BVA9507872 DOCKET NO. 93-14 835 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to restoration of a 100 evaluation for schizophrenia, paranoid type, currently evaluated as 70 percent disabling. 2. Entitlement to a total disability evaluation for compensation purposes pursuant to 38 C.F.R. § 4.16(c) (1994). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from November 1981 to August 1982. The claims file contains a report of a rating decision dated in April 1991 reducing the evaluation for paranoid schizophrenia from 100 to 70 percent disabling, and changing the veteran's status from incompetent to competent. The current appeal arose from a November 1991 rating decision affirming the April 1991 RO determination. In a March 1993 decision, the RO hearing officer affirmed the determination previously entered and denied entitlement to a total disability rating for compensation purposes on the basis of unemployability. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his paranoid schizophrenia has not improved as to have warranted a reduction in compensation benefits, and that due to its disabling effects, he has been rendered unable to work, thereby warranting entitlement to a total disability evaluation. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), 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 preponderance of the evidence is against restoration of a 100 percent evaluation for schizophrenia, paranoid type; and that the record supports a grant of a total disability evaluation for compensation purposes pursuant to 38 C.F.R. § 4.16(c) (1994). FINDINGS OF FACT 1. There has been sufficient improvement in the disabling manifestations of schizophrenia, paranoid type, which can reasonably be expected to be maintained under the ordinary conditions of life. 2. Schizophrenia, paranoid type, is no longer productive of active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. 3. Schizophrenia, paranoid type, is productive of not more than severe social and industrial inadaptability. 4. Schizophrenia, paranoid type, renders the veteran unable to obtain and maintain any type of substantially gainful employment. CONCLUSIONS OF LAW 1. The requirements for restoration of a 100 percent evaluation for schizophrenia, paranoid type, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 3.343(a), 3.344(a)(c), 4.7, 4.132, Diagnostic Code 9203 (1994). 2. The requirements for a total disability evaluation for compensation purposes pursuant to 38 C.F.R. § 4.16(c) have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.16(c), 4.132, Diagnostic Code 9203 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially the Board finds that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that he has presented claims which are plausible. The Board is satisfied that all relevant facts have been properly developed, and no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1 and 4.2, and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's paranoid schizophrenia. The Board has found nothing in the historical record which would lead to a conclusion that the current evidence of record is inadequate for rating purposes. I. Entitlement to restoration of a 100 percent evaluation for schizophrenia, paranoid type, currently evaluated as 70 percent disabling. The service medical records show that the veteran was diagnosed with schizophrenia when hospitalized from June to August 1982. He was considered to be in remission at the time of his discharge. The veteran was hospitalized by VA during July and August 1982 for treatment of schizophrenia, chronic, undifferentiated type. A March 1983 VA psychiatric examination concluded in a diagnosis of schizophreniform disorder, in partial remission, in an immature and dependent personality. A July 1984 VA psychiatric examination report shows the examiner noted all of the veteran's psychiatric problems started in service and he had been continuously on medication with major tranquilizers. The diagnosis was chronic schizophrenia, paranoid type. The examiner noted that the appellant was not employable. The RO granted entitlement to service connection for chronic schizophrenia, paranoid type, with assignment of a 30 percent evaluation when it issued a rating decision in August 1984. A September 1984 letter from a private psychiatrist and social worker show that the veteran could not maintain gainful employment because of his low tolerance level for stress. A November 1984 VA psychiatric examination concluded in a diagnosis of chronic schizophrenia, paranoid type, and a notation that the veteran was not employable. The veteran was hospitalized by VA for treatment of paranoid schizophrenia during January and February 1985. The RO granted an increased evaluation of 50 percent for schizophrenia, paranoid type, when it entered a rating decision in February 1985. A temporary total evaluation based on hospital treatment for schizophrenia, paranoid type, was assigned by the RO in a March 1985 rating decision. In a June 1985 rating decision the RO granted entitlement to a 100 percent evaluation for paranoid schizophrenia effective January 8, 1985, and proposed that the veteran be rated as incompetent for VA compensation purposes. A July 1985 VA psychiatric examination concluded in a diagnosis of schizophrenic disorder, paranoid type. The examiner noted the veteran was competent. A December 1986 VA psychiatric examination concluded in a relevant diagnosis of schizophrenia, paranoid type, treated. The examiner expressed the opinion that the veteran was incompetent to manage his known assets and income at the present time. The veteran was hospitalized by VA from December 1986 to January 1987 for treatment of paranoid schizophrenia. He was readmitted in January 1987 and found to be unemployable. The veteran was rated as incompetent for VA compensation purposes by the RO in a March 1987 rating decision. The appellant was hospitalized for treatment of paranoid schizophrenia during May 1987. He was considered to be unemployable. The claimant was hospitalized by VA for treatment of paranoid schizophrenia from May to June 1988 for treatment of schizophrenia, undifferentiated type. He was not considered to be employable. A December 1990 VA psychiatric examination shows the veteran reported he had tried to work as a laborer, but could not hold any permanent job for a long period of time since his service. Currently he was attending welder's school and receiving good grades. He had stopped visiting the VA mental health clinic in November 1989. Since then he had had no contact with mental health professionals and did not take any medication. A mental status evaluation concluded in a relevant finding of schizophrenia, undifferentiated, chronic, in partial remission. Since he had been in fairly good remission, the examiner noted that at present he would consider the veteran competent to manage his own income and assets. At a September 1991 VA psychiatric examination the veteran reported that he had been unable to hold a permanent job since service. He complained of hearing voices including the voice of his dead grandfather. He felt himself to be upset most of the time. The appellant was currently receiving counseling. He demonstrated definite conceptual disorganization but maintained rapport with the examiner. The claimant admitted to occasional auditory hallucinations. He also was overtly suspicious, but did not have any particular delusional ideations at present. His affect was blunted and inappropriate. Moderate anxiety was demonstrated. Insight and judgment were distorted. The diagnosis was schizophrenia, undifferentiated, chronic. The examiner noted that stress was moderate and there was definite impairment in his psychosocial functioning. On file is a letter from private social workers dated in September 1991. It was noted that the veteran was admitted to a private counseling center to determine his present level of functioning and to evaluate whether he was able to handle his own Social Security benefits. The veteran was to be reevaluated in October. From all indications, he might need medication because of the difficulty he had with hyperactivity and inability to manage stress. It had been observed that while the appellant was under stress, whether while attempting to complete tasks or interact with others, he became excitable and nervous. When demands were placed on him, he was unable to perform and complete the task. The veteran generally ended up quitting. He was not expected to perform adequately in the work place. The longest time he had held a job since service was one week. It was noted this was a strong indicator that the veteran was not employable. At a November 1992 VA psychiatric examination the veteran reported having suffered a nervous breakdown in service. The last time he had taken any medication was two years previously. He stated that the medication made him much worse. The appellant stated that he was not currently working because he had been fired from his last employment. He reported that his temper and anger caused his divorce. The veteran complained of impatience, nervousness, inability to deal with stress and employment problems, and hearing voices. During the mental status evaluation he was somewhat withdrawn. He complained of difficulty sleeping. He reported sleeping for three hours a night for years. Sometimes he slept more, sometimes less. Sometimes he did not sleep at all. The appellant stated that he spent his time by himself. He took walks, took care of his dog, and watched television. He did not want to have anything to do with friends because they took advantage of him. He was still hearing his grandfather's voice. The last time he had heard voices was the night before. He was not receiving any psychiatric treatment because he lived so far away from where he could get free treatment and had no transportation. The appellant was able to concentrate without any difficulty. He was well oriented and able to do serial subtractions of 7. There were no indications that he would have been hallucinating. The examiner noted it was very well known that abusers of drugs including alcohol very frequently denied having a problem. The veteran denied any use of drugs including alcohol. The relevant diagnosis was schizophrenia, residual type. A December 1992 VA Field Examination report shows one informant advised that the veteran always seemed very nervous and acted very strange when he spoke to him. His wife left him and he walked away from his residence which he had neglected. The informant noted that the veteran was not employed and he was unaware of any history of employment. It was said that the veteran often did some strange things. It was obvious to the informant that the veteran "was not all there" and he had been told that the veteran had problems from service. A neighborhood couple advised they were aware of the employment of the veteran's wife, but were aware of no indication that the veteran was employed. VA psychological studies conducted in January 1993 show the veteran's demeanor during the interview as well as his social history was consistent with the diagnosis of paranoid schizophrenia. He had been noncompliant with his medication for six months but was not acutely psychotic at present. He was not actively delusional and did not show evidence of auditory and visual hallucinations. He had never demonstrated any ability to hold a job and was probably unemployable. The veteran was noted as able to manage his funds, but was highly reactive, had a belligerent attitude, and did not get along well with other people. The VA psychologist noted that if he did work he would quickly get into conflicts with his supervisors and fellow workers. As had been the case in the past, the veteran would probably lose the job. The veteran testified at an RO hearing held in January 1993. The veteran testified that he had had 5 jobs since 1989, each of which lasted for three weeks or less. His last job was in landscape design. He also had a job in a plastic factory. He reported that could get a job at a gas station but was afraid that he would be robbed and had difficulty with arithmetic. Currently he lived with a girl friend. She did most of the driving because he could not deal with the stress of too many crazy drivers on the road. He had previously been a welding student but had to drop out because of a lack of funds. Under diagnostic Code 9203 a 100 percent evaluation may be assigned for schizophrenia, paranoid type, with active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. A 70 percent evaluation may be assigned for lesser symptomatology such as to produce severe impairment of social and industrial adaptability. 38 C.F.R. § 4.132 (1994). As noted earlier, the RO reduced the evaluation for the veteran's paranoid schizophrenia when it was reported that such disorder was in partial remission. The Board observes that total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability, will not be reduced, in the absence of clear error, without examination showing material improvement in the physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged work, and, if the latter, reduction of total disability rating will not be considered pending reexamination after a period of employment (3 to 6 months). 38 C.F.R. § 3.343(a) (1994). The Board observes that the veteran's mental disorder has materially improved and may be considered to have been brought under reasonable control because the record suggests that he is no longer totally dependent on medication. In other words, the appellant has gone for considerably long periods without taking medication or receiving therapy. His noncompliance has been reflected in his behavior and demeanor, but has not resulted in total psychotic manifestations reflective of the criteria for a 100 percent evaluation under diagnostic code 9203. The Board observes that ratings on account of disease subject to temporary or episodic improvement such as manic depressive or other psychotic reaction will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a) (1994). The foregoing provisions apply to ratings which have continued for long periods at the same level (5 years or more), as in the veteran's case. They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c) (1994). The Board is of the opinion that there has been definite improvement in the disabling manifestations of the appellant's psychiatric disability. The record shows that several years previously he was subject to very frequent inpatient care and was managed on regular medication. The appellant has not been hospitalized in several years and has been able to get along without much medication, and during some intervals, no medication whatsoever. Nonetheless, he has not decompensated but has managed to reach a certain stability as is shown in his articulate responses on examination and at the RO hearing, and his pursuit of a course to study in welding which was terminated solely because of a lack of funds. Paranoid schizophrenia is no longer productive of active psychotic manifestations warranting reinstatement of the previous 100 percent evaluation under diagnostic code 9203. No question has been presented as to which of two evaluations would more properly classify the severity of paranoid schizophrenia. 38 C.F.R. § 4.7 (1994). Paranoid schizophrenia has not rendered the veteran's disability picture unusual or exceptional in nature and has not markedly interfered with employment. It has not required frequent inpatient care for many years thus rendering impractical the application of regular schedular standards, thereby precluding a grant of an increased evaluation on an extraschedular basis. 38 C.F.R. § 3.321(b)(1) (1994). It is the judgment of the Board that the record does not support restoration of the previous 100 percent evaluation for schizophrenia, paranoid type. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 3.343(a), 3.344(a)(c), 4.7, 4.132, Diagnostic Code 9203 (1994). II. Entitlement to a total disability evaluation for compensation purposes pursuant to 38 C.F.R. § 4.16(c) (1994). The veteran is evaluated as 70 percent disabled for his schizophrenia, paranoid type. This is his only service-connected disability. In order to qualify for a total disability evaluation for compensation purposes pursuant to 38 C.F.R. § 4.16(c) (1994), his psychiatric disability must be shown to preclude him from securing or following a substantially gainful occupation. This is the veteran's case. In earlier paragraphs the Board discussed the opinions of VA and non-VA health care professionals who noted that the veteran would be unable to function in any industrial environment. He had proven in his industrial history that this was the case. The record shows the veteran has a very unstable employment history. He is not currently working and previous attempts to undertake employment have resulted in his being fired or his quitting. As the appellant's only service-connected disability is schizophrenia, paranoid type, evaluated as 70 percent disabling, and as this disorder has been found to preclude him from securing or following a substantially gainful occupation, the Board finds that a 100 percent evaluation for compensation purposes pursuant to the criteria of 38 C.F.R. § 4.16(c) (1994) is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.16(c), 4.132, Diagnostic Code 9203 (1994). ORDER Entitlement to restoration of a 100 percent evaluation for schizophrenia, paranoid type, is denied. Entitlement to a total disability evaluation for compensation purposes pursuant to 38 C.F.R. § 4.16(c) (1994) is granted, subject to pertinent criteria applicable to the payment of monetary benefits. ALBERT D. TUTERA Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), 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 (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.