Citation Nr: 0315200 Decision Date: 07/09/03 Archive Date: 07/17/03 DOCKET NO. 99-05 297 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an assignment of a higher initial disability rating for service-connected claustrophobia, currently rated as 50 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Joseph A. Rose, Associate Counsel INTRODUCTION The veteran had active duty service from May 1943 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1998 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in December 1998, a statement of the case was issued in March 1999, and a substantive appeal was received in June 1999. FINDING OF FACT The veteran's service-connected claustrophobia is manifested by subjective complaints of difficulty sleeping, attempted suicide, inability to function, and poor memory; clinical findings demonstrate symptoms of disorganization and disorientation, inability to concentrate, poor memory, and severe impairment of interpersonal and occupational relations. CONCLUSION OF LAW The criteria for entitlement to a disability rating of 100 percent for the veteran's service-connected claustrophobia have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.130 and Code 9403 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION Analysis In June 1985, the RO denied the veteran's claim of service connection for claustrophobia. The veteran's request to reopen his claim of service connection for claustrophobia was denied in May 1988. The veteran did not initiate a timely appeal and therefore, the May 1988 rating decision was final. In March 1991, the veteran filed another request to reopen his claim of service connection for claustrophobia. In a January 1997 Board determination, the veteran's service connection claim was reopened and remanded for further development. In October 1998, the RO granted service connection for claustrophobia and assigned a 50 percent disability rating, effective March 1991. The present appeal involves the veteran's claim that the severity of his service-connected claustrophobia warrants a higher initial disability rating. Disability ratings are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Since the veteran is appealing the original assignment of a disability rating following an award of service connection, the severity of his claustrophobia is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The veteran's service-connected claustrophobia has been rated by the RO under the provisions of Diagnostic Code 9403. Under this regulatory provision, a rating of 50 is warranted for 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. 38 C.F.R. Part 4, including § 4.130 and Code 9403. A 70 percent rating is assigned for 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 which 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 work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is assigned for 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. Id. Upon review, VA examination report in July 1998 shows that the veteran complained of being afraid of enclosed places. He always avoided going to any place that did not have any windows. If he is in a place that doesn't have any window, he cannot breath. He feels that he is going to die or "go crazy." On examination, the veteran appeared his stated age. He came to the office initially, and then when he realized that it did not have any windows, he refused to stay inside and went outside and said that he could not see the examiner since there were no windows in the hallway leading to the office. The examiner performed the examination outside in the area surrounding the office. Examination revealed that the veteran was extremely anxious. His affect was restricted. His speech was spontaneous. The rate, volume, and tone were normal. Thought process was characterized by some tangentiality. The veteran denied hallucinations. He was not delusional or suicidal. Insight was impaired, but judgment was fair. In a September 1998 addendum to the July 1998 examination, the examiner indicated that the veteran had a specific phobia, namely claustrophobia, and that this was related to his military service. VA examination in November 2000 revealed that the veteran again refused to be interviewed in an office. When he goes downstairs he is worried about the absence of windows. The veteran shows himself to be markedly dysfluent with a great deal of stammering. The veteran's memory is impaired to the extent that he does not know his age or his Social Security number. The veteran is an unreliable informant and the interview is marked by lapses of speaking to himself and carrying on in a dialogue, and by his concern that he does not make a bad impression to the examiner. The examiner emphasized that the veteran was disoriented and disorganized, and it was actually his inability to give an interview that helped to make a diagnosis in this instance. The veteran claimed that his symptoms were worsening. He has difficulty sleeping and has to go outside at night and get some air. He cannot stand himself and tried to kill himself with pills. He says that he screams all night, that he has to get up at night and leave the lights on. He cannot function at all. He also claims that his memory is very poor. Examination demonstrated that the veteran was disorganized and disoriented. He did not know that there was a presidential election the day after the examination, does not know his name, and does not know his Social Security number. The veteran had no memory for any recent or remote events and is unable to remember at all digits, facts, items, objects, or animals. He cannot really be given an examination for PTSD because he rambles and his thoughts are not sequential or organized. The veteran is probably not hallucinatory and shows no flattening of affect. He is unable to have judgment or concentration. He is unable to remember the details of his medical condition, except that he does have IM injections to give himself for diabetes mellitus. In summary, the examiner found that the veteran is severely impaired in interpersonal and occupational relations. It is not felt that the veteran is malingering. The veteran may not be capable of managing benefits awarded to him and probably a relative should be given the money. The veteran is considered severely handicapped by his symptoms and does have a service-connected claustrophobia. There are reduced reliability and productivity deficiencies in all areas and total occupational impairment with a very low likelihood that this will ever change. His low Global Assessment of Functioning (GAF) score is 30 indicates the degree of his disorder. Based upon the evidence summarized above, particularly the clinical findings from the November 2000 VA examination report, the Board finds that the clinical findings do in fact demonstrate that the veteran's psychiatric disability picture more nearly approximates the criteria for the 100 percent rating. Veterans Claims Assistance Act of 2000 (VCAA) The Board notes that on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This newly enacted legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of the VCAA. See 66 Fed. Reg. 45,620 (August 29, 2001) (now codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). This newly enacted legislation provides, among other things, for notice and assistance to claimants under certain circumstances. Where laws or regulations change after a claim has been filed or reopened and before the administrative or judicial process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or has permitted the Secretary of Veterans Affairs to do otherwise and the Secretary has done so. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). While a review of the record appears to show deficiency in complying with the VCAA notice provisions in his claim for entitlement to a higher initial disability rating for service-connected claustrophobia, there is no prejudice to the veteran here as his claim was granted in full. ORDER The criteria for entitlement to a disability rating of 100 percent for the veteran's service-connected claustrophobia is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ WAYNE M. BRAEUER 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 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.