Citation Nr: 0006744 Decision Date: 03/13/00 Archive Date: 03/17/00\ DOCKET NO. 93-14 407A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an increased evaluation for anxiety reaction, currently rated 30 percent disabling REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. McCormack, Associate Counsel INTRODUCTION The veteran had active military service from November 1940 to October 1945 and from September to November 1950. This matter comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) Reno Regional Office (RO) April 1995 rating decision which denied an increased evaluation for anxiety reaction, rated 30 percent disabling, and denied service connection for macular degeneration of the eyes. These issues were at the Board in December 1996, at which time they were remanded for further development of the evidence. In October 1998, the Board denied service connection for macular degeneration of the eyes, and remanded the issue of increased rating for anxiety reaction for further evidentiary development. Thus, the issue remaining in appellate status is as stated on the title page above. By statement in support of claim in October 1998, the veteran notified the RO that he wished to appear at a hearing before the Board. He was scheduled for a hearing in February 2000; however, by letter in January 2000, he notified the Board that he no longer desired a hearing. Based on the foregoing, the Board will proceed below in accordance with the veteran's specified wishes. 38 C.F.R. § 20.704(e) (1999). FINDINGS OF FACT 1. The veteran's service-connected anxiety reaction is not shown to be productive of a considerable impairment of social and industrial adaptability. 2. His service-connected anxiety reaction is not shown to be productive of an occupational and social impairment with reduced reliability and productivity due to such symptoms as: circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring more than once a week; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; or difficulties establishing and maintaining effective work and social relationships. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for an anxiety reaction have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991& Supp. 1999); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.41, 4.42, 4.132, Diagnostic Code 9400 (1996); 4.130 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that the symptoms associated with his anxiety reaction are more disabling than reflected by the currently assigned 30 percent disability evaluation. Thus, he maintains that an increased evaluation is warranted for his anxiety reaction. As a preliminary matter, the Board finds that the veteran's claim for an increased evaluation is well grounded under 38 U.S.C.A. § 5107(a), as it is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In general, an allegation of an increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Here, the veteran's contention concerning the severity of his anxiety reaction (within the competence of a lay party to report) is sufficient to well ground his claim. Thus, the Board finds that the facts relevant to the issue on appeal have been properly developed and that the VA duty to assist the veteran has been satisfied. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate diagnostic codes identify the various disabilities. When evaluating a disability, any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3 (1999). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (1999). Where entitlement to VA compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a review of the recorded history of a disability is necessary in order to make an accurate evaluation, see 38 C.F.R. §§ 4.41, 4.42 (1999), the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). The schedular criteria for evaluation of psychiatric disabilities were changed effective November 7, 1996. The veteran's service-connected PTSD is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9400 (1999) (previously codified at 38 C.F.R. § 4.132, Code 9411 (1996)). Where a 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 veteran applies unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary does so. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Thus, the Board will evaluate the veteran's anxiety reaction under both the old and new rating criteria to determine which version is the most favorable to the veteran. In this case, the Board notes that the RO evaluated the veteran's claim under the old regulations in rendering the April 1995 rating decision. However, the Board also notes that the RO notified the veteran of the amended regulations in the supplemental statement of the case issued in March 1998 as well in as the supplemental statement of the case dated in July 1999. Accordingly, there is no prejudice to the veteran under Bernard v. Brown, 4 Vet. App. 384 (1993). A 30 percent rating under the old criteria was assigned where there was definite impairment of social and industrial adaptability. A 50 percent rating was assigned on a showing of considerable impairment of social and industrial adaptability. A 70 percent evaluation was warranted for severe impairment of social and industrial adaptability. A 100 percent evaluation was assigned where the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community and when there was 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, rendering the veteran demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Code 9400 (1996). Under the current Diagnostic Code 9411, a 30 percent evaluation is assignable 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 rating is to be assigned for 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 70 percent rating is assigned for 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for 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. 38 C.F.R. § 4.130, Code 9400 (1999). VA outpatient treatment records, dated from April 1993 to October 1998, show that the veteran received treatment for various physical problems, but no complaint, finding or treatment is shown relative to his service-connected anxiety reaction. On VA psychiatric examination in January 1995, the veteran was appropriately groomed and dressed. His speech was normal and his affect was affable but moderately apprehensive. His mood was one of frustration. He was well oriented and his memory and thought processes were normal. It was noted that he was retired. The pertinent diagnosis was mild to moderate depression with no psychotic symptoms. A Global Assessment of Functioning (GAF) score of 70 was assigned. At his November 1995 hearing, the veteran testified that he last sought treatment for his anxiety reaction about two years earlier. He also testified that his anxiety reaction caused tension, anger, frustration, sleeping difficulty and a startle response. He reported that he had a stroke two to three years earlier and that he had not worked since then. He indicated that his hearing and eye problems prevented him from working. He reported that he had a very good relationship with his wife of 36 years. He also stated that he did not take any medication for his anxiety reaction. On VA psychiatric examination in April 1997, the veteran was casually groomed. His speech was normal and his affect was friendly but somewhat anxious. His mood was described as upset. He was well oriented and his memory and thought processes were normal. It was noted that he had had a stroke in 1990 and that he retired in 1991. The pertinent diagnosis was generalized anxiety disorder. A GAF score of 60 was assigned. It was noted that the veteran had problems dealing effectively with people. By November 1997 addendum, the examiner who conducted the April 1997 VA psychiatric examination reported that the veteran experienced significant problems with anxiety and relationships. The examiner also reported that a GAF score of 60 was appropriate for the veteran's symptoms. On VA psychiatric examination in January 1999, the veteran reported that he had retired in 1991, and that he was happily remarried, following the death of his fourth wife of more than 30 years, who died in 1998 after a long, protracted illness. On mental status examination, the veteran was appropriately dressed and his memory, thought processes and speech were all normal. His mood was euthymic, although he became irritated when he thought that a question was too complex. The pertinent diagnosis was generalized anxiety disorder aggravated by deficits in vision and hearing problems. A GAF score of 60 was assigned. This score was described by the examiner as reflecting moderate symptoms. In reviewing the medical evidence, it is clear that an evaluation in excess of 30 percent is not warranted for the veteran's service-connected anxiety reaction under the old schedular criteria. The evidence does not show that his anxiety reaction is productive of a considerable impairment of social and industrial adaptability. In particular, the January 1995 psychiatric examination report does not reveal an anxiety reaction, but instead, it showed he had mild to moderate depression. In addition, subsequent VA psychiatric examination reports show that he was well groomed and that his orientation, speech, memory and thought processes were all normal. The subsequent psychiatric examination reports also show that he was assigned GAF scores of 60, described as reflecting moderate symptoms by the examiner who conducted the most recent VA psychiatric examination. Recent VA outpatient treatment records do not show that the veteran received any treatment for his anxiety reaction. He testified recently that his anxiety reaction produces various symptoms such as tension, anger, frustration, sleeping difficulty and startle response. However, it is observed that he also testified that he had not sought any treatment or taken any medication recently for his anxiety reaction and that he had a good relationship with his wife. Thus, while he has encountered difficulty as a result of his service- connected anxiety reaction, the recent evidence of record does not establish that it is now productive of a considerable impairment of social and industrial adaptability, and a rating in excess of 30 percent is not warranted for anxiety reaction under the old schedular criteria. The Board finds that a rating in excess of 30 percent is also unwarranted for the veteran's anxiety reaction under the new, revised rating criteria. In particular, the veteran testified and reported in clinical settings that he retired in 1991 because of a stroke, and that hearing and eye problems prevented him from working. In addition, prior VA psychiatric examination reports show that he had a good, longstanding relationship with his fourth wife (who recently passed away); the most recent VA psychiatric examination report shows that he now enjoys a happy relationship with his new wife. Thus, it does not appear that his anxiety reaction is productive of an occupational and social impairment with reduced reliability and productivity. Turning to the veteran's anxiety reaction symptoms, recent medical evidence demonstrates that he has mood disturbances. However, this evidence does not demonstrate that his anxiety disorder is productive of circumstantial, circumlocutory or stereotyped speech; panic attacks which occur more than once a week; difficulty understanding complex commands; impaired judgment; impaired abstract thinking; or difficulties establishing and maintaining effective work and social relationships. Thus, his anxiety reaction symptoms are not so severe as to warrant an evaluation in excess of 30 percent under the revised rating criteria either. The Board has also considered rating the veteran's anxiety reaction on an extraschedular basis under 38 C.F.R. § 3.321(b)(1) (1999). This permits adjusting a rating in an exceptional or unusual case where application of the schedular criteria are impractical. In this case, the evidence does not show that the veteran has recently been hospitalized frequently for his anxiety reaction. In addition, while the veteran is no longer working, as reported earlier, he has testified and reported in clinical settings that he retired in 1991 because of a stroke. As such, it does not appear that his anxiety reaction specifically causes a marked interference with employment. Thus, the recent evidence does not establish that the veteran's anxiety reaction symptoms rise to a level which warrant an extraschedular rating. Also considered were all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991), but no section provides a basis on which to assign higher a disability rating. ORDER An evaluation in excess of 30 percent for the veteran's anxiety reaction is denied. J. F. Gough Member, Board of Veterans' Appeals