Citation Nr: 0813441 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 04-19 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased rating for generalized anxiety disorder, currently rated 50 percent. 2. Whether the veteran is competent for purposes of disbursement of VA benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. R. Harryman, Counsel INTRODUCTION The veteran had active duty from August 1943 to March 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. For good cause shown - the veteran's advanced age - the Board advanced this case on the docket in November 2006. 38 U.S.C.A. § 7107(a) (West 2002); 38 C.F.R. § 20.900(c) (2007). The Board remanded the case in February 2007 for the RO to readjudicate the issues on appeal, considering the additional medical evidence that was received after the March 2004 statement of the case. The requested actions have been completed and the case is now before the Board for final appellate consideration. FINDINGS OF FACT 1. The veteran's generalized anxiety disorder does not cause occupational and social impairment with reduced reliability and productivity or deficiencies in most areas, and does not cause total occupational and social impairment. 2. The medical evidence of record shows that, due to his psychiatric disorders, his functional illiteracy, and his cognitive deficit, the veteran does not have the capacity to manage his affairs, including disbursement of funds, without limitation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for generalized anxiety disorder are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, and 4.130, Code 9400 (2007). 2. The veteran is incompetent for purposes of disbursement of VA benefits. 38 U.S.C.A. § 5107(a) (West 2002); 38 C.F.R. § 3.353 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Analysis A. Anxiety disorder The present appeal involves the veteran's claim that the severity of his service-connected generalized anxiety disorder warrants a higher disability rating. Disability evaluations 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 evaluations shall be applied, the higher evaluation 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. VA examiners in recent years have varied somewhat in the descriptions of their evaluations of the veteran. For instance, a clinic examiner in March 2000 stated that the veteran's affect was slightly inappropriate, that he had religious ideas of reference vs. delusions, and that his insight was limited, and a VA compensation examiner in December 2002 indicated that the veteran reported visual hallucinations, but denied delusions. In addition, the December 2002 examiner noted that his thought processes were tangential and difficult to follow; but a compensation examiner in August 2004 stated that there was no impairment in thought process or communication. However, no examiner has indicated that the veteran was not clean and neatly dressed or that he could not attend to his own activities of daily living. All examiners have stated that the veteran was completely oriented. Although some examiners have noted some memory deficit, any problem the veteran may have had with memory did not extend to remembering his own name or the names of family members. While one examiner did report that the veteran would become anxious during stressful activities, there is no evidence that he has any difficulty in adapting to such circumstances. Examiners have regularly reported that the veteran is friendly and cooperative; there is no evidence that he has any difficulty in establishing and maintaining effective relationships. Significantly, the August 2004 examiner report few abnormal psychiatric clinical findings at all, attributing most of the veteran's cognitive problems to his illiteracy, modest IQ, and poor fund of knowledge. No recent examiner has assigned a Global Assessment of Functioning (GAF) score of less than 50 for the service-connected anxiety disorder. In short, although there is some evidence that the veteran may occasionally meet one or two of the criteria for a higher rating for his generalized anxiety disorder, the medical evidence clearly shows that the manifestations of the veteran's anxiety disorder more nearly approximate the criteria required for a 50 percent rating. The Board finds that the veteran's generalized anxiety disorder does not cause occupational and social impairment with reduced reliability and productivity or deficiencies in most areas, and does not cause total occupational and social impairment. The Board notes that the December 2002 examiner listed diagnoses of generalized anxiety disorder, probable PTSD, and dementia of unknown etiology; he noted, however, that the dementia was not service-connected. Although the veteran's daughter has argued that the veteran's dementia (which the December 2002 examiner indicated provided significant impairment) should not be disassociated from his service- connected anxiety disorder, the August 2004 examiner specifically addressed that question and stated that the veteran clearly did not have PTSD and that his anxiety was mild, never interfering with his activities, relationships, or occupation. He also stated that, although the veteran appeared to be demented, he in fact had a life long problem with cognition which accounted for the appearance of dementia. The only psychiatric diagnosis assigned by the August 2004 examiner was mild generalized anxiety disorder for which he assigned a GAF score of 65. The August 2004 examiner also indicated that the veteran, who is currently 91 years old, retired when he was 62 or 63 when he could collect Social Security benefits. It was noted that the veteran was still active in church and enjoyed working in his yard. He had a good relationship with his wife and children, except for one son where the relationship is fair. Therefore, the Board concludes that the veteran's service- connected anxiety disorder has been manifest throughout the appeal period by symptoms and clinical findings indicative of no more than moderate psychiatric impairment warranting no more than a 50 percent rating under the provisions of Diagnostic Code 9400. Because a 50 percent rating is already in effect, an increased rating for the disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the current appeal. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). B. Competency The veteran is rated incompetent for VA benefits purposes, and claims that competency status should be restored. For VA purposes, a mentally incompetent person is one who, because of injury or disease, lacks the mental capacity to contract or to manage his affairs, including the disbursement of funds without limitation. 38 C.F.R. § 3.353(a). There is a presumption in favor of competency. Where reasonable doubt arises regarding a beneficiary's mental capacity to contract or to manage his affairs, including the disbursement of funds without limitation, such doubt will be resolved in favor of competency. 38 C.F.R. § 3.353(d). Unless the medical evidence is clear, convincing, and leaves no doubt as to the person's incompetency, VA will not make a determination of incompetency without a definite expression regarding the question by the responsible medical authorities. 38 C.F.R. § 3.353(c). Determinations as to incompetency should be based upon all evidence of record, and there should be a consistent relationship between the percentage of disability, facts relating to commitment or hospitalization, and the holding of incompetency. A longitudinal review of the record discloses that service connection has been in effect for a psychiatric disorder since 1947. A VA psychiatric examiner in December 1992 described the veteran's psychiatric manifestations and diagnosed mild to moderate generalized anxiety disorder and organic mental syndrome, and also listed a provisional diagnosis of undifferentiated schizophrenia. He commented that the veteran's competency was limited at that time. In March 2000, the veteran was seen in the VA clinic for psychiatric supportive therapy. The examiner noted the veteran's statement that his "mind is just gone, can not think of things, but denies being lost or confused on this visit. He complains of inability to remember individual's name, what things are and how they are used." The examiner noted that the veteran was "not overtly psychotic, but has religious ideas of references vs. delusions. His insight is limited." Finally, the examiner commented that the veteran was not capable of handling his personal affairs. In conjunction with the veteran's current claim for an increased rating for his psychiatric disability, a VA compensation examination was conducted in December 2002. That examiner noted that the veteran had visual hallucinations, but no delusions. His thought processes were very tangential and difficult to follow. He had difficulty performing basic calculations and couldn't interpret abstractions. The veteran appeared to have little short-term memory. The examiner pointed out that the veteran had a sixth grade education. Listing diagnoses of generalized anxiety disorder, probable PTSD, and dementia of unknown etiology, the examiner assigned GAF scores of 50 for the anxiety disorder, 50 for PTSD, and 25-30 for the dementia. That examiner did not specifically comment on the veteran's competency. Finally, another VA compensation examination was conducted in August 2004. That examiner's report went into considerably more detail about the veteran's psychiatric history and symptoms. The examiner noted few abnormal psychiatric manifestations - he indicated that the veteran's short- and long-term memory appeared slightly diminished, but he stated that that appeared to be life long. It was noted that the veteran had practically no education and could not read a sentence. His IQ was modest, but was within normal limits. The examiner stated that because of those facts, he appeared to be demented when in fact he had a life long problem with cognition and poor fund of knowledge. The veteran was able to state the approximate amounts of his VA disability and Social Security checks, but could not provide any information on outflow or obligations. The examiner stated that, given the veteran's illiterate status, his poor fund of knowledge, and inability to accurately provide data on his financial obligations, he was not capable of managing his financial affairs, and that his VA funds should continue to go to the veteran's daughter for supervision. Neither the veteran nor his daughter, who was appointed as his guardian, has furnished any competent medical information - or even any argument - indicating that the veteran is able to manage his financial affairs. 38 C.F.R. § 3.353(c); Sanders v. Brown, 9 Vet. App. 525 (1996). The evidence of record is clear, convincing, and leaves no doubt that the veteran is incompetent to handle disbursement of funds without limitation. As such, the Board finds that the veteran is incompetent for handling disbursement of funds for VA purposes. As the evidence overwhelmingly establishes the veteran's lack of competence to manage his VA funds, the benefit of the doubt doctrine does not apply, and the claim for restoration of competency for VA benefits purposes must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Sanders v. Principi, 17 Vet. App. 329 (2003). II. Duties to notify and to assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). For an increased-compensation claim, § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant's demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, at 43-44. Although the veteran was notified generally concerning what needed to be shown to support a higher disability evaluation, he was not given the specific notice required by Vazquez- Flores prior to the denial of his claims for increase. Nonetheless, the veteran and his daughter clearly discussed his psychiatric disability with recent VA examiners in the context of its effect on his employment and daily activities. Moreover, both the rating decision and the statement of the case and supplements thereto, as well as numerous letters from the RO in conformance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), that discussed the assignment of higher disability evaluations specifically informed him of the rating criteria that would be applied, and he had an opportunity to supply information or evidence concerning worsening or increase in severity of the disabilities at issue and the effect such worsening has on his employment and daily life. Thus, the Board concludes that the veteran, in this instance, was not prejudiced by the lack of specific notice required by Vazquez-Flores prior to adverse decisions that are the subject of this appeal. The law also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2007). This "duty to assist" ordinarily contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody. In this case, the Board finds that the duty to assist has been fulfilled. During the course of this appeal, the veteran has been afforded two VA compensation examinations, and VA treatment records covering the entire period of the appeal have been received. No further development action is necessary. ORDER An increased rating for generalized anxiety disorder, currently rated 50 percent, is denied. The veteran is incompetent for VA purposes; his appeal is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs