BVA9500374 DOCKET NO. 93-05 802 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an evaluation in excess of 50 percent for schizophrenia. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from January 1944 to October 1945. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from an August 1992 rating decision of the Buffalo, New York, Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which denied entitlement to an evaluation in excess of 50 percent for service- connected schizophrenia. The Board's decision is limited to the issue developed for appellate review. In his appeal for an increased rating, the veteran noted that he had not worked since 1983. It is unclear from the record whether this represents an intent to reopen a claim for entitlement to a total rating based on individual unemployability due to service-connected disability, and/or a permanent and total rating for pension purposes. If so, the appellant should contact the RO, and the RO should then take appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he is entitled to an evaluation in excess of 50 percent for his service-connected psychiatric disability. He asserts that his schizophrenia has increased in severity as evidenced by the recent medical evidence of record. His representative has joined in these contentions. 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 appellant'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 appellant's claim for entitlement to an evaluation in excess of 50 percent for schizophrenia. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appeal has been obtained by the RO. 2. The appellant's schizophrenia is currently manifested by subjective complaints of anxiety, insomnia, depression, and social isolation. The recent objective clinical evidence demonstrates a diagnosis of schizophrenia, residual type, with symptomatology consisting of depression, anxiety, and some memory loss. 3. There are no complaints of nor any evidence indicating active psychotic manifestations, such as hallucinations or bizarre behavior at any time in the recent past. 4. The appellant's schizophrenia produces no more than considerable impairment of social and industrial behavior. CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent for schizophrenia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.129, 4.130, 4.131, 4.132, Part 4, Diagnostic Codes (DC) 9201-9205 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we find that the appellant's claim for an increased evaluation for a psychiatric disorder is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), in that he has presented a claim which is plausible. This being so, we must examine the record to determine whether the VA has a further obligation to assist in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991). After reviewing the record, we are satisfied that all relevant facts have been properly developed and that no useful purpose would be served by remanding the case with instructions to provide additional assistance to the appellant. The evidentiary record includes a completely documented history of the appellant's service-connected disability since 1945, as well as a June 1992 statement from Bernard Schwartz, Ph.D., the appellant's psychologist for over 15 years, and a July 1992 VA psychiatric examination. Therefore, the Board concludes the evidence currently of record adequately details the entire history of the appellant's service-connected psychiatric disorder, particularly as it affects the ordinary conditions of daily life, as required by provisions of 38 C.F.R. §§ 4.1, 4.2, 4.10 and other applicable provisions. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1993); Gilbert v. Derwinski 1 Vet.App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings which is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1993). Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7 (1993). In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the appellant, as well as the entire history of the appellant's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Schizophrenia is evaluated under Diagnostic Codes 9201 through 9205. 38 C.F.R. Part 4, § 4.132 (1993). Under current regulations, a 50 percent evaluation for schizophrenia, any type, may be assigned upon a showing of considerable impairment of social and industrial adaptability. With lessor symptomatology than that required for a 100 percent evaluation producing severe impairment of social and industrial adaptability, a 70 percent evaluation is warranted. Where there are active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability, a 100 percent rating is substantiated. Id. Pursuant to the case of Hood v. Brown, 4 Vet.App. 301 (1993), the General Counsel of the VA issued a precedent opinion interpreting the terms "mild," "definite," and "considerable," as applied in 38 C.F.R. § 4.132 (1993). See O.G.C. Prec. 9-93, 59 Fed. Reg. 4753 (1994). In that opinion, the term "considerable," the criterion for a 50 percent evaluation, was defined as "rather large in extent or degree." Id. The VA, including the Board, is bound by such interpretation. 38 U.S.C.A. § 7104(c) (West 1991). With this considerations in mind, the Board will address the merits of the claim at issue. The evidentiary record reflects that the appellant was diagnosed with schizophrenia, paranoid type, during service, resulting in a early medical discharge to such effect. Service medical records indicate that the appellant was administered electroconvulsive therapy for such disability, resulting in massive memory loss. By a rating decision dated in October 1945, service connection for schizophrenia, paranoid type was granted, with a 100 percent disability evaluation assigned. Due to a gradual decrease in the severity of relevant symptomatology, evaluations for the appellant's schizophrenia were assigned as follows: 100 percent from October 1945 to February 1946; 50 percent from February 1946 to February 1947; 30 percent from February 1947 to March 1948, and 10 percent from March 1948. In May 1964, the appellant reopened his claim for an increased evaluation for schizophrenia. Pursuant to a July 1964 VA examination indicating a diagnosis of schizophrenia, catatonic type, with an increase in severity of depression and anxiety, the appellant was assigned a 30 percent evaluation in an August 1964 rating decision. The appellant then reopened his claim in August 1984 for an increased evaluation for schizophrenia. A January 1985 VA examination indicated that the appellant was in a state of "emotional turmoil" due to an exacerbation of schizophrenic symptomatology following a 1983 forced retirement related to a cardiac disability. By a rating decision dated in March 1985, the appellant was assigned a 50 percent evaluation for such service-connected disability. The appellant reopened said claim in June 1992. Recent clinical evidence of record includes a June 1992 statement from Dr. Schwartz and a July 1992 VA psychiatric examination. Dr. Schwartz indicated that he had been treating the appellant on an outpatient basis, as authorized by the VA, approximately once a month for the last 15 years. He further stated that the appellant was forced to retire in 1983 as a VA pharmacist due to massive cardiac symptoms which disabled him, resulting in an increase in depression, anxiety, unpleasant obsessions and phobic reactions. He noted that although the appellant no longer suffered from acute schizophrenic symptomatology, his function was impaired by psychological and residual schizophrenic factors which had been greatly aggravated by his physical limitations. Finally, he concluded that it is his opinion that the appellant is totally disabled from both the psychiatric and physical standpoints. It was noted that the veteran had largely recovered from his in-service psychotic episode. Subsequently, during a July 1992 VA psychiatric examination, the appellant complained of insomnia, paranoia, lack of concentration, depression, isolation, and occasional suicidal ideations, as well as memory loss due to in-service electroconvulsive therapy. Upon examination, the examiner indicated that the appellant's emotional state was consistent with depression, and that he did not suffer from any hallucinatory experiences. He further noted that the appellant was well groomed, spoke in a low voice, was coherent and relevant. Although his memory recall and retention were poor, the examiner found the appellant was well oriented in all three spheres, had preserved insight, good judgment, and seemed competent to manage his benefit payments. The examiner concluded that such symptoms were consistent with a diagnosis of schizophrenia, residual type. The objective clinical evidence simply does not support an evaluation in excess of 50 percent for the appellant's service- connected psychiatric disorder. There is no objective evidence of, nor any complaints of active psychotic manifestations of any sort nor have there been for many years. Furthermore, there is no objective clinical evidence to support a finding that the appellant suffers from more than considerable social and industrial impairment due to his service-connected psychiatric disability, as the record reflects that he is currently married, and is retired largely due to non service-connected disabilities. In reaching this decision, consideration has been given to the veteran's actual symptomatology as set out above. The severity of the disability is based upon actual symptomatology as it affects social and industrial adaptability. Two of the most important determinants of disability are time lost from gainful work and decrease in work efficiency. 38 C.F.R. § 4.130. In that regard, it is noted that the veteran receives treatment approximately 1 time per month, and has had no recent hospitalizations for his schizophrenia. In evaluating psychotic disorders it is necessary to consider, in addition to present symptomatology or its absence, the frequency, severity, and duration of previous psychotic periods. Id. In this case, no recent psychotic periods have been evidenced. Dr. Schwartz has noted that the veteran has not had any recent psychotic episodes. It is concluded that the record shows that the veteran's schizophrenia has been well controlled in past years. He has shown increasing concerns, associated in part with his physical problems, and this was recognized in 1985 when his rating was increased. The current findings continue to reflect essentially the same concerns. Bizarre behavior and psychotic episodes have not been demonstrated based on the actual symptoms and the recorded history available to the Board. In addition, there is no evidence of record of significant or marked interference with daily activities or frequent hospitalizations attributable to the appellant's psychiatric disorder. As discussed above, the appellant is currently married, and is retired. Furthermore, the record reflects that the last hospitalization related to his service-connected disability was in 1964. Thus, the Board does not find that this is such an unusual or exceptional disability picture as to render the provisions of the rating schedule inadequate, and therefore warrant an extraschedular evaluation. 38 C.F.R. § 3.321(b) (West 1993). Since the preponderance of the evidence is against allowance of this issue, the benefit of the doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b) (West 1991). ORDER Entitlement to an evaluation in excess of 50 percent for schizophrenia is denied. MICHAEL D. LYON 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.