BVA9501046 DOCKET NO. 93-08 860 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an increased (compensable) evaluation for schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Anthony D. Dokurno, Associate Counsel INTRODUCTION The veteran performed active military service from September 1952 to October 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied an increased evaluation for schizophrenia. REMAND Under 38 U.S.C.A. § 5107 (West 1991), a person who submits a claim to VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his or her claim is well-grounded. If the claimant meets this burden, VA is obligated to assist in developing the facts pertinent to the claim. A well-grounded claim is one that is plausible, that is, meritorious on its own, or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). There must be more than a mere allegation. The claim must be accompanied by evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Where the issue is factual in nature, e.g., whether an incident occurred during service or whether a clinical symptom is present, competent lay testimony may constitute sufficient evidence to establish a well-grounded claim. In this case, the veteran's service medical record confirms that during his active service in Korea he experienced a significant schizophrenic episode followed by in-service psychiatric hospitalization with electroconvulsive therapy. He and his representative have also submitted information indicating that the veteran's non-compensably rated condition has worsened in recent years. The Board therefore concludes that the veteran's claim for an increased rating is well-grounded. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). In determining an appropriate evaluation for a disability, the VA applies a schedule of percentage ratings of reduced earning capacity in civil occupations due to specific injuries or combinations of injuries. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1993). A proper rating of a veteran's disability contemplates its history and must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. §§ 4.1, 4.2 (1993). When evaluating a disability, any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3 (1993). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates that rating's criteria . Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (1993). Separate diagnostic codes identify the various disabilities. The veteran is currently non-compensably rated under 38 C.F.R. § 4.132, Diagnostic Code 9202 (1993), catatonic schizophrenia. A 100% evaluation is provided for catatonic schizophrenia if there are active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. A 70% percent evaluation is assigned if lesser symptomatology produces severe impairment of social and industrial adaptability. A 50% evaluation is assigned if social and industrial impairments are considerable. A 30% evaluation is assigned if there are definite social and industrial impairments. If the impairments are mild, a 10% evaluation is assigned. If the psychosis is in full remission, the disorder is noncompensably rated at 0%. In Hood v. Brown, 4 Vet.App. 301, 303-304 (1993), the Court 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 purposes of meeting the statutory requirement that the Board articulate "reasons or bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a precedent opinion, dated November 9, 1993, the General Counsel of the VA concluded that "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.A. § 7104(c). The veteran's service medical record contains his pre-induction physical, in which the examiner recorded that the veteran had an S-2 profile with "mild enuresis" and "inadequate personality," but nevertheless found him qualified for service. In Korea in May 1953 the veteran exhibited peculiar behavior for approximately 10 days, such as saying he was going outside to take pictures at night though he did not have a camera. He was admitted to a medical holding company shortly thereafter, where he appeared out of contact, with flat affect, and gave inappropriate answers to the few questions he answered. He was placed on a closed ward, where he appeared to hallucinate (though without confirming verbalizations) and spontaneously quoted biblical phrases. At the medical holding company, he was diagnosed as having experienced an acute, "moderate", catatonic schizophrenic reaction, manifested by partial mutism, flat affect, confusion, a biblical trend, and one occasion of assaultiveness. Shortly thereafter, the veteran was transferred to another military medical facility, in the United States. According to other entries in his service medical record, the veteran smelled fumes which were not actually present and wandered about the ward appearing confused and wondering aloud why he was there. Another June 1953 clinical record reveals that the veteran exhibited great difficulty in the Picture Arrangement test, which the examiner believed implied some deterioration in social facility and a possibly incapacitating personality disorder. The examiner summarized the veteran's personality testing as appearing to reveal an active schizophrenic process, probably catatonic in nature. The examiner also stated that the veteran gave evidence of an active, incapacitated psychotic process in which his facility and adaptation to reality and his intellectual functioning were markedly impaired as a consequence of the personality disorder. He also remarked that the veteran's low intelligence test scores may only have reflected distortions attributable to a severe psychosis. The veteran's service medical record also reveals that he received a series of 15 electroconvulsive therapies, from June to July 1953. Records document that after the first, he became cheerful, in good contact, and appeared almost euphoric. After 10 sessions, however, the veteran had reverted back to the condition he had been on admission, except that his eyes appeared less "empty." By the end of the series, he appeared to be doing well and was eventually transferred to an open ward and allowed passes to leave the institution. He was medically discharged in October 1953, with a finding that he was unfit for further military duty. The final diagnosis was schizophrenic reaction, catatonic type, acute, severe. The veteran's condition was described as "markedly improved." After discharge, the veteran was granted a 10% evaluation for a nervous disorder by a January 1954 VA rating decision. In January 1955 the veteran appeared for a VA psychiatric examination, exhibiting no symptoms other than an occasional headache. He reported no difficulty sleeping and denied any excessive worry or depression. According to his clinical history, he had married earlier that year and had resumed working steadily for his pre-service employer. The examiner commented that there was no demonstrable vocational or social disability at that time and no psychopathy, but noted that his prognosis was "guarded," because "under severe stress a recurrence (of an episode) may be expected." The diagnosis was "from history--schizophrenia, catatonic type, at present in complete remission." A February 1955 rating decision reduced the veteran's evaluation to 0%, listing as a basis "schizophrenic reaction, in complete remission." In March 1981 the veteran submitted a claim, alleging his disorder had worsened because of insecurity regarding employment. He was accorded another VA psychiatric examination shortly thereafter, in May 1981. The veteran reported that after service he had become employed at General Motors, but that they dismissed him when they discovered he had been discharged from service. He reported Chrysler Corporation's similar unwillingness to hire him because of his "nervous condition." He reported he had not had any psychiatric treatment since service, however. The diagnosis was schizophrenic reaction, in remission. The VA physician concluded that the veteran was sane, with minimal social and vocational impairment. The veteran was accordingly denied a rating increase for his condition, by a rating decision rendered shortly thereafter. The veteran again requested an increased rating in May 1992, alleging a worsening of his condition. He was accorded a VA examination in July 1992, in which he reported feeling depressed and anxious. He also reported occasionally hearing a male voice, but when questioned was vague about its content. Although the veteran exhibited appropriate dress and hygiene, the examiner did notice signs of some memory impairment. The VA physician diagnosed the veteran as manifesting "organic brain syndrome, mild, with mild hallucinations," but characterized his disability in the following manner: "Social and vocational--moderate to severe." (Emphasis added.) The doctor concluded by remarking, "(The veteran) is competent to handle a small amount of money. However, for a large amount of money he needs supervision." Despite the veteran's reported history of hallucinations, and the examiner's notation that his social and vocational impairments were moderate to severe, the October 1992 rating decision denied him an increased evaluation, concluding that the veteran exhibited no psychotic symptoms and that his in-service schizophrenic reaction "again appears to be in total remission." The rating decision also stated that the veteran denied feelings of hopelessness, worthlessness, or guilt, which the veteran contradicted in his statement of appeal, dated March 1993. There are two basic flaws in the May 1992 examination report. First of all, the report does not reflect that the examiner had the benefit of an opportunity to review the claims file to assess the history of the veteran's disability, nor does the report adequately reflect such a history as provided by the appellant or otherwise. This makes the examination inadequate for rating purposes under the provisions of 38 C.F.R. §§ 4.1, 4.2. Closely related to this problem is that the examination report does not indicate whether there is any relationship between the diagnosis of organic brain syndrome and the disorder for which service connection has been granted. While the RO is correct that service connection has not been granted for organic brain syndrome, where, as here, service connection has been in effect for a disorder diagnosed as schizophrenic reaction for many decades, and the diagnosis of schizophrenia does not even appear on the most recent examination report, a question is raised as to whether the provisions of 38 C.F.R. § 4.13 (1993) (change of diagnosis) apply. On this basis, the Board finds that the examination was also inadequate for rating purposes. Accordingly, in light of the foregoing and the Board's duty under 38 U.S.C.A. § 5107(a) to assist the veteran in the development of facts pertinent to his claim, the case is REMANDED to the RO for the following actions: 1. The RO should request the veteran to provide a comprehensive statement regarding all medical treatment received for any reason post-service. This statement should include not only those treatments the veteran specifically sought or received for schizophrenia or another psychiatric or nervous disorder, but all other reports which may contain incidental evidence of medical history, as well. The veteran should be advised to supply the necessary signed authorizations for the release of this medical information. He should also be informed that his cooperation is vitally important to a resolution of his claim and that his failure to cooperate may have adverse consequences. After the veteran has submitted written authorizations for the release of any further information, the RO should take appropriate action to secure copies of these records. 2. The RO should advise the veteran to complete a statement regarding his employment from May 1981 to the present, so that the effect of his disorder upon his industrial capability may be assessed. 3. The RO should schedule the veteran for a VA psychiatric examination. Before the examination, the veteran's claims folder is to be made available to the examiner for review. After a review of the file, the examiner should conduct the examination to determine the nature and etiology of any neuropsychiatric disability the veteran now has. Thereafter, the examiner should provide a Global Assessment of Functioning Scale (GAF) code and characterization, in accordance with the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Third Edition Revised. (DSM-IIIR) In order to permit the adjudicators, including the Board, to comply with Thurber v. Brown, 5 Vet.App. 119 (1993), the examiner is requested to include the definition of the score on the GAF scale under DSM-IIIR for the veteran and his representative. Further, if the current diagnosis is not schizophrenia, the etiological relationship, if any, between the veteran's currently diagnosed disorder and the service-connected disorder should be described. 4. The RO should review and determine the applicability of 38 C.F.R. § 4.13. 5. In light of any additional evidence obtained, the RO should readjudicate the issue listed on the title page, adjudicate any additional issues identified by the veteran, and issue a supplemental statement of the case if the benefits sought on appeal are not granted to the veteran's satisfaction. The veteran and his representative should be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise warranted. By this REMAND, the Board intimates no opinion regarding any final outcome. The veteran is not required to perform any action until he is notified by the RO. RICHARD B. FRANK 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).