BVA9500648 DOCKET NO. 91-20 284 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased evaluation for service-connected anxiety disorder with panic and agoraphobia, competent, currently evaluated as 70 percent disabling, to include a schedular 100 percent disability rating pursuant to 38 C.F.R. § 4.16(c). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD C. Chaplin, Associate Counsel INTRODUCTION The veteran had active service from September 1952 to August 1954. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of November 1989, from the Cleveland, Ohio, regional office (RO) which confirmed and continued the rating of August 1989 which restored a 70 percent disability rating, effective September 1, 1988, granted Paragraph 29 benefits from March 17, 1989, and continued the 70 percent disability rating, effective from June 1, 1989. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO erred in not granting an increased evaluation for service-connected anxiety disorder with panic and agoraphobia, competent, or a total rating based on individual unemployability due to a service connected disability. The veteran contends that he is unable to maintain substantial gainful employment, due to the severity and chronicity of his service-connected psychiatric impairment. 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 resolving the benefit of the doubt in the veteran's favor, the evidence supports a grant of a 100 percent schedular disability rating under 38 C.F.R. § 4.16(c) (1994). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the agency of original jurisdiction. 2. The appellant has not been gainfully employed since November 1984. 3. He was a self-employed carpet layer, has a ninth grade education, and no specialized training. 4. He is service-connected for anxiety disorder with panic and agoraphobia, competent, evaluated as 70 percent disabling, which is his only compensable service-connected disability. 5. The appellant is precluded by service-connected disability from obtaining and sustaining substantially gainful employment. CONCLUSION OF LAW A schedular 100 percent disability rating based on unemployability caused by a service-connected disability is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.340, Part 4, § 4.16(c) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant submitted a medical record report for a period of hospitalization seeking an evaluation of a service-connected disorder. Accordingly, we find that the appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. 5107(a) (West 1991); that is, he has presented a claim that is plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, he has not indicated that any probative evidence not already associated with the claims folder is available; therefore the duty to assist him has been satisfied. Id. The veteran is service-connected for anxiety disorder with panic and agoraphobia, competent, evaluated as 70 percent disabling from February 1, 1991. The RO assigned this rating under the provisions of Diagnostic Code 9400 of the Schedule for Rating Disabilities, 38 C.F.R. § 4.132 (1994). The provisions contained in the rating schedule represent as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from disability. In assessing the severity of a psychiatric disorder, effects of that disorder on the veteran's ability to interact on both a social and industrial level are considered. In this regard, however, social inadaptability is evaluated only as it affects or impairs industrial adaptability. The evaluation for the veteran's service-connected anxiety disorder with panic and agoraphobia, competent, is based on the degree of impairment of his social and industrial adaptability. A 70 percent evaluation requires that the ability to establish and maintain effective or favorable relationships with people be severely impaired and that the psychoneurotic symptoms be of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent evaluation requires that attitudes of all contacts except the most intimate be so adversely affected as to result in virtual isolation in the community; or there be totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes (such as fantasy, confusion, panic, and explosions of aggressive energy) associated with almost all daily activities resulting in a profound retreat from mature behavior. The individual must be demonstrably unable to obtain or retain employment. 38 C.F.R. Part 4, Diagnostic Code 9400 (1994). In cases in which the only compensable service-connected disability is a mental disorder assigned a 70 percent evaluation, and such mental disorder precludes a veteran from securing or following a substantially gainful occupation, the mental disorder shall be assigned a 100 percent schedular evaluation under the appropriate diagnostic code. 38 C.F.R. § 4.16(c) (1994). When, after consideration of all evidence and material of record in a case before the Department of Veterans Affairs (VA) with respect to benefits under laws administered by the VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. Nothing in this subsection shall be construed as shifting from the claimant to the Secretary the burden specified in subsection (a) of this section. 38 U.S.C.A. § 5107(b) (West 1991) We note that this case was remanded in April 1992 for the RO to consider the veteran's claim under 38 C.F.R. § 4.16(c) (1994). The veteran, in his substantive appeal received in January 1992, claimed that he was not able to be around people and not able to hold any type of gainful employment. The Board noted that in the informal presentation, the veteran, through his representative, pointed out that a determination had not been made as to the appellant's employability status. Further, the United States Court of Veterans Appeals has held that where the claim involves an increase from 70 percent to 100 percent for a psychiatric disorder, the matter of unemployability pursuant to 38 C.F.R. § 4.16(c) (1994) must be considered where it has been raised. Snow v. Derwinski, 1 Vet.App. 417 (1991). The Board requested that after all necessary development, the originating agency should formally adjudicate the veteran's entitlement to a total schedular rating pursuant to the provisions of 38 C.F.R. § 4.16(c) (1994). At a personal hearing in May 1986, the veteran mentioned that he had been awarded 100 percent disability by Social Security. In August 1988, he wrote that he had been reevaluated by Social Security and still found 100 percent disabled because of his service-connected disability. The veteran was afforded a VA medical examination in March 1989. The diagnoses included a nervous disorder and the doctor commented "It is my opinion that the veteran is unemployable because of the nervous disorder." The veteran submitted a report from a VA medical center where he was admitted in May 1989 for agoraphobia with panic attacks, alcohol abuse and depression. He was discharged in April 1989; however, he was rehospitalized in May 1989 by an order because of potential violence. He presented as very anxious, agitated and restless, distrustful of everybody. The report indicated ineffective coping with his psychiatric illness. The file also contains a hospitalization report in stating that he was capable of returning to full employment at discharge in July 1989. Evidence reviewed included a medical record report for a period of hospitalization from September 1990 until December 1990. At the time of admission, the veteran was showing moderate symptoms of anxiety, insomnia, moderate depression with difficulty in social functioning and occupational functioning, and conflicts within family. The veteran gave a history of symptoms of panic and anxiety getting markedly worse with numerous hospitalizations and inability to keep full time employment since 1984. He acknowledged that he was "still drinking alcohol off and on to manage his life on the outside." During a course of treatment involving medication and therapy the veteran's "progress was steady and satisfactory." His condition at the time of discharge was described as "no evidence of anxiety symptoms, no evidence of depression." It was noted that he had gained insight and better coping skills. The report concluded that the veteran was competent with "employability status to be determined through further after-care." We do not find evidence that this determination was made. At a personal hearing in December 1990 the veteran testified that his anxiety with agoraphobia immobilizes him. He stated that he fears that he is going to die when he goes outside and to get out of the house is a major project. He experiences anxiety and panic attacks. He claimed that he can't function when he goes outside. Further, he can't associate with anybody nor does he wish to associate with anybody. He feels that his disorder keeps him confined to the house. His wife testified that at times the veteran loses control of his emotions when he is dealing with her and the children. She described changes in personality from normal and subdued to being unreasonable and demanding. In May 1992, the veteran filed an application for increased compensation based on unemployability. He stated that he last worked full time in November 1984. He reported that he had monthly doctor appointments for the last 12 months and was hospitalized nine times since 1984. He claimed that he had a panic attack so severe in 1984 that he was never able to go back to work and lost everything. He wrote: "I am still not able to work. I am still applying for 100 % disability." Review of outpatient records for the period of July 1991 to June 1992 noted the history of agoraphobia and co-dependency and that the veteran was an active participant in group therapy. In addition, it was reported that at times he takes between 8 and 10 Valium daily. In November 1991, the entry reported that the veteran focused on his problem of agoraphobia and was successful with it. He started driving and going out again. The outpatient treatment records were not more descriptive of the service- connected nervous disorder. The veteran was again hospitalized for panic disorder with agoraphobia for a period from October 28, 1992, until November 10, 1992. He presented with a complaint of increased anxiety and panic. Symptoms included palpitations, diaphoresis, shortness of breath and sudden felling of fear of dying. Initially, he was maintained on benzodiazepine medication, however, after several days, there was a change to antidepressive medication which he tolerated and remained without panic symptoms throughout his hospitalization. He was to be seen in the Mental Hygiene clinic in two weeks for follow-up. There is evidence to suggest that other conditions, to include alcohol and drug dependency, may be of the veteran's anxiety disorder. For example, an outpatient record in March 1989 reported an admission of the veteran that he self-medicates with prescribed tranquilizers. An outpatient entry in May 1989 reported that the veteran expressed that he drinks only when he has panic attacks. The veteran describes having to drink beer in order to go to work, or drinking before going out or to control a panic attack. The consumption varies depending on the situation and availability of prescribed drugs. It is our conclusion that the veteran's mental disorder precludes him from securing or following a substantially gainful occupation. The record indicates that, although at times he is able to control the anxiety disorder, there are also recurring periods when he requires hospitalization for his service- connected disorder. He claims that he has difficulty leaving his house and being around people. The evidence shows that he has a severe mental disability and nonexistent social adjustment. A social and industrial survey has not been performed, and, although there is medical opinion of record to the effect that the veteran has been considered unemployable on occasion, the Board is not clear about his current employability. Nevertheless, we are constrained by the record before us and, finding the evidence it to be at least in equipoise, we extend to the veteran the benefit of the doubt, and our decision is in favor of the veteran. We conclude that the veteran is precluded from gainful employment due to his psychiatric disorder and is entitled to a 100 percent schedular disability rating under the provisions of 38 C.F.R. § 4.16(c) (1994). ORDER BETTINA S. CALLAWAY 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.