Citation Nr: 0321684 Decision Date: 08/28/03 Archive Date: 01/21/04 DOCKET NO. 98-01 887 DATE AUG 28, 2003 On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased rating for service-connected anxiety disorder, currently evaluated as 70 percent disabling. 2. Entitlement to a total disability rating based on individual employability due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. J. Alibrando, Counsel INTRODUCTION The appellant served on active duty from December 1961 to August 1963. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The veteran's service-connected anxiety disorder results in total occupational and social impairment and is manifested by severe anxiety, social isolation, inability to concentrate and inability to travel due to anxiety. CONCLUSION OF LAW 1. The criteria for entitlement to an increased disability rating of 100 percent for the service-connected anxiety disorder are met. 38 U.S.C.A. 1155, 5107 (West 2002); 38 C.F.R. Part 4, 4.16(c), 4.130, Diagnostic Code 9400 (2002). 2. The issue of a total disability rating based on individual unemployability (TDIU) is moot. Vettese v. Brown, 7 Vet App. 31 (1994); Holland v. Brown, 6 Vet App. 443 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which redefined VA's duty to notify and to assist - 2 - claimants for VA benefits. See 38 U.S.C.A. 5100, 5102, 5103, 5103A, 5107, 5126 (West Supp. 2002); 38 C.F.R. 3.102, 3.156, 3.159, and 3.326 (2002). The Board finds that the RO has fully satisfied its duties of notice and assistance and that sufficient evidence is of record to decide the veteran's claim. If there were any deficiency of notice or assistance, it is not prejudicial to the veteran, given the favorable nature of the Board's decision with regard to the issue of an increased rating for the service-connected psychiatric disorder. No further assistance in developing the facts pertinent to the issues is required. II. Increased rating The veteran's claims were received in March 1997. In a September 1997 rating action, the RO denied a rating in excess of 70 percent for the service-connected anxiety disorder and entitlement to a total disability rating based on individual unemployability due to the service-connected disability. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. - 3 - Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. The veteran's service-connected anxiety neurosis is currently rated as 70 percent disabling under the provisions of Diagnostic Code 9400. A 100 percent evaluation requires 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, including Diagnostic Code 9400 (2002). In the field of mental disorders, the severity of disability is based upon actual symptomatology, as it affects social and industrial adaptability. 38 C.F.R. 4.130 (2002). In evaluating impairment resulting from the ratable psychiatric disorders, social inadaptability is to be evaluated only as it affects industrial adaptability based on all of the evidence of record. 38 C.F.R. 4.129 (2002). An April 1997 VA Social and Industrial Field Survey Report shows that the veteran had a 12th grade education and, after discharge from active service, had worked in the construction field, including supervisory positions. The veteran reported that he had not worked since November 1995 and was receiving treatment for his psychiatric disorder from VA. He reported that he was anxious and afraid that he was going to die, and stated that he avoided socializing with neighbors and going out of his house. The examiner indicated that interviews with the veteran's wife and neighbors showed that he was socially isolated and did not go out of the house very often. On VA examination in April 1997, the veteran reported that he woke up agitated and full of fears. He reported nausea, dizziness and gastric problems. He indicated 4 - that he stayed home most of the time and did not drive. He was fearful of crowds and bridges. On mental status examination, his mood was anxious and his affect was constricted. There were no hallucinations and he was not homicidal or suicidal. Insight and judgment were fair. The assessment was generalized anxiety disorder and the Global Assessment of Functioning (GAF) Score was 70. On VA examination in April 1999, the veteran indicated that he had not worked in three years, and had an episode in a public place where he forgot where he was. He stayed in his room all day. On examination, his mood was anxious. His concentration and memory were fair. He reported that his wife was the one who knew everything. He was somewhat evasive as to reporting details of his condition. The assessment was generalized anxiety disorder and the GAF score was 70. On VA examination in May 2003, the veteran reported that he stopped working in the construction business in 1996 due to severe anxiety, restlessness and insomnia. He reported that in the previous year, he had anxiety episodes with palpitations, choking and fear of dying. He felt sad, was irritable, had insomnia and was unable to concentrate. He was afraid of going to places outside his home, being in a crowd and standing in line. He avoided leisure activities such as going to the beach, because he was afraid of developing an anxiety episode. On examination, his mood was anxious and irritable. His affect was broad and appropriate. He memory was intact, judgment was good and insight was fair. There was no evidence of delusions or hallucination. The assessment was generalized anxiety disorder and the GAF score was 50. The examiner concluded that the veteran had serious symptoms and serious impairment in social and occupations functioning. It was noted that he had anxiety, anxiety episodes, fear of dying, avoidance of social situations and avoidance of traveling due to anticipatory anxiety feelings. It was noted that he avoided going to shopping centers and stores to avoid development of anxiety symptoms. The examiner indicated that the veteran was excessively worried about every day routine life sequences. The examiner concluded that the symptoms produced significant impairment in the veteran's functioning and produced a severe degree of impairment in his social and industrial adaptability and was severely interfering in his capacity to perform adequately in a working environment. - 5 - The evidence includes records of the Social Security Administration which show the veteran was awarded disability benefits on the basis, in part, of diagnosed anxiety and panic attacks. Those records include private outpatient treatment records and a November 1996 private doctor's statement showing a diagnosis of severe anxiety disorder. The Board finds that the disability picture referable to the service-connected psychiatric disorder more nearly approximates a level of disability consistent with total occupational and social impairment as required for the assignment of a 100 percent rating under the criteria in Diagnostic Code 9400. The clinical evidence shows that the veteran has received treatment for the service- connected psychiatric disorder for many years, and certainly since filing of his increased rating claim in March 1997. The evidence indicates the veteran has not worked in many years, since approximately 1996. The VA examination reports and private outpatient treatment records show that the veteran experiences constant anxiety, is excessively isolated, unable to drive, and has some impairment of concentration. The April 1997 and 1999 VA examination reports showed that the GAF score was 70. The GAF score was significantly lower at the time his most recent VA examination in May 2003, shown to be 50, which indicates serious symptoms or any serious impairment in social and occupational, or school functions, to include the inability to keep a job. See American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994) (DSM-IV). The medical evidence shows that the veteran is significantly impaired both socially and occupationally as a result of his anxiety disorder and that he is unable to maintain social or occupational relationships as a result of his disability. Therefore, the Board concludes that it is likely that he has total social and occupation impairment due to the service-connected generalized anxiety disorder. Therefore, the Board finds that a 100 percent schedular rating is for application under the provisions of 38 C.F.R. 4.130 including Diagnostic Code 9400 (2002). - 6 - III. Entitlement to a Total Disability rating based upon Individual Unemployability. As set forth above, the veteran's disability rating for his service-connected anxiety disorder is increased to 100 percent. Total disability based upon individual unemployability contemplates a schedular rating less than total. 38 C.F.R. 4.16(a) (2002). Since the veteran in this case is entitled to a 100 percent schedular rating for his service-connected anxiety disorder, he is not eligible for a TDIU evaluation. See Vettese v. Brown, 7 Vet App. 31 (1994) ("claim for TDIU presupposes that the rating for the condition is less than 100 percent"); Holland v. Brown, 6 Vet App. 443 (1994). In essence a TDIU rating is moot as the veteran has a total rating based on his service-connected disability. Therefore, as a matter of law, the veteran's claim for TDIU fails. ORDER A 100 percent disability evaluation for the service-connected anxiety disorder is granted, subject to the laws and regulations governing the payment of VA benefits. The issue of a total disability rating based on individual unemployability resulting from service-connected disability is moot. MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 7 - Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you. 8 -