Citation Nr: 0001494 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 96-43 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for a psychiatric disorder, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Richard Giannecchini, Associate Counsel INTRODUCTION The veteran had active military service from August 1940 to September 1943. A perfected appeal to the Board of Veterans' Appeals (Board) of a particular decision entered by a Department of Veterans Affairs (VA) regional office (RO) consists of a Notice of Disagreement (NOD) in writing received within one year of the decision being appealed and, after a Statement of the Case (SOC) has been furnished, a substantive appeal (VA Form 9) received within 60 days of the issuance of the Statement of the Case or within the remainder of the one-year period following notification of the decision being appealed. The present appeal arises from an August 1996 rating action in which the RO denied the veteran an increased rating for his service-connected psychiatric disorder. The disorder had been evaluated as 10 percent disabling, effective from August 1978. The veteran filed an NOD that same month, August 1996, and the RO issued an SOC in September 1996. A substantive appeal was also filed in September 1996. Supplemental statements of the case (SSOC's) were issued in December 1996 and August 1998. In a March 1999 Board decision, the veteran's appeal was remanded to the RO for additional development. Another SSOC was issued in June 1999. The Board notes in addition that, in VA Form 9's (Appeal to the Board of Veterans' Appeals), dated in September 1996 and July 1999, the veteran had requested hearings before a Member of the Board.. Those requests were subsequently withdrawn. The most recent scheduling was for a hearing before the Board in Washington, DC, in January 2000; however, after being notified of the date of the hearing in a letter of November 1999, the veteran replied later that month that he would be unable to attend the hearing. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. On VA examination in July 1998, the examiner reported that the veteran's insomnia was fairly well controlled with medication, that he had a moderate amount of anxiety, that he maintained meaningful relationships and had good reality testing, and that he was mild to moderately disabled from his anxiety and depression. 3. A Dorn Veterans' Hospital treatment record, dated in November 1998, noted that the veteran worked as a janitor for 35 hours a week, did not take any medication except for a heart condition, and did not suffer from panic attacks or suicidal/homicidal ideation. 4. Applying the rating criteria in effect prior to November 7, 1996, the veteran has not shown definite impairment in the ability to establish or maintain effective and wholesome relationships with people; or that psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. 5. Applying the rating criteria in effect on and after November 7, 1996, the veteran has not shown occupational and social impairment with 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, recent events). CONCLUSION OF LAW The schedular criteria for a disability rating greater than 10 percent for a psychiatric disorder are not currently met under the criteria in effect before, or on and after, November 7, 1996. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, 4.132, Diagnostic Code 9400 (1996 and 2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Basis A review of the claims file reflects that the veteran was service connected for a psychiatric disorder in February 1944. The disorder was evaluated as 30 percent disabling, effective from September 1943. Thereafter, in a December 1978 rating decision, the RO determined the veteran's disorder to be 10 percent disabling, effective from August 1978. In February 1996, the veteran requested that his psychiatric disorder be re-evaluated for an increased rating. In August 1996, the RO received Dorn Veterans' Hospital treatment records, dated in June and July 1996. These records noted the veteran's treatment for his eyes as well as for a bowel disorder. In a rating decision that same month, August 1996, the RO denied the veteran's increased rating claim. In December 1996, the RO received treatment records from the VA outpatient clinic (VAOPC) in Greenville, dated from April 1996 to November 1996. In particular, a treatment record, dated in April 1996, noted the veteran as having occasional suicidal ideation, although he reported having no plan to carry it out. He was also reported to be taking Zoloft. A May 1996 treatment note reflected the veteran as suffering from "psychasthenia" with anxiety and phobias, along with mental exhaustion and weakness. A June 1996 treatment record noted the veteran's treatment for generalized anxiety disorder and dysthymia. He was again reported to be taking Zoloft. In July 1997, the veteran submitted to the RO a VA Form 21- 4138 (Statement in Support of Claim), in which he asserted that his anxiety condition was very severe and resulted in sleep disturbance, extreme nervousness, temper outbursts, and anxiety attacks. Thereafter, in July 1998, the veteran was medically examined for VA purposes. He reported having been treated for numerous physical problems, including surgery for an aneurysm with a subsequent infection, heart surgery, and a colostomy. The veteran reported being quite worried and somewhat discouraged, and indicated that he took two Trazodone at night and 100 mg of Zoloft. In addition, the veteran stated that his day was restricted to being around the house because of his physical condition. He indicated that he read the paper and did crossword puzzles, and if it wasn't too hot he might go out for a walk or visit the clubhouse at the local golf course. He reported not being suicidal, and that he did have friends. On clinical evaluation, the veteran was noted to be well-groomed, pleasant and cooperative, and he showed a good range of affect. He appeared slightly worried and slightly depressed, especially when talking about his health, but was oriented to time, person, and place. The veteran denied hallucinations, and there was no evidence of delusions. The examiner's impression was Axis I: Dysthymia and generalized anxiety disorder; Axis II: No diagnosis; Axis III: Aneurysm, open heart surgery; Axis IV: Health concerns; Axis V: Current global assessment of functioning (GAF) is 65. The examiner also noted that the veteran suffered from moderate to mild symptoms of depression, that his insomnia was fairly well controlled with medication, and that he had a moderate amount of anxiety. Furthermore, the examiner reported that the veteran did have good reality testing and maintained meaningful relationships, including those with his friends and children. The examiner noted the veteran to be mild to moderately disabled from his anxiety and depression. Thereafter, the RO received Dorn Veterans' Hospital treatment records, dated from June 1998 to August 1998. These records noted the veteran's treatment for a colocutaneous fistula, hypertension, and congestive heart failure. In April 1999, the RO received Dorn Veterans' Hospital treatment records, dated from June 1998 to April 1999. In particular, a treatment record, dated in July 1998, noted the veteran as very anxious about his upcoming colon surgery. He was reported to sleep only after taking medication. There was no finding of suicidal or homicidal ideation. The veteran was noted to have a tired affect, and his GAF score was 44. A treatment record, dated in November 1998, noted the veteran worked as a janitor for 35 hours a week, did not take any medication except for his heart condition, and did not report suffering from panic attacks or suicidal/homicidal ideation. Furthermore, the veteran was noted as being calm and not depressed. The diagnosis was generalized anxiety disorder. In May 1999, the veteran submitted a Statement in Support of Claim, in which reported that he had been prescribed Lorazepam to help him sleep. Also in May 1999, the RO received treatment records from Terry Johnson, M.D., dated from January 1997 to April 1999. These records reflected the veteran having undergone coronary bypass surgery and treatment for an abdominal aortic aneurysm. In particular, a consultation report from Barry Huey, M.D., dated in March 1999, noted the veteran to be working as a janitor at a grocery store, and to play golf occasionally. In the November 1999 letter to the Board, in which he withdrew his request for a hearing, the veteran related that his health had been "a nightmare for the past three years," and that he was taking 10 pills a day to keep going. He also stated that he continued to empty trash and clean the floors at a Winn Dixie store, four hours each day. He complained that South Carolina had taken a pension away from him, and that he did not know whether he could appeal that action. II. Analysis The veteran has submitted a well-grounded claim for an increased rating within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). That is, the Board finds that he has submitted a claim which is plausible. This finding is based on the veteran's assertion that his service- connected psychiatric disorder is more severe then previously evaluated. See Jackson v. West, 12 Vet.App. 422, 428 (1999), citing Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Board is also satisfied that all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained, and that no further assistance is required to comply with the duty to assist, as mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based upon average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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. 38 C.F.R. §§ 3.102, 4.3, 4.7 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994); 38 C.F.R. §§ 4.1, 4.2 (1999). During the course of this appeal, substantive changes were made by regulatory amendment to the schedular criteria for evaluating mental disorders, as set forth in 38 C.F.R. §§ 4.125-4.132. See 61 Fed. Reg. 52,695-52,702 (1996). These changes became effective on November 7, 1996. See 38 C.F.R. § 4.130 (2000). The RO applied the revised criteria in its evaluation of the veteran's service-connected psychiatric disorder, and the veteran was notified of its decision in a December 1996 SSOC, which denied him an increased evaluation greater than 10 percent. Where the law or regulations change while a case is pending, the version most favorable to the claimant applies, unless Congress provided otherwise or has permitted the Secretary of Veterans Affairs to do otherwise and the Secretary has done so. Karnas v. Derwinski, 1 Vet.App. 308, 312-313 (1991). See also Baker v. West, 11 Vet.App. 163, 168 (1998); Dudnick v. Brown, 10 Vet.App. 79 (1997) (per curiam order). In reviewing this case, the Board must therefore evaluate the veteran's psychiatric disorder under both the old and current regulations to determine whether he is entitled to an increased evaluation under either set of criteria. Qualifying this rule is the Court's holding that the Board may not apply the revised schedular criteria to a claim prior to the effective date of the amended regulations. Rhodan v. West, 12 Vet.App. 55, 57 (1998). Accordingly, it will be necessary to apply the rating criteria in effect prior to October 1996 to that evidence dated before that time. With respect to the evidence dated since October 1996, that will be considered under both the "old" and "new" criteria, and, to the extent one or the other results in a more favorable determination, that will be the set of criteria applied. Prior to the regulatory changes, the veteran's psychiatric disorder had assigned to it a 10 percent rating under 38 C.F.R. § 4.132, Diagnostic Code 9400, "Generalized anxiety disorder," as in effect before November 7, 1996. Based upon that regulatory scheme, the severity of a psychiatric disability was based upon evaluating how the actual symptomatology affected social and industrial adaptability. 38 C.F.R. § 4.130. Evidence of social inadaptability was evaluated only as it affected industrial adaptability. 38 C.F.R. § 4.129. Two of the most important determinants of disability were time lost from gainful work, and decrease in work efficiency. The condition of an emotionally sick veteran with a good work record was not to be undervalued, however, nor his condition overvalued based on a poor work record not supported by the psychiatric disability picture. In evaluating disability from psychotic disorders, it was necessary to consider the frequency, severity, and duration of previous psychotic periods, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.130. Under DC 9400, pre-November 7, 1996, a 100 percent rating was assigned under these criteria: "The attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. 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. Demonstrably unable to obtain or retain employment." A 70 percent rating was assigned where the ability to establish and maintain effective or favorable relationships with people was severely impaired, during which the psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. Also under the "old" criteria, 50 percent rating was to be assigned where the ability to establish and maintain effective or favorable relationships with people was considerably impaired, during which the reliability, flexibility, and efficiency levels were so reduced that there was considerable industrial impairment. A 30 percent rating was warranted where there was definite impairment in the ability to establish or maintain effective and wholesome relationships with people, with psychoneurotic symptoms resulting in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. A 10 percent rating was assigned when symptomatology was less than that for a 30 percent rating, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment. See 38 C.F.R. § 4.132, DC 9400 (1996). The Board also notes that the criteria in 38 C.F.R. § 4.132, DC 9400, for a 100 percent rating are separate and independent bases for granting a 100 percent rating. See Johnson v. Brown, 7 Vet.App. 95, 97 (1994). The intended effect of the newly effective regulatory changes is to update the portion of the rating schedule that addresses mental disorders, to ensure that it uses current medical terminology and unambiguous criteria and that it reflects medical advances that have occurred since the previous review of regulatory criteria. Subsequent to the regulatory changes effective on and after November 7, 1996, the veteran's service-connected psychiatric disorder was continued at a 10 percent rating under 38 C.F.R. § 4.130. When evaluating a mental disorder under the new regulatory scheme, the RO shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (1999). Under the current, post-November 7, 1996, criteria, the currently assigned 10 percent evaluation is warranted where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent evaluation is warranted for occupational and social impairment with 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation requires 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. For higher ratings under the current criteria, a 70 percent evaluation requires 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. For a disability rating of 100 percent, the veteran must show total occupational and social impairment, due to such symptoms as: gross impairment in though 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; memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130 (1999). As noted above, in evaluating the veteran's disability under section 4.132 (old criteria), two of the most important determinants of disability are time lost from gainful work and a decrease in work efficiency. See section 4.130. A review of the evidence reflects that the veteran has been diagnosed with a generalized anxiety disorder, which, during his most recent VA examination in July 1998, was noted as mild to moderate in severity. At that examination, the examiner also noted that the veteran suffered from dysthymia, and that he had meaningful relationships with friends and family. The veteran's overall disability was assigned a GAF score of 65. The Board notes that a GAF score of 65 is indicative of some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning, but generally indicates an individual who is functioning pretty well, with some meaningful interpersonal relationships. See Quick Reference to the Diagnostic Criteria from DSM-IV, Washington, DC, American Psychiatric Association, 1994. Additionally, a treatment note in November 1998 revealed that the veteran worked as a janitor for 35 hours a week, had stopped taking his medications for anxiety and depression, and did not suffer from panic attacks or suicidal/homicidal ideation. The veteran also was noted as being calm and not depressed. The diagnosis was generalized anxiety disorder. A March 1999 consultation report, from Dr. Huey, noted that the veteran continued to work as a janitor at a grocery store, and to play golf occasionally. In May 1999, the veteran reported that he was prescribed Lorazepam to help him sleep. Therefore, when the Board considers the old rating criteria, as in effect prior to November 7, 1996, and the evidence of record, we find the veteran has not shown definite impairment in the ability to establish or maintain effective and wholesome relationships with people; or that psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. Thus, the veteran's disability does not warrant an increase to 30 percent. 38 C.F.R. § 4.132, DC 9400 (1996). With respect to the rating criteria effective on and after November 7, 1996, when evaluating a mental disorder under the new regulatory scheme, the RO shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the veteran's capacity for adjustment during periods of remission. When we consider the evidence of record, we find that a preponderance of the evidence is against a rating greater than 10 percent. In so concluding, we note that the frequency and severity of the veteran's anxiety disorder and depression appear related to personal health concerns, as he has been treated for a number of significant physical problems. The most recent evidence, as noted in clinical records, dated in November 1998 and March 1999, indicates the veteran to be doing fairly well. While he appears to have sleep-related problems for which he takes medication, he is noted to function adequately in both occupational and social settings, working 35 hours a week, playing golf occasionally, and maintaining good relationships with friends and family. Thus, the Board finds that the veteran's service-connected psychiatric disability is not reflective of occupational and social impairment with 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, or mild memory loss (such as forgetting names, directions, recent events). Thus, we find the preponderance of the evidence is against an increased rating to 30 percent. 38 C.F.R. § 4.130, DC 9400 (1999). Furthermore, given that the veteran does not warrant an increased rating to 30 percent, the Board logically concludes that the evidence does not support an increased rating greater than 30 percent under either set of schedular criteria. We recognize that the RO has not had an opportunity to consider the November 1999 letter which the veteran sent directly to the Board. Clearly, the principal import of that letter was to cancel the hearing before the Board, scheduled for January 2000. As for his description, therein, of continuing health problems and the part-time work he was performing, the veteran raised no evidentiary matters not already covered in the previously submitted evidence. Therefore, although the Board is very sympathetic with the veteran's difficulties, and notes that he may have a right to appeal the adverse action on his (non-VA) pension within the government of South Carolina, we must decide this appeal based upon the evidence of record as it relates to the applicable rating criteria. We have considered the applicability of the benefit-of-the- doubt/reasonable-doubt doctrine, which provides that, where the Board finds an approximate balance of positive and negative evidence as to the merits of the claim, the benefit of the doubt shall be given to the veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. However here, while we are sympathetic to the veteran's claim, the evidence preponderates against an increased rating, so that doctrine does not come into play. ORDER Entitlement to an increased rating greater than 10 percent for a psychiatric disorder is denied. ANDREW J. MULLEN Member, Board of Veterans' Appeals