Citation Nr: 0005269 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-28 864A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased disability for major depressive disorder with psychotic features (formerly classified as schizophrenia), currently rated as 70 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bernie Gallagher, Counsel INTRODUCTION The appellant had active service from December 1970 to February 1972. This matter comes before the Board of Veterans' Appeals (the Board) on appeal as a result of rating decisions by the Department of Veterans Affairs (VA) regional office (RO) in St. Petersburg, Florida. A rating decision in February 1997 granted the veteran a temporary 100 percent rating under 38 C.F.R. § 4.29 from October 19, 1996 through November 30, 1996, and restored the former 30 percent evaluation as of December 1, 1996. This case was remanded by the Board in July 1999 for further development. Subsequently, in a rating action in August 1999, the RO granted the veteran a 70 percent rating for major depressive disorder with psychotic features, from December 1, 1996. In the informal hearing presentation, the representative requested a grant of a total rating by reason of individual unemployability if the evidence was insufficient for a 100 percent schedular rating. The Board notes, however, that in the August 1999 rating decision (and the supplemental statement of the case of August 1999), the RO noted that the veteran could file a claim for individual unemployability if he decided to terminate his employment for medical reasons. He was also advised that this was a separate claim. He has not done so. The RO is requested to respond to the representative's request. FINDINGS OF FACT 1. The veteran's major depressive disorder with psychotic features is manifested by depressed mood, paranoid thinking, history of auditory hallucinations, frequent angry outbursts and concrete thinking. 2. The veteran's major depressive disorder with psychotic features does not result in more than severe impairment of social and industrial adaptability or more than occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent major depressive disorder with psychotic features have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.132, Diagnostic Code 9204 (1996); 38 C.F.R. § 4.7, 4.130, Diagnostic Code 9434 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual background. Service connection was established for schizophrenia, with ratings of 30 and 50 percent from 1972. A 30 percent rating was in effect from 1984. Manifestations of schizophrenia included depression, mistrust of others and poor impulse control. The veteran had a period of VA hospitalization from October 19, 1996 to November 12, 1996. He was admitted after trying to drive his car off the road, with his wife and daughter in the car. He had lost three jobs due to fights with his supervisor. He was on probation for assaulting his wife in July of 1996. He had noted an increase in paranoid ideation. During the hospitalization, he was treated with medication and remained cooperative with peers and the staff. He was involved with individual and group therapy, and the special high intensity treatment program. Due to his chief complaint on admission, he had been working in group in order to reduce his anger, rage, and paranoia. At no time during his hospitalization, did he reveal any evidence of auditory, visual, or tactile hallucinations. His anger and rage had subsided. He requested a three day pass in order to reassure his wife. At the time of discharge, the veteran was oriented and his mood and affect were congruent. There was no suicidal or assaultive ideation or intent. He denied auditory, visual, as well as tactile hallucinations. Nightmares had disappeared and he revealed no evidence of delusions. His paranoia had subsided. Insight was present. Judgment was intact. He had the capacity to request discharge and he was responsible for his actions and behavior. Because of his explosive behavior at work, he felt he would take several months before e he was able to return to his job. The diagnosis was depressive disorder, treated and improved. The GAF score was 50 on admission and 60 at discharge. The veteran filed a claim for an increased rating for his psychiatric disorder on October 31, 1996, during the above period of hospitalization.. In an addendum, dated in November 1996, it was reported that the veteran's wife did not think he was ready to return to her home. However, the veteran wished to be discharged from the hospital, and decided to live with his brother-in-law until he and his wife were in agreement as to his returning home. In February 1997, A VA psychologist reported that the veteran was under outpatient care at a VA mental health clinic and was unable to work because of his psychiatric condition. The veteran had a VA mental disorder examination in April 1997. He complained of significant problems with depression and sleep. His mind thought of horrible things such as killing and dying. He reported a poor appetite and weight loss. He stated that he was depressed most of the day for the past year and reported that he had crying spells even when watching cartoons. He thought about death frequently but denied any intent. He reported anhedonia. He just stayed home these days. He liked to sleep throughout the day because he did not have to interact with his two year old daughter or anyone else. He felt worthless and that people were against him. He described being irritable and angry frequently, and admitted he was on probation for a domestic violence charge. He had lost his last job after hitting the supervisor. He reported a great deal of difficulty getting along with people. He denied auditory hallucinations and ideas of reference or any manic spells. He reported that he went off over very minor things. He was currently being followed in the VA mental health clinic. The veteran was currently married to his fourth wife for three years and they had a two year old daughter. He claimed three other children. He had a strained relationship with his wife. She expressed a great deal of frustration with her husband and stated he needed help to make his medical appointments. She feared he would lose his job. He had hit his wife and children and was charged with domestic violence in 1996. He had no friends and enjoyed nothing. On mental status evaluation, the veteran was initially irritable, but calmed down and became cooperative. He was casually dressed and had an unkempt beard. His affect was constricted and congruent with his irritable mood. His speech was coherent, logical, and goal directed. There were no flights of ideas or pressure. His attention and concentration were intact. His memory was fair. He denied current suicidal or homicidal ideations, intent, or plan. He denied auditory, visual, or tactile hallucinations, delusions, or paranoia. The impression was that the veteran did not meet the criteria for schizophrenia under DSM IV criteria at this time, and he denied symptoms of schizophrenia in the past. He did have significant problems with depression, as well as an intermittent explosive disorder. He met the criteria for major depressive disorder, and intermittent explosive disorder based on DSM IV criteria. It was also felt that he had AXIS II character pathology which contributed to his significant difficulty with interpersonal relationships and difficulty with occupational functioning. Although he held one job for nine years, he had a great deal of difficulty on the job and particularly getting along with other people. He had a great deal of difficulty in his marriage and had been married four times. He was quite isolated from other people and had no friends or interests at this time. The diagnoses were major depressive disorder without psychotic features, and intermittent explosive disorder. Axis IV stressors were interpersonal problems, difficulties maintaining a job, social isolation, and chronic mental illness. His current GAF was 50. The veteran underwent a VA examination for mental disorders and a social and industrial survey in August 1999. The claims folder was reviewed. He reported that he was discharged from service because of his mental condition. Subsequently he had several periods of VA hospitalization for his mental disorder. Currently treatment included seeing a nurse every two or three weeks and taking Troxidone and Profenazine. He also attended anger management classes, depression classes, and coping skill classes in the past which he felt were very beneficial. He had been married four times and was in the process of divorce from his fourth wife. He had three children. Following service discharge, the veteran worked as a machine operator. He then completed a course in electronics and worked as a machine and laser operator for nine years but during this time he assaulted three people and his supervisors were happy when he quit in 1995. He then worked a couple of odd jobs but was fired because he hit a supervisor. He then went into the hospital in 1996. He was on disability for two years because he could not be with people. However, after treatment at the VA hospital, he started getting along with people and he was able to go back to work. He was currently a file clerk at this VA hospital. He had been there for ten months. He was saving his money in order to go back to Puerto Rico. He had received no complaints about his work and he went to work every day. He stated he stopped drinking about a year ago but used marijuana to help him relax and sleep. The veteran revealed that he had been arrested for domestic violence on three of his wives. He had been in the county jail at least five times. On mental status examination, the veteran was casually dressed and had a couple of days growth of beard. His mood was depressed and his affect was tearful. He did maintain good eye contact. Speech was fluent and grammatical, with appropriate rate and tone. He was alert and oriented to person, place, time, and situation. Attention and concentration were within normal limits. Very slight impairment was noted on short time memory. In regard to knowledge of current events, he stated that he did not watch the news and read the newspapers. He was somewhat interested in sports. His ability to do mental calculations was intact. He demonstrated concrete thinking although he was able to interpret proverbs abstractly. Insight was adequate and social judgment was mildly impaired. He admitted to suicidal and homicidal ideation. Apparently, he tried to kill his wife when he tried to hit her with a hammer. He was stopped by his brother-in-law. He indicated he had auditory hallucinations at home but denied visual hallucinations. He reported some mild paranoid thinking that he thought someone was hiding in the closet when he was in the house alone. He also reported violent thoughts, wishing that his wife were dead so he could get custody of his daughter. The veteran complained of severe depression which seemed to be getting worse, anger, difficulty getting long with people. He stated that he does not like people. He isolated himself and saw his brother only one weekend in three when he had his daughter. He had frequent episodes of tearfulness and he suffered from initial insomnia. After two or three days, he took marijuana to help him sleep. He was unable to watch television or movies because they mad him sad and caused him to cry. Although he went to work every day, he had to force himself to do so. He claimed his constant depression had worsened significantly in the last couple of months. He claimed his anger began after he got out of the military and it was based on people treating other people wrongly. Depression started after the breakup of his third marriage. When he was by himself, he often fantasizes about winning a lot of money and buying a house in the mountains, and wishing custody of his youngest daughter. He was not close to his older daughter. He raised his son for two and a half years and had some sort of relationship with him. He stated that when he became angry, he wanted to hurt people. He went bankrupt this year trying to please his wife, who wanted to move from Illinois to Florida, and buying a new car. The diagnostic impression was major depression, recurrent with mood congruent. The Global Assessment of Function (GAF) score was 50. This reflected psychological symptoms rated as severe. The examiner stated that it appeared with proper treatment the veteran was able to maintain employment, and apparently his participation in classes was helpful in teaching him how to cope, and also to enforce socialization upon him. His biggest problem was controlling his anger. Thus, as he was today, he would probably not be able to maintain gainful employment. B With more aggressive therapy, he might be able to work in gainful employment. In an addendum, the examiner said she saw no evidence of schizophrenia. He did have slight symptoms of paranoia which are accounted for under the mood disorder by mood congruent psychotic features. VA outpatient treatment records disclose the veteran has been seen on numerous occasions between 1994 through September 10, 1999, for treatment of his service-connected psychiatric disorder. These reports indicated frequent marijuana use. For example, on august 31, 1999, the diagnoses were recurrent depression and cannabis abuse. In September 1999, he reported increased difficulty with maintaining his previous level of activity. He did continue to work. II. Legal Analysis. The first responsibility of a claimant is to present a well- grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). A claim for an increased disability rating is well grounded if the claimant alleges that a service-connected condition has worsened. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In this case, the veteran has complained of increased psychiatric problems, and therefore, he has satisfied the initial burden of presenting a well-grounded claim. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1998). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In this case, the RO provided the veteran VA examinations, outpatient treatment, and a period of hospitalization. There is no indication of additional medical records that the RO failed to obtain. Therefore, VA has satisfied its duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a). 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 (1998). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1998); Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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). The diagnostic codes and provisions relating to psychiatric disorders were revised effective November 7, 1996. 38 C.F.R. §§ 4.13, 4.16, 4.125, 4.126, 4.127, 4.128, 4.129, 4.130, 4.131, 4.132 (1996); 61 Fed.Reg. 52695-52702 (Oct. 8, 1996). When a law or regulation changes after a claim has been filed but before the administrative appeal process has been concluded, VA must apply the regulatory version that is more favorable to the veteran. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). However, where the amended regulations expressly provide an effective date and do not allow for retroactive application, the veteran is not entitled to consideration of the amended regulations prior to the established effective date See 38 U.S.C.A. § 5110(g) (West 1991) (where compensation is awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the Act or administrative issue). Therefore, the Board must evaluate the veteran's claim for an increased rating from November 7, 1996, under both the old criteria in the VA Schedule for Rating Disabilities and the current regulations in order to ascertain which version is most favorable to the veteran, if indeed one is more favorable than the other. Under the old criteria, a 100 percent rating for a psychosis contemplated active psychotic manifestations of such extent, severity, depth, persistence, or bizarreness as to produce total social and industrial inadaptability. With lessor symptomatology such as to produce severe impairment of social and industrial adaptability, a 70 percent rating was assigned. When the veteran entered the VA hospital in October 1996, he was gainfully employed. A review of the relevant clinical evidence during that period does not show that the service- connected psychosis produced total social and industrial inadaptability. According to the relevant GAF scores (as measures of his psychological, social and occupational functioning), his symptoms were serious on hospital admission, and moderate on hospital discharge. Accordingly, a 100 percent rating under the old criteria was clearly not warranted. The revised criteria provides that a 70 percent rating may be assigned where there is 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; obsessive 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 worklike setting); inability to establish and maintain effective work relationships. Id. A 100 percent schedular rating may be assigned in cases where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought 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. Id. The clinical evidence discloses that the veteran has been consistently oriented. He does not exhibit gross impairment in thinking or communicating; or persistent delusions or hallucinations; or grossly inappropriate behavior; or persistent danger of hurting himself or others; or intermittent inability to perform activities of living; or significant memory loss. In addition, the assessment of his functioning was consistent with serious, but not more than serious, impairment in psychological, social or occupational functioning. Furthermore, at this time the record indicates that he is gainfully employed as a file clerk. Accordingly, the veteran does not meet the criteria for a 100 percent schedular rating under the old or new criteria. ORDER Entitlement to an increase in the 70 percent rating assigned for a major depressive disorder with psychotic features is denied. NANCY I. PHILLIPS Member, Board of Veterans' Appeals