Ferraro v. Derwinski

1 Vet. App. 326, 1991 U.S. Vet. App. LEXIS 54, 1991 WL 146515
United States Court of Appeals for Veterans Claims·Decided June 24, 1991·No. No. 90-444·Published·Cited by 68 cases

Opinion

IVERS, Associate Judge:

Appellant, Richard J. Ferraro, appeals from a February 8, 1990, Board of Veterans’ Appeals (BVA or Board) decision which concluded that a rating in excess of 50-percent for psychiatric disorder and a rating in excess of 40-percent for residuals of a low back injury were not warranted. The Board also held that appellant was not unemployable by reason of his service-connected disabilities and therefore was not entitled to a total disability rating, for compensation purposes, based upon unemploya-bility. We remand the case to the BVA for reconsideration of all relevant evidence, issues, and regulations in a manner consistent with this opinion.

Appellant served in the United States Armed Forces, from April 2, 1942, to August 16,1946. On May 31,1984, the Veterans’ Administration (now the Department of Veterans Affairs) (VA) granted appellant a 50-percent disability rating for a generalized anxiety disorder, a 40-percent disability rating for residuals of an inter-vertebral disk syndrome, and a zero-percent disability rating for pruritus and residuals of a right hernia repair. Appellant has a combined disability evaluation of 70-percent. R. at 6. This disability rating has remained in effect since 1984. On February 10, 1986, appellant filed a claim for an increase in his disability ratings, stating that he could no longer work as a senior investigator for Passaic County, New Jersey. R. at 1. He worked for Passaic County from April 3, 1975, to February 8, 1980, and from June 30, 1980, to February 21, 1986. R. at 3. Appellant’s appointment as senior investigator was not renewed and he retired on April 1, 1986. Appellant’s claim for an increase in disability ratings was denied by a VA rating decision on September 29, 1986. Appellant appealed this decision to the BVA. On July 18,1988, the BVA upheld the denial. R. at 12-13.

[328]*328On July 21, 1988, appellant requested that VA reopen his claim for an increase in disability ratings for psychiatric and lower back disorders along with a total rating of 100-percent disabled based on individual unemployability by reason of his service-connected disabilities. On the VA form entitled Report of Medical Examination for Disability Evaluation, appellant wrote, under the section for Occupational History Since Last VA Examination, “[I w]as forced out of my last 6 jobs because of my irritability due to my nervous condition.” R. at 19. He went on to state under the Medical History section, “[I h]ave lost my ability to concentrate on my job or attending to personal affairs.” Id. During September and October 1988, appellant received psychological, orthopedic and clinical examinations by VA. A rating decision on December 15, 1988, held that the evidence received did not warrant any change in appellant’s disability ratings. Appellant filed a Notice of Disagreement on February 3, 1989, in response to the December 1988 rating decision. On February 8, 1990, the BVA upheld the denial for increase in appellant’s disability ratings .and refused to grant individual unemployability. Appellant made a timely appeal to this Court.

The Court has jurisdiction to hear this appeal pursuant to 38 U.S.C. § 4052 (1988).

I. INCREASE OF SERVICE-CONNECTED DISABILITIES

A. Increase for Psychiatric Disorder

Generalized anxiety disorder is to be rated under 38 C.F.R. § 4.132, Diagnostic Code 9400 (1990) which provides for the following categories of disability:

100 percent:

The attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. Totally incapacitating psy-choneurotic, symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior. Demonstrably unable to obtain or retain employment.

70 percent:

Ability to establish and maintain effective or favorable relationships with people is severely impaired. The psycho-neurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment.

50 percent:

Ability to establish or maintain effective or favorable relationships with people is considerably impaired. By reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment.

38 C.F.R. § 4.132 (emphasis added).

In its decision not to increase appellant’s rating, the BVA, in the Discussion and Evaluation portion of the opinion, seems to place great weight on the fact that “although he takes psychotropic medication, he has not been hospitalized for psychiatric purposes in the recent past.” Richard J. Ferraro, loc. no. 005163, at 5 (BVA Feb. 8, 1990). Hospitalization does not appear as a criterion in determining the severity of a disability under 38 C.F.R. § 4.130 (1990), which explains:

The severity of disability is based upon actual symptomatology, as it affects social and industrial adaptability. Two of the most important determinants of disability are time lost from gainful work and decrease in work efficiency. The rating board must not underevaluate the emotionally sick veteran with a good work record, nor must it overeval-uate his or her condition on the basis of a poor work record not supported by the psychiatric disability picture. It is for this reason that great emphasis is placed upon the full report of the examiner, descriptive of actual sympto-matology. The record of the history and complaints is only preliminary to the examination. The objective findings and the examiner’s analysis of the sympto-matology are the essentials. The examiner’s classification of the disease as [329]*329“mild,” “moderate,” or “severe” is not determinative of the degree of disability, but the report and the analysis of the symptomatology and the full consideration of the whole history by the rating agency will be.... Ratings are to be assigned which represent the impairment of social and industrial adaptability based on all of the evidence of record. (See § 4.16 regarding the issue of individual unemployability based on mental disorder.) Evidence of material improvement in psychotic disorders disclosed by field examination or social survey should be utilized in determinations of competency, but the fact will be borne in mind that a person who has regained competency may still be unemployable, depending upon the level of his or her disability as shown by recent examinations and other evidence of record.

(Emphasis added). According to the above-cited regulation, the VA rating board is required to take the entire record into consideration. However, there is only one psychiatric examination found in the record and that was performed by a YA doctor in September 1988.

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Ferraro v. Derwinski, 1 Vet. App. 326, 1991 U.S. Vet. App. LEXIS 54, 1991 WL 146515 (Cal. 1991).

1 Vet. App. 326 (Ferraro v. Derwinski) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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