Citation Nr: 0000131 Decision Date: 01/04/00 Archive Date: 12/28/01 DOCKET NO. 94-41 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to restoration of a 50 percent evaluation for schizophrenia, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Salari, Associate Counsel INTRODUCTION The appellant served on active duty from August 1989 to December 1991. It appears that he also had 4 years of active duty service prior to this. This appeal was initially before the Board of Veterans' Appeals (Board) from a January 1993 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By means of an order dated in December 1996, the Board remanded this case for further development. The case is now returned to the Board for a decision. FINDINGS OF FACT 1. The appellant was awarded service connection for schizophreniform disorder, with a 50 percent disability rating, effective from December 1991; a January 1993 rating decision reduced that rating to 10 percent, effective from April 1993. 2. At the time of the reduction in rating in 1993, the appellant's psychiatric symptoms were, in essence, completely controlled and stabilized with medication. CONCLUSION OF LAW The criteria for restoration of a 50 percent rating for schizophrenia have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.105(e), 4.1, 4.2, 4.7, and Diagnostic Code 9204 (1996 & 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION By means of a rating decision dated in July 1992, the appellant was granted service connection for schizophrenic disorder effective from December 1991; he was assigned a 50 percent rating at that time. The medical evidence of record at that time included the appellant service medical records, which indicate that in 1991, he was admitted to a Naval hospital because of nightmares and auditory hallucinations. He was reportedly receiving commands to kill someone. He experienced the tactile sensation of someone performing fellatio on him. He also endorsed delusions of the CIA controlling people's minds. He endorsed telepathic and clairvoyant abilities. His delusions and hallucinations were resolved with antipsychotic medication. Mental status examination in June 1991 showed that the appellant's mood was euthymic with a congruent but occasionally silly affect. He adamantly denied suicidal or homicidal ideation. He denied current hallucinations or delusional ideation, but was able to relate that he was crazy before but is better now. His memory and cognition were intact. Insight was present and judgment was unimpaired. During his hospitalization, he did not manifest any ward management problems or psychotic or inappropriate behavior. At discharge, he was not psychotic, depressed, suicidal, or homicidal. He was found to suffer from a mental illness of psychotic proportions that precluded him from performing further military service and he was medically discharged. His diagnosis was schizophreniform disorder, undifferentiated type, manifested by delusions, auditory and tactile hallucinations, flat affect, and social withdrawal, all of which lead to marked impairment in social and occupational functioning. Impairment for military service was severe; impairment for civilian industrial capacity was considerable. A report of a VA psychiatric examination, dated in May 1992, indicates that the appellant reported that while on active duty in Kuwait, he began to hear voices and that "he felt [that] some machine was trying to get him." He was concerned about a mind-controlled device that he thought was working on him. He also felt that monsters were coming to get him. He reported that he received medication some time later and that as long as he received his medication, he did not have the hallucinatory experiences. The examiner reported that on a personality study, the appellant indicates that he was not uneasy around others but that he did hear voices and had a desire to hurt people. He also reported that his memory was a bit worse than it used to be. He reported that he got along with people. He did not have any employment except to work for his father. He was taking 8 mg Trilafon and 2 mg Cogentin per day. On this medication, he was free from the auditory hallucinations. On intellectual examination, he got 3 out of 4 proverbs, worked the math problems correctly, and identified national political figures, but not the senators from Florida. The examiner reported that the appellant's illness was correctly identified as schizophreniform illness and that it was responding quite well to the modest medication with an anti- psychotic drug. He adapted reasonably well to working for his father and was to continue under treatment here at the VA clinic. A report of a VA examination, dated in August 1992, indicates that the appellant reported that he did not "feel just right." The examiner noted that the appellant was unkempt in appearance and his clothing was soiled. His affect was slightly flattened. His mood seemed to be essentially euthymic; however, with indications that he felt there was nothing really grossly wrong with him except for strange feelings in his head. When lying down, he would occasionally feel electricity going down his neck and this would cause him to space out. He felt that if he quit his Trilafon, his hallucinations and delusions would return. He did not know why he felt that way but he seemed to be very definite that the medication was keeping his thoughts clear and his behavior essentially normal. The appellant reported that he spent his time in his father's furniture store watching television, going to movies, and having dates; he was sexually active. He denied having mood swings. He did not have any evidence of auditory or visual hallucinations, thought control, or thought insertion. Orientation to time, place, person, and situation was adequate. His memory was intact and insight and judgment were fair. He was competent for VA purposes. The examiner stated that since his illness had lasted more than 6 months, the diagnosis was changed to schizophrenia, undifferentiated type, subchronic, in remission, stable on medication. Subsequently, by means of a September 1992 rating decision, the RO proposed to reduce the appellant's rating to 10 percent. The appellant expressed disagreement, stating that the severity of his disability had not changed. By means of a January 1993 rating decision, the RO reduced the disability rating to 10 percent, effective from April 1993. Subsequent medical evidence of record include outpatient treatment records dated between from 1995 to the present, which indicate that the appellant continues to receive medication for his psychiatric disability. A treatment note dated in November 1995 indicates that he worked at the flea market locally. He denied any symptoms of emotional disorder. An April 1996 treatment note indicates that he had no problems relating to the emotional disorder. His illness was noted to be stabilized on medication. A treatment record dated in October 1996 indicate that he denied any symptoms relating to his emotional disorder. He continued to operate his flea market business. The diagnosis was psychosis in remission. A treatment note dated in March 1997 indicates that he continued to do well with his flea market business. His medication was effective; he denied any visual or auditory hallucinations. He lived with his girlfriend and got along great with her. An August 1997 treatment note similarly reports that there were no hallucinations and that he was stabilized on medication. A September 1997 treatment note indicates that he was quite stable on medication and that there were "no signs of TD." He did hallucinate occasionally. A treatment note dated in March 1998 indicates that the appellant reports that he occasionally heard voices, but that this was no problem now that he understood his illness. His main problem was that he needed excess sleep due to the medications. An August 1998 treatment note indicates that he was alert and oriented and without any psychotic symptoms. The Board notes that the appellant failed to report for a VA psychiatric examination in July 1999. His representative has asserted that there is no indication in the evidence of record that the appellant received notice of the time and place of this examination. However, the Board notes that in a supplemental statement of the case, dated in August 1999, the RO notified him of this. There is no indication that the appellant made any attempts to reschedule. VA regulations provide that where reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance is to be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). The law also requires that the veteran be given 60 days to present additional evidence showing that compensation should be continued at the present level. Id. In this case, the above procedural requirements were met. Disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. The ratings are intended, as far as practicably can be determined, to compensate the average impairment of earning capacity resulting from such disorder in civilian occupations. 38 U.S.C.A. § 1155. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.1 and 4.2 (1998); Peyton v. Derwinski, 1 Vet. App. 282 (1991). It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms. 38 C.F.R. § 4.13. Under the criteria in effect at the time of the reduction of the appellant's disability rating, a 10 percent rating was awarded for mild impairment of social and industrial adaptability. A 30 percent rating was awarded when there was definite impairment of social and industrial adaptability. According to VA O.G.C. Prec. Op. No. 9-93 (Nov. 9, 1993), "definite" means more than moderate but less than rather large. A 50 percent rating is granted when there was considerable impairment of social and industrial adaptability. 38 C.F.R. Part IV, Diagnostic Code 9204 (1996). The Board finds that restoration to the 50 percent rating is not warranted under the rating criteria in effect at the time of the reduction. The Board notes that the medical evidence of record at the time of the assignment of his 50 percent rating included his service medical records which showed that he was having a considerable amount of hallucinations and delusions. While these symptoms apparently came under control with medication, his physicians still found that his impairment for civilian occupation was considerable. His VA psychiatric examination in May 1992, while noting that he reported that his symptoms were under control with medication, noted a personality study which showed that he heard voices and had a desire to hurt people. His memory was noted to be worse. The appellant's August 1992 VA examination showed that he had no mood swings, auditory or visual hallucinations, thought control, or thought insertion. The appellant reported that the medication was keeping his thought clear and his behavior essentially normal. Medical records dated subsequent to that confirm that there was sustained improvement. These records show that his psychiatric disability was stabilized on medication. He denied any emotional problems and was able to operate his business effectively. He reported occasional hallucinations, but, this did not present any problems for him as he understood his illness. His psychosis was found to be in remission. The Board finds that with the medication, the appellant's symptoms were mild and therefore, assignment of a 10 percent rating was appropriate. The Board notes that new criteria for rating psychiatric disabilities became effective on November 7, 1996. See 61 Fed. Reg. 52,695-702. Under the new rating criteria, a 10 percent rating is granted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is granted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability 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, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is granted when there is 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; or difficulty in establishing and maintaining effective work and social relationships. The Board finds that even if we were to consider the new rating criteria, restoration to a 50 percent rating is not warranted. As mentioned above, the appellant's symptoms are essentially controlled by continuous medication. The medical evidence of record does not show any occupational or social impairment due to any psychiatric symptoms. Therefore, the claim is denied. ORDER Entitlement to restoration of a 50 percent evaluation for schizophrenia is denied. NANCY I. PHILLIPS Member, Board of Veterans' Appeals