92 Decision Citation: BVA 92-04725 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 88-00 740 ) DATE ) ) ) Sitting at Los Angeles, California THE ISSUES 1. Entitlement to an increased rating for anxiety neurosis with pseudoseizures, currently evaluated as 20 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION This matter came before the Board on appeal from a rating decision of November 1985 from the Los Angeles, California, Regional Office (hereinafter RO). The veteran served from May 1969 to May 1973. The notice of disagreement was received in June 1986. The statement of the case was issued in May 1987. The substantive appeal was received in June 1987. A supplemental statement of the case was issued in August 1987. A personal hearing on appeal was held in August 1987 before a travel section of this Board sitting at Los Angeles, California. The case was initially docketed at the Board in January 1988. By decision of June 1988, the case was remanded to the RO for additional development of the evidence, to include a period of hospitalization in a Department of Veterans Affairs (VA) medical facility for observation and evaluation of any neurologic or psychiatric disorder found to be present. Pursuant to this action, the appellant was hospitalized for one week in October 1988. A supplemental statement of the case was issued in January 1989. In March 1989, the appellant's representative noted that a VA psychiatric evaluation had not been conducted during the appellant's hospitalization, and asked that such examination be scheduled. Although a VA psychiatric evaluation was scheduled in May 1989, the appellant failed to report for examination. The appeal was returned to the jurisdiction of the Board in September 1989. In December 1989, the appellant's designated service organization submitted additional written argument to the Board, including a request for a VA psychiatric evaluation. In June 1990, the case was returned to the jurisdiction of the RO for purposes of scheduling such evaluation. The requested VA psychiatric evaluation was conducted in July 1990. A supplemental statement of the case was issued in October 1990. The case was returned to the jurisdiction of the Board, and was redocketed in July 1991. The appellant has been represented throughout this appeal by Disabled American Veterans. That organization submitted additional written argument to the Board in September 1991, and the case is now ready for appellate review. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability is addressed in the Remand portion of this decision. This appeal was initially completed by the Board section in December l99l. The Board, in its deliberations, applied the law in effect at that time. This included the provisions of Rowe v. Derwinski, U.S. Vet. App. No. 90-1326 (Nov. 27, 1991). Subsequently, the United States Court of Veterans Appeals (the Court) on reconsideration vacated the November 27, 1991, decision in Rowe by a January 3, 1992, memorandum decision. As the Court has clearly held in Tobler v. Derwinski, U.S. Vet. App. No. 91-1366 (Dec. 6, 1991, vacating, on reconsideration, the Court's decision of October 28, 1991), the decisions of the Court are binding upon the Board from the date on which they are issued. The January 3, 1992, decision in Rowe has the effect of returning the law to the status which existed prior to the issuance of the November 27, 1991, decision which was vacated. Accordingly, the instant case on appeal was removed from the administrative processing of the case and returned to the Board section for review in light of the January 3, 1992, memorandum decision. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO committed error in not granting an increased rating for his service-connected anxiety neurosis with pseudoseizures because it did not take into account or properly weigh the medical evidence of record, lay statements submitted on the appellant's behalf, the opinions of the appellant's private physicians, and the testimony offered at the appellant's recent personal hearing on appeal. It is contended that the frequency and severity of symptoms of his service-connected psychiatric disorder, and the impairment resulting from his antiseizure medication, warrant assignment of an increased evaluation. DECISION OF THE BOARD For the reasons and bases hereinafter set forth, it is the decision of the Board that the preponderance of the evidence supports the assignment of an increased rating of 50 percent for anxiety neurosis with pseudoseizures. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO. 2. The appellant's service-connected psychiatric disorder, evaluated as anxiety neurosis with pseudoseizures, is productive of substantial social and severe industrial impairment. CONCLUSION OF LAW A 50 percent evaluation for anxiety neurosis with pseudoseizures is warranted. 38 U.S.C. 1155 (formerly 38 U.S.C. 355); 38 C.F.R. Part 4, Code 9405. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds initially that the appellant's claim is "well grounded" within the meaning of 38 U.S.C. 5107(a) (formerly 38 U.S.C. 3007(a)); that is, it is not inherently implausible. We also find that the facts relevant to the issue on appeal have been properly developed and that the statutory obligation of the VA to assist the appellant in the development of his claim has been satisfied. 38 U.S.C. 5107(a). Since the appellant and his representative have also been diligent in identifying and obtaining records relevant to this claim, we see no areas in which further development might be fruitful. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. 1155. Separate diagnostic codes identify the various disabilities. Appellate review of the claims file shows that, while pseudoseizures were not actively manifested during the appellant's recent period of hospitalization for observation and evaluation, the presence of such pseudoseizure activity is adequately documented in the record. The appellant is reportedly divorced, has custody of his two teenage children, and is currently in receipt of Social Security disability benefits. On recent VA psychiatric evaluation, the appellant was correctly oriented, but was extremely agitated and occasionally tearful. His affect was angry, and he expressed hostility to the VA system. Memory was good for recent and remote events, and he was able to abstract proverbs and do serial subtraction. The cited psychiatric evaluation disclosed that the appellant's anxiety symptoms are minimal and that the major component of his service-connected psychiatric disorder is a situational depression manifested by insomnia, loss of interest, loss of energy, feelings of hopelessness, and withdrawal. While the Board is unable to distinguish these symptoms from those effects stemming from the appellant's maintenance dosage of 890 milligrams of Dilantin daily, they are all part of the service-connected disorder and must be considered in assessing the resultant social and industrial impairment. Based upon the current medical evidence of record, the Board finds that the appellant's service-connected psychiatric disorder with pseudoseizures would be more appropriately evaluated under the provisions of 38 C.F.R. Part 4, Code 9405, pertaining to depressive neurosis, also described as dysthymic disorder or adjustment disorder with depressed mood. The Schedule for Rating Disabilities provides that a 30 percent evaluation is warranted for a depressive neurosis when there is definite impairment in the ability to establish or maintain effective and wholesome relationships with people and when psychoneurotic symptoms result in such reductions in initiative, flexibility, efficiency and reliability levels as to produce considerable industrial impairment. A 50 percent evaluation requires that the ability to establish or maintain effective or favorable relationships with people be substantially impaired and that reliability, flexibility, and efficiency levels be so reduced by reason of psychoneurotic symptoms as to result in severe industrial impairment. 38 C.F.R. Part 4, Code 9405; effective prior to February 3, 1988. The Board finds that application of these criteria to the appellant's current symptomatology warrants assignment of an increased evaluation of 50 percent for his service-connected psychiatric disorder with pseudoseizures. The Board finds that the positive evidence outweighs the negative evidence in this case and that the appellant has satisfied the burden of proof required for favorable action on appeal. ORDER The appeal for an increased rating for anxiety neurosis with pseudoseizures is granted, subject to controlling regulations governing the payment of monetary benefits. REMAND In view of the Board's determination with respect to the issue of entitlement to an increased rating for depressive neurosis with pseudoseizures, the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability is REMANDED to the RO for additional development, review and reconsideration in light of that determination. The VA has a duty to assist the appellant in the development of facts pertinent to his claims. 38 U.S.C. § 5107(a) (formerly 38 U.S.C. § 3007(a); 38 C.F.R. § 3.103(a). The duty to assist the appellant in obtaining and developing available facts and evidence to support his claims include obtaining adequate and comprehensive VA examinations, includ- ing examinations by a specialist where indicated. In this particular case, the Board finds that additional information and evidence are needed with respect to how the veteran spends his time, the nature of his living arrangements, whether he has a driver's license, when he last sought employment, the type of employment sought, etc. Accordingly, the case is REMANDED for the following: The RO should schedule the appellant for a special Social and Industrial Survery determine his current level of social and industrial impairment stemming from his service-connected anxiety neurosis, pseudo seizures. All necessary and appropriate inquiry and procedures should be conducted and the findings reported in accordance with the applicable provisions of the Physician's Guide for Disability Evaluation Examinations, Chapter l4. The examiner should be asked to state whether, in his or her judgment, the veteran is unemployable as a result of his service-connected psychoneurotic disorder. If the claim remains denied following such development and review, the appellant and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity in which to respond. Thereafter, the case should be returned to the Board for further appellate review, if in order. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * HARRY M. McALLISTER, M.D. RICHARD B. STANDEFER *38 U.S.C. § 7102(a)(2)(A) (1989) (formerly § 4002(a)(2)(A), recodified in 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. (CONTINUED ON NEXT PAGE) Under 38 U.S.C. § 7252 (formerly 38 U.S.C. § 4052), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.