BVA9504427 DOCKET NO. 92-05 165 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES Entitlement to an increased rating for an anxiety disorder, currently evaluated at 70 percent. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. W. Fabian, Associate Counsel INTRODUCTION The veteran had active service from October 1955 to September 1958. The veteran's current appeal was previously before the Board of Veteran's Appeals (Board) in June 1993. At that time the case file was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) in order to obtain a social and industrial survey and a current psychiatric examination. That development has been completed and the file returned to the Board for a determination. The case previously included the issue of entitlement to a total rating pursuant to the provisions of 38 C.F.R. § 4.16(c). Our decision below renders that issue moot. Accordingly, it will not be addressed herein. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is unemployable because he cannot tolerate being around people and because he is depressed. His representative contends that the veteran's service-connected disability is of such severity that he is incapable of engaging in substantial gainful employment. 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 evidence supports the grant of a 100 percent evaluation for an anxiety disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's anxiety disorder is currently manifested by episodes of anxiety, major depression, decreased ability to sleep, irritability, decreased interest in activities of daily living, impaired memory and concentration, argumentative behavior, fits of crying, uncontrolled violent outbursts, and total isolation from the community, more nearly approximating the criteria for a 100 percent disability evaluation. CONCLUSION OF LAW A 100 percent disability evaluation for an anxiety disorder is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.129, 4.130, 4.132, Diagnostic Code 9400 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon review of the record, the Board concludes that the veteran's claim is well grounded within the meaning of the statutes and judicial construction. See 38 U.S.C.A. § 5107(a) (West 1991). The VA, therefore, has a duty to assist the veteran in the development of facts pertinent to his claim. Id. The relevant evidence pertaining to the issues on appeal consists of VA treatment records, a VA Social and Industrial Survey completed in August 1993, a VA psychiatric examination conducted in September 1993, the decision of an Administrative Law Judge (ALJ) of the Social Security Administration (SSA), and a letter from VA treating personnel, dated in September 1994. The Board concludes that all relevant data has been obtained for determining the merits of the veteran's claim. The VA has, therefore, fulfilled its obligation to assist the veteran in the development of the facts of his case as required by 38 U.S.C.A. § 5107(a). I. Pertinent Law and Regulations Schedular disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1993). The average impairment as set forth in the VA's Schedule for Rating Disabilities, codified in 38 C.F.R. Part 4, includes diagnostic codes which represent particular disabilities. Generally, the degrees of disabilities specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. Id. Where there is a question of which of two evaluations will be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Social and industrial inadaptability is the basic criterion for evaluating mental disorders and it contemplates those abnormalities of conduct, judgment, and emotional reactions which affect the individual's earning capacity. Social integration is one of the best indices of mental health and reflects the ability to establish healthy and effective interpersonal relationships. In evaluating disabilities based on mental disorders, social inadaptability is to be evaluated only as it affects industrial adaptability. 38 C.F.R. § 4.129. The severity of disability is based upon actual symptomatology as it affects social and industrial adaptability. 38 C.F.R. § 4.130. Two of the most important determinants of disability are time lost from gainful work and decrease in work efficiency. Id. The disability evaluation is to be based on the report and analysis of the veteran's symptomatology and the full consideration of the whole history of the disorder. Id. Diagnostic Code 9400 provides a 100 percent evaluation if analysis of the veteran's symptomatology shows that the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; there are total 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 there is demonstrated inability to obtain or retain employment. A 70 percent evaluation applies if the ability to establish and maintain effective or favorable relationships with people is severely impaired, and the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9400. In determining whether an increased evaluation is proper, the Secretary is responsible for determining whether the evidence supports or is against the claim. If the preponderance of the evidence is against the claim, it is denied; if the evidence is in support of the claim or in equal balance, the claim is allowed. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). II. Summary of Evidence and Analysis The veteran contends that he is unemployable because he cannot tolerate being around people and due to depression. The veteran's representative contends that the veteran's service- connected disability is of such severity that he is incapable of engaging in substantially gainful employment. The evidence in file shows that the veteran was granted service connection for anxiety at a noncompensable rate in a rating determination issued in April 1959. That evaluation was based on the report of an examination that showed the veteran to be very irritable, tense, and restless. The evaluation was increased to 10 percent in a rating determination issued in December 1960 because the veteran demonstrated social inadaptability, withdrawal, depression, and violent outbursts. In a rating determination issued in November 1980, the evaluation was increased to 50 percent based on a VA examination conducted in October 1980. The report of that examination revealed that the veteran appeared very anxious and had difficulty sitting throughout the interview. He had difficulty sleeping and concentrating, with impaired memory for recent events. He was easily frustrated and socialization was limited. The veteran's disability evaluation was increased to 70 percent in a decision by the Board in June 1991. That decision was based on VA outpatient treatment notes from January to December 1990 and a VA examination conducted in July 1990. The VA examination revealed symptoms of depression, with feelings of helplessness and hopelessness. The veteran reported that he had vague suicidal thoughts and that he did not socialize. His sleep and appetite were impaired, as were his memory and ability to concentrate. He had no overt signs of psychosis, hallucinations, or delusions. His disorder was diagnosed as moderate anxiety with symptoms of depression. The outpatient treatment notes showed that the veteran was treated for complaints of anxiety and depression. His anxiety disorder was noted to be a severe social and industrial impairment due to his inability to tolerate being around people and the inability to complete tasks because he easily became frustrated and irritable. His depression was noted to be severe. On his current claim for an increased rating the veteran stated that he last worked in 1978 and that he stopped working because of his anxiety disorder. The veteran also stated that his treating psychiatrist told him that he could not work because of his nerves. VA outpatient treatment notes from March 1991 through August 1991 show that the veteran had major depression with chronic anxiety disorder. He stayed home most of the time and had feelings of worthlessness because he could not financially provide for his family. He was irritable with others and had dreams of being punished. He sometimes had difficulty sleeping and at other times slept a great deal. He had migraine headaches. He was unable to control his temper and did not feel comfortable in social situations. In April 1991, his therapist categorized his social impairment as moderate to severe and his work impairment as extreme. In August 1991 his social and work impairment were categorized as severe. The October and November 1991 treatment notes show that the veteran had difficulty sleeping, decrease in appetite, poor memory, and decreased interest in the activities of daily living. He was isolated at home and became irritable with other people, becoming angry with what he described as "people's stupidity." The treating therapist stated that the veteran was unable to be gainfully employed as evidenced by his degree of isolation, decreased ability to concentrate and memory, irritability, depression, and decreased motivation and energy. The report of the Social and Industrial Survey prepared in August 1993 shows that the veteran has resided in his current home for 18 years with his wife and four children. The veteran stated that his last job was working for Lyons Trucking in 1978. The veteran stated that he spent most of his time in the kitchen of his home drinking coffee and smoking cigarettes. He considered this area his "safe area" because he did not have to deal with people. He denied socializing or even speaking to his neighbors. He tried to take a three-mile walk everyday on the advice of his physician in order to reduce stress. The veteran stated that little things set him off. For example, if he was in the grocery store and an aisle was blocked by customers, he would slam his cart into them as well as offer a few choice words. If he had to go to the store, he made a point of going when it first opened so that he could avoid people. He stated that he frequently went into a tirade and could not control himself. The veteran's 18- year old son reported that his father was frequently hard to get along with and got upset very easily. The veteran was aware of the negative impact that his disorder had on his family, but he could not help himself. It was evident to the investigator that this troubled the veteran a great deal. The veteran's wife reported that she did not want her husband to come to her place of business because of his potential for violence. She also stated that the veteran had no friends and that he interacted only with family members. The veteran underwent a VA psychiatric examination in September 1993. The report of that examination shows that the veteran was being medicated with Zoloft, Thorazine, and Valium. The veteran's affect was labile. Sometimes he yelled and screamed and at other times he cried a lot. His sleep was impaired, in that he could not sleep for more than three hours at a time. His appetite was erratic and his concentration was poor. He did not want to socialize with people. Most of the time he sat in his kitchen and smoked cigarettes. Memory for recent and remote events was adequate. Thought processes were organized and there were no overt signs of psychosis. He was oriented to time, place, and self. Reasoning, insight, and judgment were adequate. The examiner did not provide an assessment of the veteran's social and industrial functioning. The veteran has been approved for Social Security disability benefits. A copy of the decision made by the ALJ is in file, as well as a report of the veteran's history of earnings. The decision indicates that the veteran appeared in a hearing before the ALJ in November 1993. During the hearing the veteran appeared to be irritable and combative. The veteran testified that he was constantly restless and prone to obsessive behavior, such as continually checking his home to make sure it was secure. He was constantly anxious and agitated. He felt guilty and worthless and entertained thoughts of physically harming people who he felt had "done him wrong." He was arrested for assault in 1974. He had a history of hallucinations and was fearful of other people. He preferred staying away from other people and had not had a social life for 20 years. He denied doing any type of work around the house. The veteran testified that his medications included Thorazine, Valium, and an anti-depressant. He was not involved with any activities with his children. He attempted to return to work in 1988 but his employment ceased after he got into a fight with a coworker. Testimony was also provided by a medical expert who is a Board- certified psychiatrist. The expert testified that the veteran suffered from major depression, a major affective disorder, and an anxiety related disorder, and that he consistently displayed symptoms of depression and anxiety throughout his treatment history. The expert confirmed that the veteran's disorders were of sufficient severity to meet the regulatory Listing of Impairments that pertain to Social Security disability claims. The ALJ decision references a report from Dr. M. Mirza, the veteran's VA staff psychiatrist, dated in June 1992, that states that the veteran had persistently displayed certain symptoms throughout his treatment history, including anxiety, insomnia, short term memory deficits, impaired concentration, and irritability. Although the decision shows that the veteran had numerous physical impairments that affected his ability to work, the ALJ based the determination that the veteran was unable to engage in substantial gainful activity on his mental impairment alone. The ALJ found that the veteran had been unable to engage in substantial gainful activity since January 1, 1980. A review of the veteran's earnings history shows that he stopped working in 1978. He returned to work in 1980, when he earned less than $1000. He did not work again until 1988, at which time he earned less that $6000. He has had no earnings recorded subsequent to 1988. The veteran's representative submitted a statement dated in September 1994 from Joseph W. Strychasz, C.S.W., and M. Mirza, M.D., the veteran's therapist and treating psychiatrist at the Buffalo VA medical center. The statement shows that the veteran is being treated for generalized anxiety disorder and major depression. The veteran experiences episodes of anxiety and depression with decreased sleep, irritability, decreased interest in the activities of daily living and impaired memory and concentration. Socially, the veteran isolates himself from others, stays home, and has no friends. He engages in argumentative behavior as the result of his psychiatric condition. His impaired memory and concentration affect his ability to complete tasks. The therapists stated that the veteran's symptoms affect his ability to work at a sustained pace and to complete tasks in a timely manner and that his irritability and argumentative behavior impede his ability to work with others. A review of the evidence shows that the veteran's symptoms more nearly approximate the criteria for a 100 percent disability evaluation. The veteran is totally isolated from the community because of his irritability and argumentative behavior, interacting only with family members. His symptoms are totally incapacitating in an employment situation in that he cannot complete tasks due to poor memory and inability to concentrate. He has violent outbursts that he is unable to control and fits of crying that represent profound retreat from mature behavior. He has been no more than marginally employed since 1978 and has been totally unemployed since 1988. He experiences guilt and remorse due to his inability to provide financial support for his family. He has demonstrated that because of his service connected psychiatric disorder, he is unable to obtain or retain employment. Accordingly, a 100 percent schedular rating is warranted. ORDER A 100 percent evaluation for an anxiety disorder is granted, subject to the regulations governing the payment of monetary benefits. GEORGE R. SENYK 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.