Citation Nr: 9827105 Decision Date: 09/10/98 Archive Date: 09/17/98 DOCKET NO. 97-13 324A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for psychoneurotic depression, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD C. Crowley, Associate Counsel INTRODUCTION The veteran’s served from April 1945 to February 1946. This appeal is before the Board of Veterans’ Appeals (Board) from a June 1996 rating decision of the St. Petersburg Florida, Regional Office (RO), that denied the veteran’s claim for entitlement to an increased evaluation for psychoneurotic depression. As a preliminary matter, the Board notes that claims other than those promulgated in the June 1996 rating decision have been submitted on the veteran’s behalf. First, the Paralyzed Veterans of America letter by Craig N. Bash, M.D. states that: it is more likely than not the small spurs noted in service were the start of this patient developing an osteoarthritis process of the dorsal spine that cannot be dissociated from the degenerative arthritis now causing her cervical and lumbar intervertebral disc degeneration in the absence of subsequent trauma to the spine. Second, the Informal Brief submitted in July 1998, on the veteran’s behalf argues that the 1946 rating decision which denied service-connection for the veteran’s asthma was clearly erroneous. In the alternative, the argument is made that additional evidence has been submitted sufficient to reopen the veteran’s claim for new and material evidence. Third, the July 1998 Informal Brief also appears to raise the issue of service connection for post traumatic stress disorder (PTSD). As a rating decision has not been promulgated as to any of these issues, they are referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the symptoms of her psychiatric disorder are more severe than currently evaluated. She specifically contends that the symptoms of this disorder prevent her from sleeping without medication, cause her to live isolated and alone and prevent her from developing relationships with others. 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 evidence warrants an increased evaluation of 50 percent, but no higher, for the veteran’s service-connected psychoneurotic depression. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran’s claim for an increased evaluation for psychoneurotic depression has been developed. 2. The veteran’s service-connected psychiatric disorder is manifested primarily by chronic depression, with despondency and nihilistic conversation, with depressed mood and affect; and results in difficulty in establishing and maintaining effective relationships with others. 3. The veteran’s service-connected psychiatric disorder is not manifested by depression that affects her ability to function independently, appropriately and effectively; or impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, or inability to establish and maintain effective relationships. CONCLUSION OF LAW The criteria for an increased evaluation of 50 percent, but no higher, for service-connected psychoneurotic depression, have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, § 4.130 diagnostic Code 9434 (1996), (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran’s claim is well grounded under 38 U.S.C.A. § 5107(a) (West 1991). She has not alleged that any records of probative value that may be obtained, and which have not already been sought by VA or associated with his claims folders, are available. The Board accordingly finds that the duty to assist the veteran, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. The veteran was originally awarded service connection for psychoneurotic depression, in June 1946, after discharge from active duty due to her psychiatric disorder. The RO initially assigned an 80 percent rating from February to August 1946, and a 50 percent rating, effective from August 1946. The 50 percent evaluation remained in effect until May 1952 when disability payments were discontinued for failure to report for a required VA medical examination. In January 1967, after notification of the veteran’s inpatient psychiatric treatment in 1966, the RO re-evaluated her service-connected psychoneurotic depression disorder and assigned a 10 percent disability evaluation thereto. The evaluation was subsequently increased from 10 to 30 percent by an April 1979 rating action (implementing an April 1979 Board decision that awarded a 30 percent evaluation). As indicated above, the veteran contends that the 30 percent rating currently in effect does not adequately reflect the severity of her disability. After a review of the record, the Board finds that the evidence does support her contention, and that an increased evaluation of 50 percent, but no higher, for psychoneurotic depression is warranted. The severity of a major depressive disorder is ascertained, for VA rating purposes, by application of the criteria set forth in diagnostic Code 9434 of VA’s Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1998) (Schedule). However, for appellate purposes, where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to the appellant should be applied unless provided otherwise by statute. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). Prior to November 7, 1996, a 30 percent rating contemplated a definite impairment in the ability to establish or maintain effective and positive relationships with people, and definite industrial impairment due to psychoneurotic symptoms reducing initiative, flexibility, efficiency and reliability levels. A 50 percent rating contemplated considerable impairment in the ability to establish or maintain effective or favorable relationships with people, and considerable industrial impairment due to psychoneurotic symptoms reducing the reliability, flexibility, and efficiency levels. A 70 percent rating contemplated a severely impaired ability to establish and maintain effective or favorable relationships with people, and psychoneurotic symptoms of such severity and persistence that the ability to obtain and retain employment was severely impaired. Under the criteria that have been in effect since November 7, 1996, the current 30 percent evaluation contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of in ability 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). A 50 percent evaluation contemplates 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 understanding complex commands; impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating contemplates 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, obsessive rituals which interfere with routine activities, speech that is intermittently illogical, obscure or irrelevant, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; a difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The recent VA psychiatric examination conducted in December 1997 revealed the veteran to complain of chronic depression, partially relieved by medication but reportedly worse since the death of her husband after 42 years of marriage. She currently took Troxidone 150 mg and Restoril 15 to 30 mg at bedtime. She had six children, with one daughter in local area with whom she denied having much contact. She reportedly had a very limited social or family support system; she lived alone. She had multiple medical problems to include current treatment for leukemia. The examiner noted she presented clean and well-groomed. She exhibited very poor eye contact during the interview and had a somewhat nervous psychomotor activity. Her speech was clear, coherent, and organized. She was oriented. However she was quite despondent and nihilistic in mood, affect and conversation. She seemed “quite dysphoric and discouraged and negative.” There was no evidence of a thought disorder, no delusions, preoccupations, obsessions, no hallucinations. Insight and judgment were judged to be fair. She had no obvious suicidal or homicidal ideation, intent, or plan. Also of record are the veteran’s outpatient treatment records from the local Vet Center where she receives weekly therapy sessions. An April 1997 letter from her therapist, S. L. Pollock, R.N., L.M.H.C., indicated that the veteran continued to be very depressed and under the care of the Center’s psychiatrist, Dr. Schencker. The veteran’s symptoms included nightmares, anxiety, and difficulty with interpersonal relationships. The Board finds that the evidence shows an increase in symptoms that would warrant an increased evaluation of 50 percent, but no higher, under either the old or the new regulations. First, the Board notes that the findings from the recent VA rating examination more closely approximate a 50 percent evaluation under the regulations in effect prior to November 7, 1996. There is no evidence of record showing that the symptoms have the severity or persistence contemplated for a 70 percent rating, that is, for severe impairment in the ability to obtain or retain employment. Further, there is also no evidence contemplating a 70 percent evaluation under the new regulations, as there is no medical evidence showing such symptoms as: obsessive rituals which interfere with routine activities, speech that is intermittently illogical, obscure or irrelevant, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; or a difficulty in adapting to stressful circumstances. As such, the evidence also more closely approximates a 50 percent rating under the new regulations. Specifically, the veteran’s disturbance of mood and motivation, congruent affect, and the opinion of the veteran’s weekly therapist show that the veteran’s occupational and social impairment is evidenced by reduced reliability and productivity due to symptoms that more closely approximate a 50 percent rating. Accordingly, the claim for an increased rating of 50 percent, but no higher, for psychoneurotic depression is granted. (CONTINUED ON NEXT PAGE) ORDER An increased evaluation of 50 percent, but no higher, for psychoneurotic depression, is granted. SANDRA L. SMITH 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 -