BVA9503828 DOCKET NO. 93-08 365 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to restoration of a 50 percent rating for a psychiatric disorder, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD P. M. Lynch, Associate Counsel INTRODUCTION The veteran served on active duty from February 1972 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. That decision reduced the rating for the veteran's service-connected psychiatric disability from 50 percent disabling to 30 percent disabling. The 50 percent rating had been in effect since August 1990. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO committed error in denying his claim of entitlement to restoration of at least a 50 percent rating for a psychiatric disorder. He asserts that his service-connected disability is more severely disabling than currently evaluated. Specifically, he states that he has mood swings which incapacitate him, an inability to concentrate, anxiety, occasional poor sleep and nightmares. He further maintains that he has been unable to hold a job since his discharge from service. Consequently, he contends that he is entitled to restoration of at least a 50 percent rating. 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 the veteran's claim of entitlement to restoration of a 50 percent rating. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran is currently evaluated as 30 percent disabled for a service-connected psychiatric disorder. 3. Symptomatology consistent with a diagnosis of an active psychiatric disorder has not been shown by recent medical evidence. 4. The veteran's service-connected psychiatric disorder is manifested by symptoms and objective findings indicative of no more than definite social and industrial impairment. 5. The veteran's service connected disability does not present an exceptional or unusual disability picture rendering impracticable the application of the regular schedular standards that would have warranted referral of the case to the Director of the Compensation and Pension Service. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for a psychiatric disorder have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Code 9206 (1994). 2. Failure of the RO to consider or document its consideration of an extraschedular rating and the failure to refer the case to the Director of the Compensation and Pension Service is no more than harmless error. 38 C.F.R. § 3.321(b)(1) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is to say that he has presented a claim which is plausible. VA has assisted the veteran as much as it can in the development of his claim. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such injuries in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1994). The severity of a psychiatric disability is based upon actual symptomatology as it affects social and industrial impairment. Two of the most important determinants of disability are time lost from gainful employment and decrease in work efficiency. The objective findings and the examiner's analysis of the symptomatology are the essentials. The examiner's classification of the disease as "mild", "moderate", or "severe" is not determinative of the degree of the 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 the evidence of record. 38 C.F.R. §§ 4.129. 4.130 (1994). Initially, the Board notes that the instant claim is one for restoration of the prior 50 percent rating, which requires the application of 38 C.F.R. § 3.344 (1994). See Peyton v. Derwinski, 1 Vet.App. 282 (1991). According to this regulation, a reduction in a rating which has "stabilized" for a five year period or more may not be reduced on the basis of only one examination, unless all of the evidence of record clearly demonstrates that a permanent improvement has occurred. The 50 percent rating from which the current reduction was taken had been in effect for under two years. Therefore, the level of the veteran's psychiatric disability has not stabilized within the meaning of 38 C.F.R. § 3.344, and the provisions of this regulation are not applicable in this case. In making the determination herein, the Board has reviewed the veteran's clinical history. His service medical records indicate that he had a psychotic break during service in March 1972, diagnosed as an acute schizophrenic episode. He was discharged from service in June 1972 by reason of physical disability. In a rating decision in October 1972, the RO granted service connection for manic depressive illness and assigned a 100 percent rating, effective June 1972. In a letter dated in October 1973, a VA psychiatrist reported that the most appropriate diagnosis of the veteran's condition would be schizo- affective schizophrenia, with secondary sexual deviations, rather than manic depressive psychosis. Accordingly, in November 1973 the RO granted service connection for schizo-affective schizophrenia with secondary anti-social personality, pedophilia and other sexual deviation, and continued the 100 percent rating. The veteran was subsequently hospitalized from May to November 1973 and in July 1974 for behavior such as extreme sexual hyperactivity, aggression, glue sniffing, inability to hold a job, forgery of checks, nervousness and depression. A report of field examination dated in August 1974 indicated that at that time the veteran was hospitalized at Madison State Hospital under temporary commitment pursuant to a Court order. Thereafter, a report of a VA field examination dated in December 1978 recommended that the veteran's rating be reduced on the grounds that it did not appear that he required a guardian and that he was living apart from his custodian and apparently receiving little supervision. The 100 percent rating remained in effect until April 1981 when it was reduced to 50 percent based upon the findings of an April 1981 VA examination which diagnosed manic depressive illness by history, in remission, with the veteran being competent. The veteran reported no psychiatric symptoms and gave a history of having various jobs as a carpenter. Although he alleged he was unable to hold a job due to fatigue, the examiner reported that his mental condition was good and did not support his claim. In March 1982, following a VA examination, the RO further reduced the veteran's evaluation from 50 percent to 30 percent, having found that the disability had improved. He stated that he was doing well on medication and denied depression, anxiety and poor sleep. He also reported a history of various carpentry jobs, a good family life, playing the guitar, working on cars, having many friends and socializing, and spending most of his time at home helping his wife care for the children. Objective findings were normal. The examiner recommended vocational counseling as the veteran had allegedly not worked since 1978. The veteran was hospitalized in October 1988 complaining of mood swings, increased anxiety, depression, crying spells and trouble sleeping. It was noted that he had recently experienced the death of a relative and separation from his wife who was reportedly having an affair. His medication was adjusted and his condition improved. He was discharged and followed as an outpatient. On the basis of these findings, the 30 percent evaluation was continued by a rating decision in November 1988. The rating was increased to 50 percent in February 1991 on the basis of a VA examination which noted the veteran's depression and inability to interact socially. Thereafter, on the basis of the findings of a December 1991 VA examination, a rating decision in January 1992 proposed to reduce the veteran's rating to 30 percent, noting that the examiner described his current psychiatric condition as good with an excellent prognosis. This proposed reduction was accomplished by a rating decision in April 1992. The veteran is now appealing this determination, arguing that he has a psychiatric disorder warranting restoration of at least the 50 percent evaluation. The current 30 percent evaluation in effect for the veteran's service-connected psychiatric disorder contemplates a definite impairment of social and industrial adaptability. To receive a higher evaluation of 50 percent, the evidence must show considerable impairment of social and industrial adaptability. 38 C.F.R. Part 4 Code 9206 (1994). In Hood v. Brown, 4 Vet.App. 301 (1993), the United States Court of Veterans Appeals stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other terms were "quantitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment for the purposes of meeting the statutory requirement that the Board articulate "reasons and bases" for it decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a precedent opinion, dated November 9, 1993, the General Counsel of VA concluded that the term "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." O.G.C. Prec. 9-93 (Nov. 9, 1993). The Board is bound by this interpretation of the term "definite." 38 U.S.C. § 7104(C). With these considerations in mind, the Board will address the merits of the claim at issue. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1993). However, in this particular case, the findings from the veteran's most recent examination and medical treatment notes do not show a disability picture which would approximate the criteria for an evaluation in excess of 30 percent under Code 9206. On VA examination in November 1990, the veteran's complaints included mood swings with cloudy thoughts and hyperactivity, severe depression for the past six months, inability to concentrate, memory loss, uneasiness and feelings of being watched. He reported that since his discharge from service he continued to have periods when he lost track of time, and in the past had done such bizarre things as impersonating a police officer and a fireman. He stated that he often felt that he did not need medication and would not take it. Without his medication, he stated that he would become extremely disoriented and paranoid. The veteran also reported that he has had many jobs, but lost interest and just went home. He stated that he presently was not working and had not worked in many years, aside from occasional work for his brother-in-law, which was limited by his moods. He denied suicidal ideation, but reported that he took approximately 30 Prolixin tablets in order to cure his depression. He stated that this frightened him and he would not do it again. It was noted that he continued to be treated as an outpatient at the VA Mental Hygiene Clinic in Indianapolis, Indiana. On mental status examination, the examiner reported that the veteran was oriented and his memory was intact. His insight was considered fair and his judgment was considered currently intact although it was poor by history. His speech was normal. There was no psychomotor agitation or retardation. However, the examiner stated that it was obvious he had been agitated in the past. He denied current psychotic features. His mood was described as depressed and he had been prone to crying spells. His sleep was erratic. Concentration and memory had overall been good. The diagnostic impression was bipolar disorder, depressed. The examiner commented that the veteran's overall condition and prognosis were fair. A psychological assessment was also conducted. The psychologist reported that the veteran was functioning on an average level of intelligence which seemed commensurate with his premorbid pattern of behavior. The examiner further reported that although the veteran had exhibited strong paranoid thoughts in the past and had delusions of persecution, his present status did not exhibit these almost psychotic manifestations and he appeared to be in a state of remission. It was also noted that his depression had subsided and he was not immobilized as he had been in the past. The examiner concluded that his pattern seemed to be more toward explicit mood swings running the gamut from low of depression to high of extreme excitation. The diagnostic impression was bipolar disorder. Importantly, the veteran's most recent VA examination in December 1991 does not support a finding of considerable social and industrial impairment. Rather, the examination report indicates that his condition had improved. The veteran complained of occasional poor sleep and nightmares, stress, mood swings, confusion of words and anxiety. Significantly, he stated that he took care of his personal and financial affairs together with his wife. He also reported that he worked episodically in carpentry for his brother-in-law since his discharge from service until 1989, and that this work ended because his brother-in-law passed away. He further stated that he recently worked as a pizza delivery man in September 1991, and that he also plays guitar in a country band. Otherwise, he reported that he remains at home and cares for his two children. It is notable that he stated that he was not interested in finding work and would rather stay at home and raise his sons. The examination report indicates that on mental status examination the veteran was oriented and his language and speech were normal. He did not demonstrate any psychomotor agitation or bizarre behaviors. He described his mood and "up and down", but his affect was pleasant with no evidence of blunting or restriction. He stated that mood swings were his main problem. He was occasionally evasive, particularly when asked about his history of criminal charges. However, he did describe a history of manic behaviors which had resulted in multiple arrests for public indecency and indecent exposure. He denied suicidal or homicidal ideation and any prior suicide attempts. He likewise denied any ongoing auditory or visual hallucinations, although he stated that weird thoughts go through his head and that his thoughts get jumbled and confused. There was no evidence of paranoia or clouding of consciousness. Cognitive function was tested appropriately in all areas. His memory was intact in all phases. He could recall seven numbers forward and four numbers in reverse order without error. He could concentrate sufficiently to recite the months of the year backward and spell the word "world" without error. His general ability to do mathematical problems was also intact. He could make appropriate comparisons and contrasts and his general fund of knowledge was intact and appropriate for his age and education level. He could also interpret a simple proverb appropriately and his judgment to standard questions appeared intact. The diagnostic impression was schizophrenia, by patient history; schizo-affective disorder, bipolar type; and bipolar disorder, by history. The examiner commented that the veteran's symptoms were well-controlled with medication and that his current psychiatric condition was good with an excellent prognosis provided he continued medication and appropriate follow up. He was deemed as competent for VA purposes. The Board concludes that the objective findings of the psychiatrist on this examination support his assessment of the veteran's condition. In support of his claim, the veteran appeared at a personal hearing in September 1992. He testified that he undergoes psychiatric counseling once every three to four months, and that he was currently taking three types of medication for his condition which have side effects including fatigue, thirst, sweating and frequent urination. He also testified that he periodically had difficulty sleeping, periods of extreme highs and lows and periods of rage and anger. He stated that he is not able to function during his periods of depression, which occur perhaps four to five times per year or more and last for days at a time. During his hyperactive phases, he stated that he cleans the house constantly. He reported that he does not become disoriented. With respect to his family and social life, he testified that he has been married for two years to his third wife and that his second marriage had lasted for 13 years. He reported that he helps his son with his paper route. He also reported that he has some close friends, that he enjoys socializing, that he belongs to the American Legion and attends meetings approximately once a week, that he is a member of the Calvery Baptists Church, although he has not attended in the last five to six years, and that his hobbies include playing the guitar. In regard to employment, he testified that he had not been able to hold any one job for an extended period of time, although he did work for his brother-in-law on and off for years on a part- time basis. He attributed his problem with maintaining employment to loss of interest, problems with frequent urination and difficulty concentrating. Further, he reported that his last job was as a pizza delivery man in September 1991, which lasted only one week. Significantly, he stated that his last employer liked his work, but due to his duties at home he was unable to continue. He also testified that he graduated from the 12th grade and participated in a vocational rehabilitation program for two to three years. However, he stated that due to his lack of interest and inability to concentrate, he did not receive a degree. With respect to carpentry, he testified that there were some things that he knew of and would be able to do on his own; although he felt that no one would hire him due to his condition. He further testified that he had played in three country western bands during the past nine years which disbanded because the members felt they could not make a living in the profession. The veteran's wife testified that her husband does yard work, gets the children ready for school each morning, and has taken it upon himself to do the majority of the house work since he is not working. She testified that during his hyperactive phases, he cannot sleep, has nightmares and constantly cleans the house. She also stated that he goes through his manic depressive episodes approximately once per month, rather than three to four times per year, although some episodes are more severe than others. She reported that he was recently taken off his medication and cut his wrist in a suicide attempt, although he was not taken to the hospital. She also stated that she did not think he could hold a full-time job. The Board has also considered the veteran's complaints as to the inadequacy of his most recent VA examination. However, the examination report shows that the examination was both thorough and highly probative in that it produced valuable information to rate the veteran in accordance with the schedular criteria. The VA examination report discussed he veteran's appearance, psychiatric history and current symptomatology, psychiatric treatment, psychiatric medication, pertinent medical history, family and social history, as well as a mental status examination and detailed diagnostic impression. Further, the veteran does not have the requisite medical expertise to comment on such matters. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Following the hearing, the veteran submitted outpatient treatment reports dated from October 1990 to August 1992. On examination in March 1991, the examiner reported that his affect was shallow, thought was intact, and mood was pleasant and appropriate. The veteran stated that he was free of symptoms, not delusional or hallucinating, not suicidal or homicidal, and felt stabilized on medication. The diagnosis was paranoid schizophrenia by history. He stated that he wanted an appointment to have his medications refilled. In May 1991, the veteran reported that his sleep was "pretty good" and that his memory and concentration were "o.k." However, he did state that he had an increase in anxiety over the past few months, primarily during the morning and early afternoon. The examiner noted that he cares for his two sons, one of whom is disabled and requires assistance with activities of daily living. It was also noted that the veteran appeared somewhat obsessive compulsive. Again, the objective examination was essentially normal. Reports of August and November 1991 showed that the veteran was functioning well and had normal family problems. In April and August 1992, reports indicate that one of the veteran's medications was reduced and that this caused increased irritability and nervousness. His medication was accordingly adjusted. Notably, his wife's testimony concerning the frequency of his mood swings is not supported by these treatment notes. There were no manifestations of a disability which would warrant a rating in excess of 30 percent. Also of record is a VA hospitalization report dated in December 1992. The veteran reported that he had not been doing well on a new medication and stopped taking it two days earlier due to muscle stiffness and jumbled thoughts. He requested admission to be stabilized on another medication. He stated that he had been increasingly depressed lately and noted a decreased appetite. On admission, he was calm and cooperative, although his mood was described as angry and depressed. His speech and motor activity were within normal limits. His affect was somewhat anxious. No delusions were noted and he denied homicidal or suicidal ideation. He also denied perceptual disturbances. He was oriented and his memory was intact. He was judged to be of average intelligence and was able to abstract. No looseness of association, flight of ideas or pressured speech were noted. Judgment and insight were fair. The veteran's mood improved after a brief period of hospitalization. His affect was bright and he continued to deny suicidal or homicidal ideation. He also stated that he had slept very well on the prior evening. At the time of his discharge, he was stable and competent. The Board notes that the claims file indicates a history of steady material improvement in the veteran's psychiatric disorder. Although the recent examinations show that the veteran does experience some anxiety and mood swings for which he takes medication, there is no indication to support a finding of considerable social and industrial impairment. Rather, his most recent medical records note few psychiatric abnormalities and minimal impairment. The reports show that his condition is essentially in remission and well-controlled by medication. He continues to be seen on an outpatient basis and is currently receiving medication which has produced a favorable response and reduction in his symptoms. In fact, reported exacerbations of his symptoms appear to be brought on by his failure to take his medication. Significantly, on his most recent VA examination, he was described as competent and his condition was described as good, with an excellent prognosis provided he continues with his medication and appropriate follow-up. These findings show an improvement over the prior examination. In addition, the veteran's reports of a poor work history are not supported by the psychiatric disability picture. 38 C.F.R. § 4.130 (1994). In particular, his condition has been in remission since approximately April 1981 and the file shows that he does have the ability to work at least part-time. His mood swings would not prevent him from working. He has reported that he worked episodically in carpentry for his brother-in-law since his discharge from service until 1989, and that this work ended only because his brother-in-law passed away. It also appears that he has played in various country western bands which have only disbanded due to other members' lack of interest. Although the veteran indicated that his most recent boss liked his work, he voluntarily left his job a pizza delivery man because it interfered with his duties at home. Further, his lack of employment is not shown to be due exclusively to his psychiatric condition. It should be noted that at his most recent VA examination he stated that he was not interested in work and would rather remain at home to care for his sons, one of whom is disabled. He also reported that he had a 12th grade education and had attended a vocational rehabilitation program, but had quit because of lack of interest. Further, the veteran's testimony shows that he is able to take part in the activities of daily living. Significantly, his psychiatric disorder does not prevent him from taking care of himself, his home or his children or from engaging in various recreational activities. The Board is left with the overwhelming impression that the disorder has improved. Accordingly, the preponderance of the evidence is against the veteran's claim, and no more than a definite impairment, meaning "distinct, unambiguous, and moderately large in degree" but less that "rather large", may be associated with his service-connected disability. This case does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1)(1994). Any failure of the RO to refer the case to the Director of the Compensation and Pension Service for extraschedular consideration was harmless error. ORDER Entitlement to restoration of a 50 percent rating for a psychiatric disorder is denied. JAN DONSBACH 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.