BVA9502821 DOCKET NO. 94-00 036 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Mississippi State Veterans Affairs Commission ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran served on active military duty from October 1974 to February 1975 and from August 1975 to March 1977. In January 1995, the veteran filed a motion with the Board of Veterans' Appeals (Board) asking that his appeal be advanced on the Board's docket. That motion was granted on February 1, 1995. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the regional office (RO) committed error in denying his claim of entitlement to a permanent and total disability rating for pension purposes. He asserts that his main problem is depression and that his mental disorder prevents him from working. 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 a permanent and total disability rating for pension purposes is warranted. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained insofar as possible. 2. The veteran is incapable of all but marginal employment because of schizophrenia. CONCLUSION OF LAW The veteran is permanently and totally disabled within the meaning of governing law and regulations. 38 U.S.C.A. §§ 1502, 1521, 5107 (West 1991); 38 C.F.R. Part 3, §§ 3.321, 3.340, 3.342, and Part 4, §§ 4.15, 4.16, 4.17 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that the veteran has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). Pension is payable to a veteran who served for ninety days or more during a period of war and who is permanently and totally disabled due to nonservice-connected disabilities not the result of his own willful misconduct. 38 U.S.C.A. § 1521 (West 1991). Such disability may be based on objective or subjective criteria. With regard to the objective criteria necessary for a permanent and total disability rating, the Board notes that a total disability rating is based primarily upon the average impairment of earning capacity. 38 C.F.R. Part 4, § 4.15 (1994). The VA's Schedule for Rating Disabilities (Rating Schedule) provides that, when impairment is commensurate with a 100 percent rating in accordance with schedular criteria, a total rating on a schedular basis is warranted. 38 C.F.R. § 3.340(a)(2) (1994). 38 C.F.R. Part 4, § 4.17 (1994) also provides that all veterans basically eligible and unable to secure or follow a substantially gainful occupation by reason of disability likely to be permanent shall be rated permanently and totally disabled. For pension purposes, the permanence of the percentage requirements of 38 C.F.R. Part 4, § 4.16 (1994) is a requisite. 38 C.F.R. Part 4, § 4.17 (1994). For pension purposes, when the percentage requirements are met and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure and follow substantially gainful employment by reason of such disability. 38 C.F.R. Part 4, § 4.17 (1994). In making such determinations , marginal employment may be consistent with unemployability if the restriction of securing or retaining better employment is due to disability. Id. Pension benefits may also be awarded based on subjective criteria. According to 38 C.F.R. Part 4, § 4.15 (1994), in individual cases, full consideration will be given to such factors as unusual physical or mental effects in individual cases, peculiar effects of occupational activities, defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disabilities. In addition, 38 C.F.R. Part 4, § 4.17(b) (1994) states that, where the veteran fails to meet the percentage requirements but meets the basic eligibility criteria and is unemployable, consideration of 38 C.F.R. § 3.321(b)(2) (1994) is appropriate. In turn, 38 C.F.R. § 3.321(b)(2) provides that, where the veteran does not meet the percentage requirements of the Rating Schedule but is unemployable by reason of his age, occupational background, or other related factors, a permanent and total disability rating on an extra-schedular basis is warranted. The most recent rating decision, which is dated in October 1993, listed the veteran's disabilities as nocturnal dyspnea of uncertain etiology, generalized anxiety disorder, chronic paranoid schizophrenia, peptic ulcer disease, sinus congestion, and alcohol abuse of willful misconduct origin. Except for the schizophrenia, the veteran is considered zero percent disabled from each of the remaining disabilities. In addition, throughout the present appeal, the veteran has asserted that his health problem is depression and that his mental disorder prevents him from working. The medical records included in the claims file demonstrate that the veteran has been treated recently for a mental illness. Outpatient treatment records from Pine Belt Mental Healthcare Resources indicate that the veteran was treated at this facility several times between October 1991 and January 1992. In October 1991, the veteran sought treatment at this facility for complaints of sleep disturbances, crying for no reason, and nightmares. Mental status examination showed socially appropriate dress; appropriate grooming; good eye contact; unremarkable physical appearance; normal motor activity; cooperative relationship to the interviewer; rational form of thought; normal tempo of speech; ideas of reference, hopelessness, worthlessness, and helplessness; delusions of being controlled; auditory, gustatory, olfactory, somatic, and tactile hallucinations; perceptual hypnagogic phenomena; dysphoric mood; blunted affect; initial and middle insomnia; and decreased appetite. The veteran admitted having suicidal ideas, suicidal intent, and assaultive/homicidal ideas but denied having assaultive/homicidal intent. He explained that he stopped short of shooting himself. The examiner diagnosed a psychotic disorder not otherwise specified. He recommended further psychiatric evaluation, monthly examinations, and possible day treatment. In November 1991, the veteran underwent psychiatric testing at this mental health care facility. At that time, the veteran complained of recent depression and anxiety. Evaluation of his mental status at that time revealed that he was alert and had blunted affect, decreased sleep and appetite, no suicidal or aggressive ideation, and intact cognition. The examiner concluded that the veteran was depressed and anxious and used alcohol. The examiner diagnosed major depression and alcohol usage. In December 1991, the veteran sought treatment at Forrest General Hospital for complaints of nervousness and anxiety. According to the medical record, the veteran appeared agitated, cooperative, delusional, and afraid. The diagnoses of anxiety and depression were made, and the veteran agreed to get treatment at the local VA hospital on an outpatient basis. On that same day, the veteran was admitted to the VA Medical Center in Jackson, Mississippi and remained there for almost two weeks. Mental status examination showed that the veteran was cooperative, alert, and oriented times four and had a depressed mood, an affect appropriate to mood, thought processes which were positive for suicidal and homicidal ideations, auditory and visual hallucinations, fair judgment, and fair insight. The diagnosis of a psychosis was made. After taking several different medications (one type of medicine was found not to be helpful for his psychosis), the veteran was found to be doing well and had no auditory or visual hallucinations or suicidal or homicidal ideations and was sleeping well. The veteran was discharged home with medication and with instructions to receive follow-up treatment at the Pine Belt facility in two weeks. In January 1992, the veteran again sought treatment at the Pine Belt medical facility for complaints of visual hallucinations, sleep disturbances, feelings of anxiety and choking, and general anxiety. According to the treatment record, the veteran continued to take medication for his psychiatric problem. A notation was made on the medical report that the veteran was transferred to another medical facility. The veteran received treatment at the Pine Belt facility two more times in January 1992 for complaints of hallucinations, paranoia, and disturbing dreams. The veteran was found to have a normal mood slightly flat affect and to be oriented and cooperative. The veteran's treatment plan included being monitored in monthly group sessions in the future. According to the medical records from these two treatment sessions, the diagnosis of a psychotic disorder not otherwise specified and the impression of alcohol abuse were made. According to an April 1993 statement from the Pine Belt facility, the veteran had participated in 27 group and 4 individual therapy sessions since September 1992. It was reported that at these treatment sessions the veteran complained of experiencing ongoing problems with nervousness, anxiety, reasonless anger, and sadness. The veteran also reported that these symptoms generally occurred at work and often necessitated that he leave his job. The writer concluded that these episodes caused the veteran increased tension which would be lessened by the veteran's ceasing work altogether for a period of time. At the October 1993 VA examination for mental disorders, the veteran informed the examiner that he had a series of nervous breakdowns in 1972 and that from then until 1974 he continued to seek treatment and to receive medication for these problems. The veteran reported that by 1988 or 1989 he experienced sleeplessness and nightmares of being choked, that he was treated at the Jackson VA Mental Hygiene Clinic until late 1991, and that between 1990 and 1991 he was admitted approximately three times to the Jackson VA Psychiatry Ward for similar problems. In addition, the veteran informed the examiner that he began receiving outpatient psychiatric treatment at the Pine Belt Mental Health Center in June 1991 and continues to be treated by that facility. The veteran was taking Pamelor. He described his present mental condition as being upset, crying, shaking a lot and experiencing initial insomnia, variable appetite, delirium tremens, auditory and visual hallucinations, thoughts of homicide and suicide. He also admitted to having a history of thought insertion, broadcasting, and ideas of reference. Mental status examination demonstrated that the veteran was well developed, well nourished, appropriately dressed, adequately groomed, and well oriented. He exhibited no unusual motor activity, his memory was adequate, and there was no flight of ideas, looseness of associations, or speech impairment. The examiner found the veteran's mood and affect to be mildly anxious. The veteran denied hallucinations and homicidal and suicidal thoughts and expressed no identifiable delusions. In addition, the examiner noted that, at the time of the examination, the veteran was unemployed and had last been employed in August 1993 when he held a part-time job as a T-shirt printer. The examiner noted that the veteran reported a history of approximately 21 years of symptoms of a mental disorder suggestive of chronic paranoid schizophrenia. Although this evaluation does not provide a detailed account of the veteran's mental condition, the examination does indicate that the veteran has had a long-standing mental problem, that he was unemployed, and that when he was recently employed he only worked part-time. Furthermore, the veteran was found in April 1993 by the Pine Belt Mental Healthcare Resources, where he received much of his private medical treatment for his mental disorder, to be unemployable due to his mental illness. Moreover, in August 1993, the Mississippi Employment Security Commission (Commission) denied the veteran's claim for benefits. The Commission explained that the Mississippi Employment Security Law allows for the grant of such benefits with respect to any week only if the Commission finds that the applicant is able to work and is available to work. The Commission found, in the veteran's case, that he was unable to work. As a basis for this conclusion, the Commission cited evidence it had received from the veteran's physician who had concluded that the veteran was not able to work at that time. According to a statement, which was dated in the same month as the Commission's decision, J.C. Brister, M.D., the veteran's physician, reported that he had treated the veteran since August 1992 for depression and alcohol abuse. Dr. Brister also indicated that he had advised the veteran to leave work and that the veteran was not able to return to his usual work. Dr. Brister was unable to determine in August 1993, which was the time of his last treatment session with the veteran, whether the veteran was able to do other types of work. On VA Form 21-527, Income-Net Worth and Employment Statement, the veteran indicated that he was awarded Social Security disability benefits, effective from August 1991 in the monthly amount of $449.00. On VA Form 21-526, Veteran's Application for Compensation or Pension (Application), which was received at the RO in January 1984, the veteran estimated that his total earnings for the calendar year would approximate $4500. In the Application which was received at the RO in December 1991, the veteran reported that he only received approximately $420 of monthly income from Social Security. On VA Form 21-527, Income-Net Worth and Employment Statement, which was received at the RO in January 1992, the veteran asserted that he became totally disabled in December 1990 when he quit his job due to his disability and that the most income he had earned in any one year was $7000 in 1989 when he worked as a screenprinter. During 1990, the veteran maintained that he held two part-time jobs for which he had total income of $7, 300.00. In addition, on VA Form 21-0515, Improved Pension Eligibility Verification Report, which was received at the RO in March 1993, the veteran reported that he had earned approximately $5900 in the calendar year 1992 when he worked for "[redacted] Warehouse." He asserted that he had to quit this job in March 1993 due to health reasons. The veteran's W-2, Wage and Tax Statement, for 1992 confirms this amount of income. On VA Form 21-0517-1, Improved Pension Eligibility Verification Report, which was received at the RO in August 1993, the veteran reported that he had earned approximately $2170 in the first seven months of 1993. The veteran claimed that he worked less hours in 1993 due to a mental illness he described as depression. Although a review of the veteran's employment history shows that he has held several jobs, he clearly has not been able to maintain more than marginal employment. The United States Department of Commerce, Bureau of the Census, has established and published the following annual amounts as the poverty threshold for one person: $6,311 in 1989; $6,652 in 1990; $6,932 in 1991; and $7,143 in 1992. VA Adjudication Procedure Manual, M21-1, Part VI, Addendum C, April 15, 1994. The veteran's income in recent years has been at or near the poverty level. According to an undated statement from [redacted], the veteran's supervisor at [redacted] Warehouse, the veteran had worked at this place of employment for two to three years as a part-time employee. Mr. [redacted] specifically stated that the veteran could not work full-time due to the pressures and deadlines involved in this type of business. According to Mr. [redacted]'s statement, many times the veteran would work only one or two hours and return to his home because, as he maintained, the strain of the job would become unbearable for him. Mr. [redacted] noted that the veteran attempted to overcome his problems by regularly attending meetings one or two days a week but that the veteran's condition appeared to have worsened recently. According to Mr. [redacted], one day after working only half-an-hour, the veteran quit his job because he "could not stand it anymore." Mr. [redacted] saw the veteran more or less on a daily basis and, therefore, had the opportunity to observe the veteran at work. Consequently, the Board finds that Mr. [redacted]'s statements are very persuasive regarding the extent of industrial impairment resulting from the veteran's disability. As noted above, entitlement to pension benefits may be objectively determined if the veteran is unemployable as a result of a permanent disability or experiences a disability which would preclude an average person from following a substantially gainful occupation, if it is reasonably certain that such disability is permanent. 38 U.S.C.A. § 1502(a) (West 1991); 38 C.F.R. Part 4, § 4.15 (1994). In addition, pension benefits may also be awarded based upon subjective criteria, including consideration of the veteran's age, education and employment history, and unusual physical or mental effects. 38 C.F.R. Part 3, § 3.321, Part 4, § 4.15 (1994). The Board notes that the nature and severity of the veteran's mental illness is not exhaustively documented in the claims file. However, without reaching a conclusion as to the particular rating which may be assigned to the veteran's chronic paranoid schizophrenia, the Board finds that the veteran is entitled to pension benefits based upon the subjective criteria of 38 C.F.R. Part 3, § 3.321, Part 4, § 4.15 (1994). The veteran obviously has a psychiatric disorder which impedes his ability to work. Although he has held several jobs recently, his income from these endeavors in recent years has hovered around the subsistence level. Consequently, the Board finds that the veteran has not engaged in more than marginal employment in recent years. The Board has also attached considerable weight to the evidence, which has been outlined in the preceding paragraphs, in the record and which, at the very least casts immense doubt upon his capacity to obtain and sustain substantially gainful employment. It must be acknowledged that there is some measure of ambiguity in the record. The role that alcohol may play in the veteran's overall status is disquieting. Nonetheless, the existence of acquired psychiatric illness unrelated to substance abuse is established. The veteran is not required by statute or regulation to "prove" his claim. Only when the preponderance of the evidence is against the claim may the claim be denied. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER A permanent and total disability rating for pension purposes is granted. JOHN E. ORMOND 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.