Citation Nr: 9837753 Decision Date: 12/29/98 Archive Date: 01/05/99 DOCKET NO. 96-32 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased evaluation for anxiety disorder, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD P. A. Kultgen, Associate Counsel INTRODUCTION The veteran had active service with the United States Naval Reserve from September 1942 to October 1944. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a January 1996 rating decision from the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which continued a noncompensable evaluation for anxiety disorder. By rating decision in December 1996, the RO increased the evaluation to 10 percent, effective September 27, 1995. The Board notes that the veteran made a claim for service connection for post-traumatic stress disorder (PTSD) in August 1997. The RO informed the veteran that this claim would not be adjudicated as PTSD symptomatology would be evaluated under the veteran’s anxiety disorder. The Board notes that unspecified anxiety disorder and PTSD are separate diagnostic entities under the Fourth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM- IV). The claim for service connection for PTSD is referred to the RO for further action as necessary. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has mild social and industrial impairment and is entitled to an increased evaluation for his service connected anxiety condition. He argues that his symptoms limit his activities such as standing in line, going to stores and driving in city traffic. The veteran also argues that his symptoms cause stress, confusion, irritability, sleeping problems, depression, tension and increased frustration, which also impair his ability to perform activities. He contends that he is not compensated adequately by the current disability rating. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), 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 the preponderance of the evidence is against the claim for a rating in excess of 10 percent for service-connected anxiety disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran’s appeal has been obtained. 2. The veteran’s anxiety disorder is manifested by mild symptoms, occurring in specific situations, ameliorated by use of Prozac. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for service-connected anxiety disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.130, Diagnostic Codes 9400, 9413 (1998); 38 C.F.R. § 4.132, Diagnostic Codes 9400, 9410 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran filed an initial claim for VA benefits for service connection for a nervous condition in October 1944. The veteran’s service medical records indicated that in July 1944 he was referred to the psychiatric unit because of complaints of headaches, dizziness and weakness. It was noted that he had been in the Navy for two years with no combat duties and that he was a chronic complainer. The veteran was described as unstable, poorly driven and motivated, and unable to perform duties. The veteran indicated a history of nervousness, tense feelings, insomnia and disturbing dreams. The examiner indicated a diagnosis of emotional instability and stated that the veteran was an unstable hypochondriacal person, who was tense and apprehensive with multiple complaints of a disabling nature. The veteran was admitted to the U.S. Naval Hospital at Newport, Rhode Island, in August 1944 with a diagnosis of constitutional psycho-state and emotional instability. The examiner indicated that the veteran was dull, apathetic, and disinterested with a flat affect. The veteran’s wife indicated that his problems began when he was overseas and had to stand all day on a cement floor. There is a notation in the service medical records of hospitalization or treatment for cold injuries suffered upon the sinking of a ship. A report of medical survey, dated in September 1944, indicated that the veteran was admitted to the sick list in July 1944 with an undetermined diagnosis and complaints of headache, dizziness, and a burning sensation in the rectum and urethra. The veteran was transferred to the hospital in August 1944. Psychiatric examination, at that time revealed a tense, anxious and sad looking patient, who was preoccupied with multiple somatic complaints, all of which he felt were incapacitating. Judgment and insight were noted as lacking. A diagnosis of unclassified psychoneurosis was indicated. The medical board indicated that this disability was not incurred in the line of duty and existed prior to enlistment, but was aggravated by service. By rating decision of October 1944, the RO granted service connection for the following: 1) Unclassified psychoneurosis, with a 30 percent evaluation; 2) Varicocele, with a noncompensable evaluation; and 3) Mild chronic prostatitis, with a noncompensable evaluation. A VA psychiatric examination was conducted on July 16, 1948. The examiner noted complaints of stomach trouble. He noted that the veteran appeared timid, shy, tense, and anxious. The veteran denied any special worries and indicated that he had no difficulty getting along with others. The examiner indicated that the veteran was somewhat preoccupied with his physical condition. He provided a diagnosis of mild chronic anxiety reaction manifested by periodic stomach disorder. Moderate incapacity was noted with no external precipitating factor. A second VA psychiatric examination was conducted on July 28, 1948. The examiner noted that the veteran was not unduly restless, nor displayed undue emotion. He indicated that the veteran evaded some questions and hedged about others. No evidence of hallucinations was noted. The veteran indicated complaints of recurrent stomach pain, but denied any depression or crying. The examiner noted the veteran’s service history of physical complaints with no objective evidence. At that time, the examiner noted no tension or anxiety. The examiner indicated a diagnosis of mild chronic anxiety reaction manifested by burning in the stomach. Minimal incapacity was noted with an unknown precipitating stressor. By rating decision, dated in September 1948, the RO decreased the evaluation for service-connected psychoneurosis, anxiety state to 10 percent, effective November 7, 1948. A third VA examination was conducted in September 1949. The veteran complained of stomach trouble, constipation, sore throat, pain in the neck, burning in the eyes, and pain in the lower lumbar region. He stated that he had dizzy spells and became nervous at times. He reported participation in social and recreational activities, including fishing, movies, listening to the radio, and growing grass in the yard. The examiner indicated that the veteran was preoccupied with his various stomach complaints, particularly constipation. He indicated that the veteran had made a good social, economic and marital adjustment. The examiner indicated a diagnosis of chronic, moderate anxiety reaction manifested by epigastric distress, constipation, and psychosomatic complaints of pain in various parts of the body without organic basis. Moderate psychiatric incapacity was noted with no precipitating stressor. A fourth VA examination was conducted in October 1950. The veteran reported that he was stationed in Hawaii while in service, but had no combat duty. The examiner indicated that the veteran did not volunteer any information and his answers to questions were often rather vague. He noted that the veteran’s symptoms were ill defined. The veteran reported back pain and prostate problems, but stated that he no longer had stomach difficulties. The examiner noted no external evidence of tension. He indicated that the veteran’s condition appeared to have improved slightly since the previous examinations and the veteran was making as good adjustment now as he did prior to service. The examiner indicated a diagnosis of mild, chronic anxiety reaction manifested by preoccupation with ill-defined somatic symptoms. Mild psychiatric incapacity was noted with no external precipitating factor. By rating decision, dated in November 1950, the RO decreased the evaluation for the veteran’s service-connected anxiety state to a noncompensable evaluation, effective January 14, 1951. In September 1995, the veteran submitted a claim for an increased evaluation for his service-connected anxiety condition due to ongoing treatment at the VA Medical Center (MC). An outpatient treatment report from the VA mental health clinic, which dated in November 1995, indicated that the veteran’s complaints of abdominal pain had minimal underlying cause with some somatization of anxiety. The veteran was treated at the VAMC mental health clinic in February 1996. He was referred to the clinic shortly after receiving his denial of request for compensation. The veteran reported frustration and irritability if he had to wait in lines or wait for services, such as at the VAMC. The examiner noted that the veteran’s mood, affect, and psychomotor activity were within normal limits, and he appeared calm. The examiner indicated that the veteran did not have a syndrome of depression, anxiety or other mental disorder, but recommended that his frustration tolerance and irritability might be helped by medication. The veteran returned to the mental health clinic for a follow-up examination in March 1996. He complained of blurry vision related to his medications. The veteran stated that he was upset because he was not getting any compensation and indicated a plan to appeal. The examiner noted that the veteran was anxious at times. He indicated no diagnosis, but noted that the veteran was irritable and anxious, without having generalized anxiety disorder. An outpatient treatment record, dated in June 1996 indicated the veteran complained of pain to the arch of the right foot. The examiner noted that the veteran was very anxious with multiple concerns. The veteran reported for a follow-up visit with the mental health clinic on the same day. He indicated a lack of energy and stated that activities such as standing in line, going to stores and city traffic bothered him. The veteran stated that the condition was getting worse as he got older. The examiner noted that the veteran’s mood fluctuated and his sleep had decreased. He noted that a ship sinking during World War II was a traumatic event for the veteran and indicated an assessment of PTSD versus generalized anxiety disorder. A mental health clinic treatment record, dated in July 1996 indicated that the veteran reported efficacious results from increased Prozac prescription. Sleep, appetite and energy levels were adequate. Some episodes of mild anxiety were noted. A mental health clinic treatment record, dated in August 1996, indicated that the veteran complained of tension and decreased frustration tolerance. The examiner indicated that the veteran’s mood, affect, and psychomotor activities appeared within normal limits. He indicated impressions of depression and anxiety. A fifth VA examination was conducted in September 1996. The veteran indicated complaints of stress, confusion, irritability, upset stomach, dizzy spells, sleeping problems, blurred vision, constipation, depression, and tension. He indicated that his daily routine must always be the same or he would become stressed out and confused. The examiner indicated review of the claims file. The veteran reported that, while in service, a ship he served on, along with 13,000 other troops, sunk as it was returning from overseas. The veteran indicated that the ship had gotten off course during a severe storm and ran into obstacles in the ocean. He indicated that he was frozen from the waist down and spent three months in the Newport, Rhode Island, Naval Hospital. The veteran reported that he was discharged from the service upon discharge from the hospital. The veteran indicated that, since that time, he has had problems with his nerves. The veteran reported inability to sleep well, disturbing dreams, irritability, and intolerance for loud noises or crowds. He indicated that he experienced a lot of anxiety if his daily routine was changed and will often manifest an upset stomach, blurred vision, dizziness and increased blood pressure. He stated that he avoided certain activities because of his anxiety, specifically, going out to eat with his wife. The examiner noted that the veteran’s affect and speech patterns were normal and appropriate. He indicated a diagnosis of not otherwise specified anxiety disorder. By rating decision in December 1996, the veteran’s evaluation for service-connected anxiety disorder was increased to 10 percent, effective September 27, 1995. The veteran returned to the VAMC mental health clinic in March 1997 because he had run out of Prozac and was experiencing decreased frustration tolerance, insomnia and anxiety. The examiner indicated an impression of subsyndromal dysthymia/anxiety and re-prescribed Prozac. A VAMC mental health clinic report, dated in September 1997, indicated an impression of subsyndromal anxiety with decreased frustration tolerance and sleep disturbance, which was ameliorated by Prozac. A sixth VA examination for mental disorders was conducted in April 1998. The examiner noted review of the claims file. He indicated that the veteran’s psychiatric symptoms have increased over the past three-to-four months secondary to his son’s being involved in a car accident. The examiner indicated that the veteran’s psychiatric symptoms limit him from going to places where he has to stand in line, but otherwise, do not impair him socially. The veteran reported disturbing dreams about many things including combat-related dreams. He indicated that he hated to stand in line and he experienced shortness of breath, trembling in his legs, nausea, and dizziness at those times. He reported similar symptoms when forced to do something, such as cutting the lawn, that he does not want to do. The veteran stated that he had friends and was involved in some social activities. The examiner indicated that, as questioning became more directive and rapid, the veteran became more nervous and anxious. He noted no impairment of thought process, no delusions or hallucinations, no inappropriate behavior, no suicidal or homicidal thoughts or ideations, no memory loss or impairment, no obsessive or ritualistic behavior, which interfered with routine activities, no impaired impulse control, and no severe depression. He further noted that the veteran’s ability to maintain minimal personal hygiene and basic activities of daily living and speech patterns were normal. The examiner indicated that any panic attacks have no effect on independent functioning. The examiner indicated a diagnosis of not otherwise specified anxiety disorder and a global assessment of function (GAF) score of 69, based on the fact that the veteran avoided certain activities, such as going out to eat with his wife or standing in lines. II. Analysis In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The claims folder contains all available service medical records and the RO has obtained VA medical records identified by the veteran. The veteran underwent VA compensation examinations in September 1996 and April 1998 and these reports have been obtained. The veteran has not identified additional relevant evidence in support of his claim, which has not been requested or obtained. In the instant case, no further development is required in order to comply with VA's duty to assist mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (1998). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1998). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2, which require the evaluation of the complete medical history of the veteran’s condition. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (1998). All benefit of the doubt will be resolved in the veteran’s favor. 38 C.F.R. § 4.3 (1998). The Board notes that effective November 7, 1996, during the pendency of this appeal, the Schedule, 38 C.F.R. Part 4, was amended with regard to rating anxiety disorders. 61 Fed. Reg. 52695 (October. 8, 1996) (codified at 38 C.F.R. § 4.130). Because the veteran’s claim was filed before the regulatory change occurred, he is entitled to application of the version most favorable to him. See Karnas v. Derwinski, 1 Vet. App. 308, 311 (1991). In the instant case, the RO provided the veteran notice of the revised regulations in the February 1997 supplemental statement of the case. Thus, the Board finds that it may proceed with a decision on the merits of the veteran’s claim, with consideration of the original and revised regulations, without prejudice to the veteran. See Bernard v Brown, 4 Vet. App. 384, 393-394 (1993). Under the old Schedule, an evaluation of 30 percent is warranted for definite impairment in the ability to establish or maintain effective and wholesome relationships with people, with psychoneurotic symptoms resulting in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. A 10 percent evaluation is warranted for symptoms less than the criteria for the 30 percent evaluation, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment. 38 C.F.R. § 4.132, Diagnostic Codes 9400, 9410 (1996). The regulation notes that social impairment per se will not be used as the sole basis for any specific evaluation, but is of value only in substantiating the degree of disability based on all of the findings. 38 C.F.R. § 4.132, Note (1) (1996). The current Schedule provides a 30 percent evaluation for generalized anxiety disorder and not otherwise specified anxiety disorder 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, and mild memory loss. A 10 percent evaluation is warranted for occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Codes 9400, 9410 (1998). The nomenclature employed in the Schedule is based upon the DSM-IV. 38 C.F.R. § 4.130. GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." DSM-IV, pp.37-48. A 61-70 rating indicates, “Some mild symptoms or some difficulty in social occupational, or school functioning, but generally functioning pretty well, with some meaningful interpersonal relationships.” Id. In the instant case, the veteran’s most recent VA examination, in April 1998, indicated a GAF rating of 69. This indicates mild symptoms, while continuing to function well. The examiner indicated no reduction in initiative, flexibility, efficiency or reliability, which would produce industrial impairment. Under the old Schedule, a 30 percent evaluation is warranted for definite industrial impairment and impairment of ability to establish relationships with others. The medical evidence of record indicates that the veteran’s symptoms more closely approximate the criteria for a 10 percent evaluation. The examiner indicated mild symptoms with impairment only in specified situations where the veteran has to stand in lines. This is also consistent with the findings during the veteran’s outpatient treatment. Some episodes of mild anxiety were noted in July 1996 with adequate sleep, appetite and energy. In August 1996, the veteran’s mood and affect were within normal limits. In March 1997, the examiner indicated an impression of subsyndromal dysthymia/anxiety and noted some reports of insomnia and anxiety. A similar finding was noted again in September 1997. At that time the examiner noted that the veteran’s symptoms were ameliorated by use of Prozac. An earlier VA examination, in September 1996, also indicated that the veteran’s affect was normal and appropriate, although the veteran reported insomnia, irritability and anxiety. None of the examiners indicated any definite industrial impairment or inability to establish relationships with other people. In fact, the VA examiner in April 1998, noted that the veteran had friends and was involved in some social activities. The opinions and assessments by the VA examiners in the September 1996 and April 1998 VA compensation reports are entitled to significant probative value in this case. These examiners had an opportunity to review the entire claims folder. These examiners also performed independent medical assessments of the veteran’s overall psychiatric impairment. These examiners are in the best position to render a well- informed assessment of the overall social and industrial impairment caused by the veteran’s service-connected psychiatric disorder. Under the current schedule, the medical evidence of record indicates that the veteran’s symptoms more closely approximate the criteria for a 10 percent evaluation. The veteran’s outpatient treatment records indicate that the use of Prozac ameliorates his symptoms. In March 1997, the veteran specifically indicated that without the medication his frustration tolerance decreased. The GAF rating indicated in the April 1998 VA examination indicates mild symptoms with some difficulty, but generally functioning pretty well. At that time the VA examiner indicated that the veteran’s panic attacks do not have an effect on independent functioning and his psychiatric symptoms limit him only in certain situations, where he has to stand in line. Although the veteran’s service records indicate he was not involved in combat, he complained of some combat-related dreams. Again, the veteran’s outpatient treatment records are consistent with the findings of the VA examiner. Treatment records from February 1996 indicate that the veteran’s mood and affect were within normal limits and that the veteran did not have an anxiety or depression syndrome. In addition, it was noted at that time that medication might alleviate the veteran’s symptoms. One month later, treatment records indicated that the veteran was upset due to denial of compensation. In July 1996, positive results from the use of Prozac were reported and only mild anxiety noted. No diagnosis of an anxiety disorder was given at that time. The medical evidence of record indicates mild symptoms only during periods of significant stress and that such symptoms are controlled by continuous medication. The evidence is not evenly balanced and the criteria for an evaluation in excess of 10 percent for service-connected anxiety disorder have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Codes 9400, 9413; 38 C.F.R. § 4.132, Diagnostic Codes 9400, 9410. ORDER Entitlement to an increased evaluation for service-connected anxiety disorder is denied. RICHARD E. COPPOLA Acting Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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, 102 Stat. 4105, 4122 (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. - 2 -