked about him. He reported that when he informed his social worker about the incidents, the other people would lie and he would look bad. The examiner indicated that the veteran did not share his room with anyone. Outside of his janitorial work he mostly watched television. It was indicated that the veteran occasionally visited his parents, but he did not seem to have any close relationships. He did not date and he had never been married. The veteran did not have any particular physical activities, interests, or hobbies. It was reported that the veteran indicated that he was feeling good, but he admitted that he cried a good deal and that he felt depressed. The mental status examination revealed that the veteran was slightly unkempt, pleasant, oriented, alert, and cooperative. His affect was flattened and depressed. His associations were sparse but coherent and relevant. His intellectual functioning was variable. The veteran's judgment was considered episodically poor. There were no hallucinations or delusions, but his thinking of others was certainly paranoid. He denied suicidal preoccupations. The diagnoses were: History of major depressive episode, schizo-affective type with definite paranoid trends; and history of drug abuse involving alcohol and marijuana. The veteran was considered competent to handle his monies and affairs. A neurological examination in May 1988 reported normal findings with a previous diagnosis of agenesis corpus callosum. A May 1988 VA psychological report furnished an impression that the veteran was moderately distressed and possibly suffering from depression. Depression, anxiety, worry, lack of self esteem, possible suicidal ideation and obsessional characteristics as well as ruminative thinking were also indicated. With review of the claims folder, in July 1988, a VA psychiatrist amended the April 1988 psychiatric examination diagnosis to: Mild depressive reaction, currently with history of major depressive episode; history of drug abuse said to be in remission currently; mixed personality disorder. A VA outpatient clinical record dated in February 1989, indicated that the veteran continued to live in the Veterans Home and that he was unemployed. He sought information concerning schooling. At an August 1990 VA psychiatric examination, it was indicated that the veteran was living with a girlfriend. He had discontinued drinking for 10 ten months. His girlfriend had suffered a stroke, and he had spent his time at a hospital helping with her rehabilitation. She had somewhat recovered, and she was coming home where he could care for her. It was reported that the veteran indicated that he had had nightmares, and that he was fearful that something like what had happened to his girlfriend would happen to him. As he saw her recover, he felt better about himself and her. The veteran had been employed as an injection molder at a plastic company from February 1990 to May 1990, but he had been laid off due to excess inventory. He had not sought employment due to his girlfriends' condition, but as soon as his services were no longer required he expected to look for another job. He had been satisfied with his job and got along with it all right. The veteran rode his bike for exercise but had no other activities. The veteran reported that his depression was not severe, and he did not have suicidal impulses. The mental status examination revealed that the veteran was reasonably neat in appearance, pleasant, oriented, alert, and cooperative. His affect was slightly flat, but not inappropriate. His speech was normal in mechanics and content, and associations were coherent and relevant. The veteran was sleeping well and his nightmares were becoming less frequent as his girlfriend improved. The veteran did not feel depressed at the time of the examination, but it was noted that there had been depression in the past. The diagnoses were: Possible history of major depression; possible borderline cognitive function, chronic. A VA psychiatric examination was performed in October 1991. It was indicated that the veteran had been recommended for vocational rehabilitation, but had not obtained it. He had continued to live with his girlfriend who was wheelchair confined, and they planned to maintain their relationship. It was reported that the veteran did the housework and most of the cooking. He had been looking for a job but there was little to be had in the area where they lived. The veteran assisted his girlfriend with ambulation. It was reported that the veteran indicated that his condition remained the same. He continued to have some difficulty in sleeping, and he had occasional nightmares concerning his military service. He continued to abstain from alcohol and drugs. There was no history of hallucinations or delusions. The veteran admitted to depression and tearfulness at times. He denied suicidal preoccupations The diagnosis was: Remains that of major depression and the veteran seems essentially unchanged from the last evaluation. A VA outpatient treatment record dated in January 1992, reported that the veteran carried a diagnosis of agenesis of corpus callosum with some limitation of intellectual function. It was indicated that he was living with his partially paralyzed fiance. The mental status examination revealed that the veteran was in a good mood. He had dysthymia for a few days but his condition had improved. He slept five hours per night due to concern about less money. His appetite was good and his energy was O.K. With regard to concentration, he was easily distracted. The veteran was oriented times three. There were no homicidal or suicidal ideations. He related well and his affect was euthymic. He had no hallucinations or delusions. It was indicated that the veteran had anger, but he generally walked away. The veteran bowled one night per week, but he had no other social support. Both parents visited. The diagnosis was agenis of corpus callosum; major depressive disorder by history; euthymic today no indication for intervention. Subsequent VA outpatient treatment records indicate that in April 1992 the veteran exhibited a moderate degree of anger and anxiety. There was a further VA psychiatric examination in November 1992. It was noted at that time that the veteran had returned to the injection molding job with a plastic factory in September 1992. He had broken up with his girlfriend who was in a nursing home and was coming back to the apartment. Clinical findings included a slightly flattened affect. He admitted to depression with tearfulness at times. The diagnosis was major depression, in partial remission. Analysis The Board has reviewed the evidentiary data of record and concludes that the veteran's 30 percent disability evaluation for major depression must be restored. The rating has been in effect in excess of 5 years and should not be reduced in the absence of sustained improvement. 38 C.F.R. § 3.344 (1993). A 30 percent disability evaluation for major depression under Diagnostic Code 9405, requires that there be definite impairment in the ability to establish or maintain effective and wholesome relationships with people; the psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. In the case of Hood v. Brown, 4 Vet.App. 301 (1993), the United States Court of Veterans Appeals stated that the term "definite" in 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 and 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." O.G.C. Prec. 9-93, 59 Fed. Reg. 4753 (1994). The VA, including the Board, is bound by this interpretation of the term "definite." U.S.C.A. § 7104(c) (West 1991). In this case we observe that in 1988, the veteran was residing at a State Veterans' home and was working at the facility part-time as a janitor. His social integration was limited, he did not have any close relationships, and his only interest was watching television. His judgment was considered poor and depression was reported. By August 1990, he had established a relationship with a woman with whom he lived. The veteran had been employed in a factory, but he had been laid off after several months and he had remained unemployed. His main interest was helping his girlfriend who had suffered a stroke, and as a result he had not sought work. The veteran's psychiatric symptoms primarily consisted of nightmares associated with his girlfriends condition. In October 1991, the veteran was continuing to live with his girlfriend who was rehabilitating. Although he had been looking for work, there was none to be had and he had remained unemployed. At that time the veteran admitted depression with tearfulness at times. At the time of the November 1992 examination, it appeared that he had regained his job at the plastic factory, which he had for less than two months. His relationship with his girlfriend was in the process of ending. Psychiatric symptoms on the examination were unchanged from those reported earlier. Based on the aforementioned findings, the Board concludes that sustained improvement in the psychiatric disorder has not been demonstrated. Since 1988 some minimal improvement in the veteran's social integration was demonstrated in that he had maintained a relationship with a woman. However, there were no other significant improvements socially. The veteran had been employed briefly, then was laid off, then remained unemployed, and currently had the same job at the plastic factory. When the 30 percent rating was initially assigned his status was either unemployed or working as a part time janitor in the veteran's home he was living in. In any event, concerning whether there has been sustained improvement in the psychiatric disorder, the evidence appears to be in relative equipoise at best. In such case, where there is a balance of the positive and negative evidence, the claimant must prevail. 38 U.S.C.A. 5107(b) (West 1991). Therefore, the veteran's 30 percent disability evaluation for major depression must be restored from June 1, 1992, the effective date of its reduction. (CONTINUED ON NEXT PAGE) ORDER Restoration of the 30 percent disability evaluation for major depression from June 1, 1992 is granted subject to laws and regulations governing the payment of monetary awards. BRUCE E. HYMAN 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.