Citation Nr: 0005769 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 95-41 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased rating for an anxiety disorder, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Eckart, Associate Counsel INTRODUCTION The appellant is the spouse of the veteran who served on active duty from July 1942 to January 1946. He has been considered incompetent for VA purposes since October 1995. This case initially came before the Board of Veterans' Appeals (Board) on appeal from an August 1995 rating decision of the New Orleans, Louisiana Regional Office (RO) of the Department of Veterans Affairs (VA), which inter alia, increased the rating for the veteran's anxiety disorder to 30 percent disabling. In October 1998, the Board remanded the case to the RO and requested additional development of the issue. In a September 1999 supplemental statement of the case, the RO provided notice of continued denial of an increased evaluation for the anxiety disorder, following additional development and consideration of the issue, as requested by the Board in its October 1998 remand. The case is now returned to the Board for further consideration. FINDING OF FACT The veteran's service-connected anxiety disorder is currently manifested by symptoms consisting of persistent anxiety, nervousness, tenseness, and sleep disturbances, with symptoms of waxing and waning in severity, resulting in social and industrial impairment described as ranging from minimal to moderate on recent VA examinations. CONCLUSION OF LAW The criteria for an increased evaluation for generalized anxiety disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, Part 4, Diagnostic Codes 9400 (1996), 9400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background Service medical records reveal that the veteran was diagnosed with an anxiety state, mild, in his separation examination of January 1946, which noted a history of sleepwalking and talking in his sleep since September 1944. By rating decision of March 1946, the RO granted service connection for Anxiety State, mild, and assigned a 50 percent evaluation thereto. The evaluation was reduced to 30 percent disabling by the RO in an August 1946 rating decision, following an August 1946 VA examination which did not find any definite evidence of psychological problems at the time, but reported his complaints of sleep problems due to nightmares; of irritability; of becoming easily angered; of occasionally feeling depressed and feeling people are against him. The veteran's anxiety disorder was reduced again to 10 percent disabling by the RO in a September 1951 rating decision, following an August 1951 VA examination which reported no evidence of tension or instability and determined that he had apparently recovered from his anxiety reaction. VA treatment records from 1994 through 1995, primarily addressed treatment for cardiovascular problems and other physical complaints not affiliated with his anxiety disorder. In July 1995, the veteran underwent a VA examination, which addressed in part his complaints of anxiety, in addition to numerous physical complaints, plus complaints surrounding his nonservice connected dementia. He made subjective complaints of being unable to write very well; gradual worsening of his memory to the point where he has to refer to his wife to refresh his memory. He complained of taking a long time to determine the date, month and his location; his orientation was impaired, delayed and slow. He was noted to be able to name five living presidents and the most recent two states to join the union, but it took him longer than average. He was noted to become anxious over bowel and bladder function, requiring reassurances from his wife in that area. A history of anxiety neurosis, dating back to service was noted, with symptoms described as continuous, waxing and waning but never disappearing. He was noted to have awakened quite anxious at times, with a rapid heartbeat and blood pressure up. He was noted to have some sleep walking symptoms at home as well, according to his wife. The more significant problems that have contributed to the veteran's current difficulties were noted to be more recent. Occupationally, he was said to have a history of having worked as a fire captain for 20 years, and retired in 1982. The Axis I diagnosis rendered was generalized anxiety disorder, said to be the same anxiety condition that had been referred to earlier in the claims file as "neurosis." He was said to have a significant impairment in social and industrial functioning in part due to anxiety, as well as due to dementia. Pursuant to the Board's remand of October 1998, the veteran underwent a series of VA psychiatric examinations. The first examination, conducted in July 1999, related the history of the veteran's anxiety disorder, including the reclassification of his diagnosis to anxiety disorder in recent times. The examiner ascertained that the veteran had not ever received any treatment in the VA system for his anxiety disorder or any other psychiatric disorder. The veteran indicated that he had been "nervous" when he left the service, and had been having problems with irritability and sleep walking. He indicated that he did not take medication for psychiatric disorders while younger, and had been prescribed some sort of medication for nerves in the past 4 or 5 years, but that they had been discontinued. When questioned about what he had been nervous about when younger, he had a difficult time answering the question and also had difficulty articulating how anxiety had interfered with his life after service, but stated that "he was always nervous." A history of numerous medical problems was noted, but the veteran did not mention feeling particularly anxious or concerned about them at the time of the interview. When asked at least three times whether he felt anxious currently, he denied the presence of any current anxiety. He was noted to have dementia, which was felt to be interfering with his ability to respond to questions. On examination, he was cooperative, but appeared to have some difficulty understanding the nature of some questions. No psychotic features or hallucinations or delusions were elicited. His mood appeared calm and euthymic and affect was consistent with mood. His speech was normal in rate, tone and volume. He denied any sleep or appetite disturbance. No diagnostic tests were performed. He and his spouse were unable to state how any current anxiety was interfering with daily functioning. It was not clear that it presents any interference with anyone he comes in contact with. The Axis I diagnosis included anxiety, as well as dementia. The record was noted to indicate a history of anxiety, which does not appear severe in nature. It was speculated that the dementia might be masking the level of anxiety somewhat. It was noted that consistent with the nature of the illness, that there are periods of increased symptoms, followed by periods of relative degrees of remission. It was speculated that this disorder is in a relative state of remission at this time. The examiner reported that the global assessment of functioning (GAF) from the standpoint of his anxiety would appear to be 90, while the GAF from dementia would be 40. In August 1999, the veteran underwent a reevaluation. His military history was repeated, as well as his history of having worked as a firefighter and a carpenter, and was now currently disabled for over 10 years. A recent history of the veteran having become worse with a lot of physical problems was noted. Since his VA examination of July 1995, he was said to be continuing to have difficulty. He had not been taking his "nerve pills" recently, as the doctors took him off that medication. He was said to be on this unknown nerve medication for five or six years. He had been staying in the house. There was less sleep walking occurring. He was said to still be nervous, tense, jumpy and unable to relax. There were no episodes of violence or threats to hurt self or others. No depression or suicidal thoughts were reported. He was said to still have a great deal of anxiety. He was said to have good days that come and go. At times he was said to wake up at night. He also was noted to have trouble hearing and trouble with his memory. His wife was noted to help him out paying bills and other activities. His psychiatric disorder was ascertained to be mainly generalized anxiety. As best as the examiner in the August 1999 examination could tell, there was no history of psychosis in any form or of paranoia. He was said to be withdrawn now primarily because of physical problems which were noted to make his status more difficult. He denied severe depression. Daily activities were markedly impaired. Mainly he was said to sit in his chair. He complained of being too weak and unable to get up, and was unable to be alone. He was noted to have his family help him constantly. He was eating better, but had trouble sleeping. On mental status examination, he was observed to be friendly but seemed tense. He seemed to understand and answer questions well. He was aware of when he had memory problems such as recalling dates. On memory test he could only recall one out of the three last presidents. He could multiply three times six, but not nine times eight. He could spell world forwards and backwards and knew his social security number, although he could not answer questions very well. He could identify a nickel, dime and quarter total as 40 cents. There was no thought disorder present. His speech was coherent and logical. He denied current delusions, hallucinations and homicidal or suicidal ideas. Intellect seemed average, although somewhat impaired by dementia. Insight and judgment were good. His anxiety was said to continue to persist, however his more persistent problems now were his physical problems. He did seem to be getting more anxious associated with his failing physical health. He was said to have difficulty establishing and maintaining relationships with anyone except family, because he was unable to get around. His family was very supportive of him and there was someone around him all the time. The current Axis I diagnosis included generalized anxiety disorder, chronic, as well as dementia. His numerous physical problems, mainly associated with cardiovascular pathology, were noted in the Axis III diagnosis. His Axis V GAF regarding his anxiety was assessed as around 55, which is he has moderate difficulty with social functioning. Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity resulting from specific service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be shown for specific ratings. 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. The severity of disability is based upon actual symptomatology, as it affects social and industrial adaptability. Two of the most important determinants of disability are time lost from gainful work and decrease in work efficiency. Great emphasis is placed upon the full report of the examiner and descriptive of actual symptomatology. The record of the history and complaints is only preliminary to the examination. The objective findings and the examiner's analysis of the symptomatology are the essentials. 38 C.F.R. § 4.130. In considering the severity of a disability it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1999). The regulations pertaining to rating psychiatric disabilities were revised effective November 7, 1996. The Court has held that where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). According to the General Rating Formula for Mental Disorders in effect since November 7, 1996, a 50 percent evaluation is warranted for the following symptoms: 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; difficulty in establishing and maintaining effective work and social relationships. A 30 percent evaluation is warranted for the following symptoms: 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). Under the "old" regulations pertaining to psychiatric disabilities in effect prior to November 7, 1996, a 50 percent evaluation required the ability to establish or maintain effective or favorable relationships with people be considerably impaired and where the reliability, flexibility and efficiency levels are so reduced by reason of psychoneurotic symptoms as to result in considerable industrial impairment. A 30 percent evaluation required definite impairment in the ability to establish or maintain effective and wholesome relationships with people and psychoneurotic symptoms resulting in such reductions in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. In Hood v. Brown, 4 Vet. App. 301 (1993) the Court held that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other terms were "quantitative" in character, and invited the Board to "construe" the term "definite" in a manner which quantifies the degree of impairment for purposes of meeting the statutory requirement that the Board articulate its "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 the term "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability, which is "more than moderate but less than rather large." O.G.C. Prec. 9-93 (Nov. 9, 1993). Regarding the term "considerable," in the same precedent opinion, the General Counsel of VA (among other things) employed "rather large in extent or degree" as a description of the considerable impairment that would warrant an evaluation of 50 percent for a psychiatric disability. VAOPGCPREC 9-93 (O.G.C. Prec. 9-93). The Board is bound by precedent opinions issued by VA General Counsel. 38 U.S.C.A. § 7104(c) (West 1991). Consequently, the Board will address the merits of the veteran's claim for an increased evaluation of his service-connected generalized anxiety, in relation to the regulations in effect prior to November 7, 1996, with these interpretation of "definite" and "considerable" in mind. The Board notes here that the RO has also reviewed the veteran's claim under the provisions of the "new" diagnostic criteria as evidenced by a supplemental statement of the case issued in August 1999. However, the RO determined that a rating in excess of the current 30 percent is not warranted under the "new" criteria as well as the "old" criteria. While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Upon review of the foregoing, the Board finds the preponderance of the evidence is against a grant of increased evaluation for the veteran's service connected anxiety disorder. Specifically, the findings from the most recent VA examinations from July and August of 1999 reveal the level of disability from the service connected anxiety disorder to be consistent with the currently assigned 30 percent evaluation, under either the old criteria or the criteria currently in effect. The symptomatology of record attributable to anxiety is noted to produce occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Board observes that there are major problems regarding his routine behavior, self-care, and conversation, and he is required to be under constant care of family members, secondary to nonservice connected physical problems, including his dementia. He is also noted to have difficulty in understanding complex commands; impairment of short-and long-term memory. While these problems are included among the criteria for a 50 percent evaluation under the psychiatric criteria currently in effect, the VA examination from July 1999 found that the dementia was possibly interfering with his ability to respond to questions. The overall evidence indicates that these cognitive problems are due to his nonservice connected dementia rather than due to anxiety. Most significantly the report from the July 1999 VA examination stated that the veteran's GAF score relating to his anxiety symptoms was 90, while his GAF score relating to his dementia was 40. While the more recent VA examination of August 1999 revealed a GAF score regarding his anxiety to be 55, this score did not appear to be consistent with the overall findings which revealed some affect of mild anxiety, but otherwise no thought disorder, or other psychiatric pathology including delusions, hallucinations, homicidal or suicidal ideations. His intellect seemed average, but somewhat impaired by dementia, and insight and judgment were good. His anxiety was persistent, but his physical problems were shown to be the overwhelming source of his problems with social functioning. The findings from the recent VA examinations are consistent with a 30 percent evaluation under the regulations pertaining to psychiatric disabilities in effect since November 7, 1996. The evidence likewise demonstrates a "definite" impairment in the ability to establish or maintain effective relationships with people, and a reduction of initiative, flexibility and reliability levels, consistent with a 30 percent evaluation according to the regulations in effect prior to November 7, 1996. The evidence shows that his symptoms do not rise to the level warranting a 50 percent evaluation under either the "old" or "new" regulations. His symptoms, attributable to service connected anxiety reaction are not shown to arise to the level of 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; difficulty in establishing and maintaining effective work and social relationships that would warrant a 50 percent evaluation under the "new" regulations in effect since November 1996. Nor does the evidence demonstrate that his symptoms attributable to his service connected anxiety disorder rise to the level that they have considerably impaired his ability to establish or maintain effective or favorable relationships with people, nor are the veteran's reliability, flexibility, and efficiency levels so reduced by reason of psychoneurotic symptoms as to result in considerable industrial impairment, consistent with a 50 percent evaluation under the "old" regulations. Consideration has been given to the doctrine of reasonable doubt as to this issue, but the preponderance of the evidence is against the claim. As such, the claim is denied. 38 U.S.C.A. § 5107; Gilbert, supra. ORDER The veteran's claim for an increased rating for a service connected anxiety disorder, is denied. A. BRYANT Member, Board of Veterans' Appeals