Citation Nr: 9924624 Decision Date: 08/30/99 Archive Date: 09/08/99 DOCKET NO. 96-12 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a higher rating for dysthymic disorder with depression, initially rated as 30 percent disabling from July 1992 and 50 percent disabling from January 1994. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Associate Counsel INTRODUCTION The veteran had active service from August 1967 TO March 1971 and from November 1975 to October 1987. In January 1993, the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania established service connection for depression, characterized as dysthymic disorder and assigned a 10 percent rating under Diagnostic Code 9405. The veteran submitted a notice of disagreement with the rating assigned, asking for a 100 percent rating. In November 1993, the RO assigned a 30 percent rating for a nervous condition. The RO also notified the veteran that his appeal was considered withdrawn unless he indicated further disagreement. The record does not reveal that the veteran indicated any disagreement with that decision. Nevertheless, unilateral withdrawal of an appeal cannot be performed by an RO where the rating decision has granted less than the entire benefit sought. AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the appeal continues from the January 1993 rating decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable determination of this appeal has been obtained by the RO. 2. The veteran's service-connected dysthymic and depressive symptoms are manifested by minimal insight, questionable judgment, possible paranoid delusions, mood congruent psychotic features, hypomanic episodes, and suicidal ideation resulting in the inability to obtain or retain employment. CONCLUSION OF LAW The criteria for a 100 percent schedular evaluation for dysthymic disorder with depression are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9433 (effective as of November 7, 1996); 38 C.F.R. §§ 4.16(c), 4.132, Diagnostic Code 9433 (effective prior to November 7, 1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim for an increased rating is capable of substantiation and is therefore well grounded within the meaning of 38 U.S.C.A. § 5107(a). A claim that a service-connected condition has become more severe is well grounded where the claimant asserts that a higher rating is justified due to an increase in severity. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-32 (1992). The Board also is satisfied that all relevant facts have been properly developed and no further assistance to the veteran is required in order to comply with the duty to assist. Id. Factual Background In July 1992, the veteran applied for service connection for depression and for other health problems. He reported that since active service he had received private medical care for depression at Oyster Point Family Practice. In August 1992, the veteran underwent VA mental evaluation. During the examination, the veteran reported that he had twice attempted suicide and that he had attempted to wash a superior officer overboard the aircraft carrier during active naval service. He also reported three failed marriages. He said that he worked as a technician in a fishery but had difficulty communicating with people. He admitted to a history of drug and alcohol abuse. He currently took antidepressants. The examiner reported that the veteran was alert, oriented, cordial, relevant, coherent, and had adequate and appropriate affect. There were no overt signs of psychosis, suicidal or homicidal contemplation and he seemed to be responding well to mental health treatment. The diagnoses were dysthymic disorder, by history; and, mixed personality disorder, rule out borderline narcissistic and passive/aggressive traits. . Private treatment reports from Oyster Point Family Practice indicate that the veteran received treatment for several health problems from 1989 to 1991. A January 1989 report notes that the veteran had been plagued with revenge thoughts against another sailor on an aircraft carrier. Other reports note depression, mood swings, and treatment with Prozac. As noted in the introduction, in January 1993, the RO established service connection for depression, characterized as dysthymic disorder and assigned a 10 percent rating under Diagnostic Code 9405. In his June 1993 notice of disagreement, the veteran reported that he was hospitalized from by VA from June to July 1992 and had received follow-up outpatient care since then. He reported that he was privately hospitalized at Centre Community Hospital (Centre) from February to March 1993 and again during May 1993 and was currently under the care of a Dr. Carlos Santiago. He indicated that he had not been able to work since Spring 1992 and that he separated from his wife because of his problems. In July 1993, the RO sent development letters to Centre, to Dr. Santiago, and to Lawrence T. Clayton and Counseling Associates, Inc. An August 1993 report from Lawrence T. Clayton and Counseling Associates, Inc. indicates that the veteran had received outpatient psychotherapy since March 1993 after his discharge from Centre. The report indicated that the veteran also underwent two other hospitalizations at Centre. The report notes that the diagnoses were major depression, recurrent, moderate; and alcohol abuse. The veteran underwent VA mental evaluation in September 1993. The veteran reported depression and insomnia since active service. The examiner found the veteran to be alert, oriented, coherent, relevant, and depressed with an anxious mood. He was currently taking Paxil, Doxepin, and Ambien and was attending weekly counseling sessions. The diagnosis was major depression, nonpsychotic, responding to treatment and counseling. The RO subsequently received hospital reports from Centre. The reports note hospitalization during February and March 1993, again in May 1993, and again in June 1993. The February-March 1993 Centre report indicates that the veteran was admitted to the emergency room as a result of an intentional drug overdose and suicide attempt. He reported that his wife and child had just left him. He was reported angry and provocative during much of his hospitalization. He was discharged in an improved condition with medication in March 1993. The veteran was re-hospitalized in May 1993 for a recurrence of major depression and suicidal ideation. He had apparently again taken an overdose of medication. During mental evaluation, he was tense, anxious, and depressed. His affect was appropriate and he was nonpsychotic. He admitted to suicidal ideation by overdosing. During treatment, he received Paxil, Ativan, Doxepin, and Dalmane. He was discharged with a prescription for Paxil, Ativan, Doxepin, and Dalmane, and Naprosyn. He was readmitted to Centre in June 1993 for exacerbation of symptoms and renewed threats of suicide. He was tense, anxious, and depressed and threatened suicides if jailed for recently violating a restraining order forbidding any contact with his son. The examiner felt that the veteran had recently used marijuana and alcohol. His Axis I discharge diagnoses in July 1993 were major depression, recurrent with melancholia; alcohol abuse; and, cannabis abuse. In November 1993, the RO received a letter from a Congressman indicating that the veteran desired an increased rating. The Congressman included a letter from the veteran wherein he requested that VA award him a 100 percent rating. He also indicated that he had received Social Security Administration (SSA) benefits since September 1993, but that this date should have been since September 1992. In November 1993, the RO assigned a 30 percent rating for a nervous condition, effective from July 2, 1992. The RO also notified the veteran that his appeal was considered withdrawn unless he indicated disagreement. In January 1994, the veteran submitted a VA Form 21-8940, Veteran's Application For Increased Compensation Based On Unemployability. In the application, the veteran indicated that he last worked in March 1992 but that he did not leave the job because of his disability. An April 1994 VA mental disorders examination report notes review of the medical history. The examiner noted that the veteran was tense, dysphoric, anxious, over-vigilant, and showed increased psychomotor activity. He was alert, oriented, coherent, relevant, and spontaneous. The diagnosis remained major depression, recurrent, non-psychotic, and treated by medications and counseling. In a September 1994 rating decision, the RO denied a claim for an increased rating for a nervous condition and also denied a claim for a total disability rating for compensation based on unemployability of the individual. In September 1995, the veteran reported that he currently received SSA disability and that he currently took Lithium Carbonate, Paxil, Doxepin, Ambien, and Lomotil. He reported side effects from those medications. He included a letter from Dr. Santiago, dated in September 1995, indicating that the veteran's current diagnoses were major depression, recurrent, with melancholia; alcohol abuse; and cannabis abuse. Dr. Santiago reported that the veteran was chronically depressed and had periods of acute exacerbation and a fragile adjustment. Dr. Santiago stated "In my opinion, he is, at this time, totally incapacitated for gainful employment." In April 1996, the veteran testified before an RO hearing officer that he was hospitalized in 1993 because his symptoms had gotten worse and he attempted suicide. He reported that he still saw Dr. Santiago about once every two weeks. He testified that in the last few months he had had suicidal thoughts on several occasions. He last worked a couple of years earlier. He testified that he had tried self- employment but that was not successful. He testified that he had short-term memory problems and concentration problems. He testified his depression caused relationship problems with his girlfriend due to such things as memory loss caused by his medication. He said that she said he was not dependable. He testified that he currently took Paxil, Doxepin, and lithium. He said that the lithium caused thyroid problems so he had to take thyroid medicine too. He said that he currently took about 10 pills per day. He testified that his last job was counting fish but that he could not handle the job. He recalled that his employer told him that he was being laid off, but he noticed that they kept hiring people after he left. He concluded that he had been let go because he could not do the job. In June 1996, the RO received numerous records and a disability determination from SSA. In a July 1993 SSA decision, the veteran was determined to be disabled from working beginning in March 1992. The primary diagnosis was major depression. A secondary diagnosis of personality disorder was also given. Supporting documents for the decision include a January 1993 VA outpatient treatment report noting that the veteran might present as angry, moody, and inappropriate, that difficulty with the law was a foreseeable possibility, that his depression could, at times, be profound, and he was seen as a suicide risk. Another report included in the veteran's SSA file is a June 1993 VA psychological examination report that notes that the veteran had many problems in relating to others including understanding their communications because of his idiosyncratic interpretations which have paranoid and competitive aspects. The examiner concluded that since the veteran was coping poorly, his depression might be worsening. His prognosis was poor. The examiner felt that the veteran might need assistance handling his own funds because of his impulsiveness. The diagnosis on Axis I was major depression, recurrent, moderate. An Axis II diagnosis of personality disorder, not otherwise specified, was also given. SSA also supplied copies of other VA and private treatment reports. Of note is a medical assessment form dated in March 1993 and signed by Dr. Santiago wherein he checked a box that indicates that the veteran was temporarily incapacitated and that the incapacity precluded employment. On that form, Dr. Santiago annotated that the veteran was presently depressed, was incapacitated from working, and noted that with treatment the veteran should be able to resume work within a few months. A February 1997 hearing officer decision and supplemental statement of the case indicates that Dr. Santiago had not responded to the RO's request for treatment records. The decision also indicates consideration of the evidence under the revised rating schedule. A November 1997 VA mental disorders examination report notes a review of the veteran's medical history. The examiner noted that the veteran had lost his job in 1992 when he angered a faculty member on the research project where he worked. The examiner felt that the veteran was chronically depressed with periods of acute exacerbation. The veteran appeared to be unable to explain why he could not work, but he did mention impaired concentration and difficulty focusing. The examiner reported that the veteran was alert, oriented, in good contact with reality and showed no signs of psychosis. His speech was normal, but he lacked insight into his problems. His mood was mild to moderately dysphoric and his affect was somewhat stifled and restricted, but not blunted or flattened. Hypersensitivity and inability to control his anger were noted. The examiner felt that the veteran's major depressive disorder was moderate in intensity. His substance abuse appeared to be in partial remission. The examiner remarked that the veteran was definitely socially and occupationally impaired but also felt that he was not permanently and totally disabled from any type of employment. The examiner felt that the veteran was not making enough effort to find work. In February 1998, the RO received VA outpatient reports reflecting therapy at various times during 1996 to 1998. Of note is a November 1997 report indicating that the veteran's girlfriend had called in to report an acute change in the veteran's behavior. He had apparently been acting irrationally and she felt that he might be dangerous. The examiner requested that the veteran return to the clinic. Upon arrival at the clinic, the veteran appeared to be extremely uncomfortable and moved with a lot of pain due to a recent fall that broke several ribs. He acknowledged tremendous difficulty with his girlfriend. The veteran declined admission to the hospital at that time. He reported that he was employed part-time and might get enough money from that job to buy a bus ticket to see his family. The examiner felt that the veteran was not acutely suicidal nor did he pose an immediate danger to himself. The examiner did feel, however, that the veteran's poor judgment, impulsive behavior, and history of substance abuse made his a chronic risk for self-injury. An October 1998 VA mental disorders examination report notes that the examiner reviewed the claims file. The examiner noted that the veteran attended on-going therapy sessions and took psychiatric medication. The examiner also noted a current diagnosis of bipolar affective disorder with polysubstance abuse. The veteran reported that he changed therapists because he did not get along with the last one. He felt that his symptoms had worsened in the recent four years although he did not know why. He reported several suicide attempts in the recent four years. He reported rapid cycling between episodes of mania and depression. He admitted that he had killed cats in bouts of anger explaining that when aggravated, he sometimes heard command hallucinations telling him to kill the cats. The examiner noted the presence of some paranoid delusion. The veteran's insight was felt to be quite minimal and his judgment was questionable. The diagnoses on Axis I were major depression, recurrent with mood congruent psychotic features and hypomanic episodes; alcohol abuse in partial remission; marijuana abuse, ongoing; and, cocaine abuse, in remission. The examiner assigned a Global Assessment of Functioning (GAF) score of 50 [according to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, a score of 41 to 50 is indicative of serious symptoms, or serious difficulty in social, occupational, or school functioning, i.e., no friends, unable to keep a job. See 38 C.F.R. § 4.125 (1998)]. The examiner reviewed the various diagnoses given and noted that it would be difficult to parcel out the different aspects of his psychiatric disorder from his personality disorder and substance abuse. The examiner felt that bipolar affective disorder could not be ruled out. All of the above seemed to contribute to generally poor ability to function, according to the examiner. He was deemed competent for VA purposes. In March 1999, the RO assigned a 50 percent rating, effective January 1994, for dysthymic disorder with depression. II. Legal Analysis Disability evaluations are determined by comparing present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1998). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (1998). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. See 38 C.F.R. § 4.3 (1998). The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. 4.1 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). 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. The regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that during the pendency of the veteran's appeal, the regulation pertaining to evaluation of mental disorders was amended effective November 7, 1996. See 61 Fed. Reg. 52695-52702 (1996) (now codified at 38 C.F.R. §§ 4.125- 4.130 (1998)) (hereinafter referred to as the "revised criteria"). The United States Court of Appeals for Veteran Claims (Court) (known as the United States Court of Veterans Appeals prior to March 1, 1999) has held that "where the law or regulation changes after a claim has been filed or reopened but before the ... judicial appeal process has been concluded, the version most favorable to appellant should and ... will apply unless Congress provided otherwise or permitted the Secretary of Veterans Affairs (Secretary) to do otherwise and the Secretary did so." See Karnas v. Derwinski, 1 Vet. App. 308, 312- 313 (1991). In that decision, the Court noted that this view comports with the general thrust of the duty-to-assist and the benefit-of-the- doubt doctrines. Id. Under the former provisions, the evaluation of mental disorders will be rated as follows: A 10 percent evaluation is warranted for dysthymic disorder when there is emotional tension or other evidence of anxiety productive of mild social and industrial impairment. A 30 percent evaluation requires definite impairment in the ability to establish or maintain effective and wholesome relationships with people and psychoneurotic symptoms resulting in such reductions in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. A 50 percent rating requires that the ability to establish or maintain effective or favorable relationships with people be considerably impaired and that reliability, flexibility, and efficiency levels be so reduced by reason of psychoneurotic symptoms as to result in considerable industrial impairment. A 70 percent evaluation is warranted where the ability to establish or maintain effective or favorable relationships with people is severely impaired and the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain and 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 and 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 veteran must be demonstrably unable to obtain or retain employment. See 38 C.F.R. § 4.132, Diagnostic Code 9433, effective prior to Nov. 7, 1996. Under the revised general rating formula for the evaluation of mental disorders, 38 C.F.R. § 4.130, Code 9433, effective November 7, 1996, dysthymic disorder will be rated as follows: 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.-100 percent 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 that 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.-70 percent 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. - 50 percent 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).-30 percent The veteran's dysthymic disorder with depression is currently manifested by minimal insight, questionable judgment, possible paranoid delusion, mood congruent psychotic features, hypomanic episodes, suicidal ideation and inability to obtain or retain employment. The record shows that the veteran may have part-time employment. His recent GAF score is 50. Inasmuch as the recent GAF score of 50 does not conclusively demonstrate the level of impairment, the Board must also look at other factors. Of special note are Dr. Santiago's two medical opinions that the veteran has been unable to work and the SSA decision to that effect. Under the former criteria, demonstrable inability to obtain or retain employment itself warrants a 100 percent schedular rating (38 C.F.R. § 4.16(c) (effective prior to November 7, 1996)), and the Board finds that this has been demonstrated throughout the appeal period. Dr. Santiago reported in 1993 and again in 1995 that the veteran was unemployable because of his psychiatric disability. This weighs rather heavily in favor of the veteran's claim. The SSA records indicate that the veteran has been disabled from working during the appeal period. The U.S. Court of Appeals for Veterans Claims (then called the U.S. Court of Veterans Appeals) has held that although SSA decisions with regard to unemployability are not controlling for purposes of VA adjudication, an SSA decision is pertinent to a determination of the appellant's ability to engage in substantially gainful employment. See Martin v. Brown, 4 Vet. App. 136, 140 (1993). The Board further notes that substantially gainful employment has been defined as that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides or a "living wage." See Beatty v. Brown, 6 Vet. App. 532 (1994); Ferraro v. Derwinski, 1 Vet. App. 326 (1991). Moreover, marginal employment shall not be considered substantially gainful employment. See 38 C.F.R. § 4.16(a) (1998). In this regard, the veteran's part-time employment is not considered to be substantially gainful employment. The Board finds, therefore, that the SSA disability decision is also persuasive evidence that the veteran has not been employable during the appeal period. Incidentally, neither supplemental statements of the case issued since the RO received Dr. Santiago's reports and the SSA documents contain any mention of the SSA disability determination or Dr. Santiago's opinion on the veteran's employability. The Board must therefore question whether the VA examiner who assigned the GAF score of 50 was fully aware of these reports (although he did mention review of the claims file). In any event, the benefit of the doubt has been afforded the veteran. Under the former criteria, the veteran's symptoms do not demonstrate virtual isolation in the community or gross repudiation of reality. Nor have the recent VA examiners felt that the veteran cannot work; however, because the private physician feels that the veteran cannot work at present and there is medical evidence of psychotic features and suicidal ideation, the Board finds that the evidence on employability is in relative equipoise. Resolving any remaining doubt in this issue in favor of the veteran, the Board finds that the criteria for a 100 percent rating for dysthymic disorder with depression under the former criteria were met on the date of claim (July 1992). See 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). Under the revised rating criteria, 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, warrants a 100 percent rating. The veteran appears to meet these criteria. Although at his recent VA examination he did not exhibit grossly inappropriate behavior, and his GAF score of 50 does not conclusively indicate total occupation impairment, he does appear to have persistent delusions or hallucination and the medical evidence suggests that he poses a persistent danger of hurting self or others. In addition, he testified concerning his difficulty working at any job, even self-employment. After consideration of all the evidence, the Board finds that the veteran's dysthymic disorder symptoms approximate the criteria for a 100 percent schedular rating under either the former or the revised criteria of Diagnostic Code 9433. ORDER Subject to the laws and regulations governing the payment of monetary benefits, an increased evaluation of 100 percent for dysthymic disorder with depression is granted. J. E. Day Member, Board of Veterans' Appeals