Citation Nr: 0003992 Decision Date: 02/15/00 Archive Date: 09/08/00 DOCKET NO. 94-04 997 DATE FEB 15, 2000 On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for paranoid schizophrenia currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stanley Grabia, Associate Counsel INTRODUCTION The veteran served on active duty from February 1951 to June 1951, and March 1953 to March 1955. He also served on active duty from May 1955 to November 1955, for which he received an undesirable discharge. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a rating decision from the St. Petersburg, Florida, Regional Office (RO). In January 1996, the case was remanded for further development. That action was accomplished, and the case was returned to the Board. A hearing was held at the Board in Washington, DC, in November 1997, before Michael D. Lyon, who is the Board member rendering the determination in this claim and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. 7102 (West 1991 & Supp. 1999). A transcript of the hearing has been included in the claims folder for review. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the issues addressed by this decision has been obtained by the RO. 2. The veteran's schizophrenia is productive of symptoms causing no more than considerable impairment of social and industrial adaptability, and reduced reliability. 3. The veteran has not been shown to have either active psychotic manifestations of such extent as to produce severe impairment of social and industrial adaptability, or an occupational impairment with deficiencies in most areas as a result of his service- connected schizophrenia. 2 - 4. There are no extraordinary factors resulting from the service schizophrenia disorder productive of an unusual disability picture such as to render application of the regular schedular provisions impractical. CONCLUSION OF LAW The criteria for a current increased disability rating in excess of 50 percent for a schizophrenia, paranoid is not warranted on either a schedular or extraschedular basis. 38 U.S.C.A. 1155 (West 1991); 38 C.F.R. 3.321(b)(1), 4.7, Part 4, Diagnostic Codes (DC) 9203, 9440 (1996) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. 5107(a). See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the veteran has presented a claim which is not implausible when the contentions and the evidence of record are viewed in the light most favorable to such claim. Generally, an allegation that a service- connected disability has increased in severity is sufficient to establish well groundedness. Proscelle v. Derwinski, 2 Vet. App. 629, 631-32 (1992). The evidentiary assertions of the veteran are presumed credible for making this determination. Likewise, the Board is satisfied that all relevant facts have been properly and sufficiently developed, such that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. 5107(a). Specifically, it has been contended that prior remand development was not fully accomplished. The Board does not agree with this assertion. While every question in the remand may not have been explicitly addressed, the clinical findings are such as to make necessary conclusions therefrom. The examinations are in essential - 3 - agreement as to most significant matters. It is unclear that any further development could be undertaken which would likely alter the outcome in this case. 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 (1994); Gilbert v. Derwinski 1 Vet. App. 49 (1990). In the evaluation of service-connected disabilities the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. 4.1, 4.2, 4.10. Where, as in this case, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation (See 38 C.F.R. 4.2, 4.41), the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, all pertinent evidence in the appeal period will be considered. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. 1155; 38 C.F.R. Part 4. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. 4. 1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. 4.7. When, after - 4 - careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. 4.3. Current VA regulations also provide that if the schedular rating criteria are inadequate, an extraschedular evaluation may be assigned commensurate with the impairment of average earning capacity if there is 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) (1999). While this appeal was pending, the applicable rating criteria for mental disorders were amended effective November 7, 1996. See 38 C.F.R. 4.125 et seq. (1999). The timing of this change in the regulations requires the Board to first consider whether the amended regulation is more favorable to the veteran than the prior regulation, and, if so, the Board must apply the more favorable regulation. VAOPGCPREC 11-97; Dudnick v. Brown, 9 Vet. App. 397 (1996) (per curiam); Karnas v. Derwinski, 1 Vet. App. 308 (1991). In this case, the Board finds that there is no basis upon which to conclude that the earlier version. of the pertinent regulations is more or less favorable to the veteran. Indeed, when applied to this individual case, there appear to be no significant substantive differences between the two versions. As discussed below, a rating in excess of 50 percent is not warranted under either applicable criteria. Under the old regulations, in effect until November 6, 1996, a 50 percent evaluation was warranted for schizophrenia with considerable impairment of social and industrial adaptability. A 70 percent evaluation required lesser symptomatology than a 100 percent evaluation, such as to produce severe impairment of social and industrial adaptability. Finally, a 100 percent evaluation required active psychotic manifestations of such extent, severity, depth, persistence, or bizarreness as to produce total social and industrial inadaptability. 38 C.F.R. 4.132, DC 9203 (1996). The severity of a psychiatric disability was based upon actual symptomatology, as it affected social and industrial adaptability. Two of the most important determinants of disability were time lost from gainful work and decrease in work efficiency. Great emphasis was placed upon the full report of the examiner, descriptive of actual symptomatology. The record of the history and complaints was only preliminary to the examination; the objective findings and the examiner's analysis of the symptomatology were the essentials. 38 C.F.R. 4.130 (1996). The principle of social and industrial inadaptability as the basic criterion for rating disability for the mental disorders contemplated those abnormalities of conduct, judgment, and emotional reactions which affected economic adjustment, i.e., which produce impairment of earning capacity. 38 C.F.R. 4.129 (1996). Under regulations in effect since November 1996 (and considered by the RO), a 50 percent evaluation will be assigned for schizophrenia which produces 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted when occupational and social impairment is present with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships. - 6 - Finally, a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. DCs 9203, 9440. Historically, the RO denied service connection for schizophrenia, paranoid in 1959. The veteran made several attempts to reopen his claim. In January 1989, he was awarded a nonservice connected pension, including a 40 percent non-service connected rating for paranoid schizophrenia. By a Board decision in May 1991, service connection for paranoid schizophrenia was granted. A rating determination in July 1991 established a 50 percent disability rating. This rating has remained in effect since that time except for periods of temporary total ratings based on hospitalizations. In January 1996, the Board remanded the veteran's reopened claim for additional development and a VA examination. In a VA examination in March 1996, the veteran stated that his previous psychiatric admissions were too numerous to write on a piece of paper. He listed several medications he was currently taking. He claimed to have a seizure disorder which the examiner noted did not appear to constitute a seizure disorder. He spent his days in the house. Depending how he felt when he woke up determined if he would leave his house. In the past he attended a day treatment program for 1 1/2 years. He started going again about 2 weeks ago. He stated that his memory was not good. He did not get along with people, and did not trust them. He has been depressed since his wife died. He drinks alcohol to pass put, usually drinks about 1/2 fifth and sleeps 5 to 6 hours. His list about 17 different prescriptions he was taking. - 7 - The examiner noted, he could do mathematical calculations, and was aware of who the president was. He appeared to have selective memory. The examiner opined that most of the veteran's symptoms were from his medications and the aging process. He was determined to be competent for VA purposes. The diagnoses was dysthymia; alcoholism; passive aggressive personality; asthma; hypertension; diabetes; osteoporosis; and heart disorders. The Global Assessment of Functioning (GAF) score was 60. Another VA examination was held in July 1996. The veteran denied a family history of mental illness or alcohol abuse. He was not sure how many times he had been married, but had 13 children in and out of wedlock. He now lived alone, and spends most of the time at home. He listens to the radio and occasionally TV. He attends church regularly, and was active in AA and NA meetings. He often plays cards with his friends at the VA clinic. He claimed to have been self employed for most of his life. He has not worked since 1987, claiming, "I have a lot of sickness." He took at least 12 different medications. He admitted to extensive abuse of alcohol, cocaine, LSD, PCP, crack, heroin, and morphine, but denied intravenous use. He hears voices which are usually derogatory, telling him he is not worth living, and should kill himself He often has bouts of depression. The examiner noted the veteran was appropriately dressed, and clean. There was no abnormality of posture, or gait. He had fairly good eye contact, and was cooperative. Mood was stable and affect was appropriate. He admitted auditory but denied visual hallucinations. Some degree of paranoia was obvious. Cognitive functions of orientation to time, place and person were intact. Memory was impaired for recent and remote events. He denied current homicidal and suicidal ideation. The examiner noted that the veteran's history was consistent with a diagnosis of paranoid schizophrenia. The veteran's history of alcohol and substance abuse appeared to have been in remission only for a few months. The examiner opined that his ability to be gainfully employed was mostly related to physical problems - 8 - and not so much to his emotional problems. The current assigned GAF of 60 was based on the fact that he was fairly social, in remission with his alcohol and substance abuse, and he was active in AA and NA meetings. He was considered competent. In November 1997, a hearing was held before the Board in Washington. DC, in which the veteran testified, in essence, that he still hears voices on occasion, and has hallucinations. He could not identify what his symptoms of schizophrenia were, but indicated he had severe problems, and noted being on medications for quite some time. He was currently attending a VA mental clinic 3 times a week, and had been taking psychiatric medication since approximately 1994. Since the service, he reported he had been employed in up to 50 jobs. The longest being about 6 months. He was usually fired for some bizarre behavior. He was last employed in 1985 or 1986. He was last hospitalized for psychiatric reasons in 1994 coinciding with the time he began taking psychiatric medications. He denied living alone and stated that his son lived with him. The case was remanded in January 1998 for a social and industrial survey, as well as another VA examination. A social and industrial survey was performed in April 1998. The veteran indicated he had been married for 30 years, and divorced in 1987. He had 6 children with his wife and 7 others by outside affairs. He continued to maintain a close relationship with his wife until her death in 1993. After service he was arrested for armed robbery and spent 3 years in prison where he received some psychiatric treatment. He was released in 1958 and did day labor, as well as hustled on street comers. From 1960 to 1990, he used and sold drugs. He described a long history of drug and alcohol abuse. He used and sold heroin, Quaaludes, cocaine, barbiturates, and amphetamines, and was also addicted to prescription painkillers. He denied any current drug or alcohol use, having stopped after being diagnosed with hepatitis C. He has begun attending church. In 1990, he returned to Florida, and made no further attempts to find employment. - 9 - He reported a long history of psychiatric treatment. He was treated by a Dr. Morias in Newark from 1973 to 1988. Dr. Morias has refused to release his records for non-payment of bills. (It is noted parenthetically that these records would not be particularly useful in rating the current disability, as they are from prior to the appeal period.) The social worker noted the veteran to be alert and oriented. Initially he was very guarded and gave very little factual information. He lived in a small unkempt apartment, which had junk and trash scattered everywhere. His 33-year-old son lived with him occasionally. A typical day was spent in bed watching TV. He gets out of bed when the sun goes down. He only goes out for his numerous VA clinical appointments (diabetes; primary care; mental health; dental; and renal clinics). He attends the day treatment program at the VA occasionally to socialize with other veterans. He was not officially enrolled, because he could not tolerate the mandatory hours on a regular basis. He did attend church nearby regularly. He was currently dating, and maintained a good relationship with his children. The veteran was afforded a VA examination by two VA examiners in September 1998. The Board notes that while the examiners' observations and opinions differ in some respects, neither examiner's observations nor opinion indicates more than a moderate schizophrenic disability, or disablement such as to warrant a higher rating. The first examiner noted the veteran complained of numerous problems. He was having significant distress in his personal life. He was extremely depressed and angry at himself and others. He stated that he had crying spells, and nothing worked for him. He indicated suicide attempts but did not specify when they had occurred. He was afraid to leave his house as he might hurt somebody. He was extremely paranoid, and afraid people were out to get him, and he would get them first. In May 1998, he was put on probation for significantly hurting someone. He had to attend anger management classes, but he did not feel he needed this He drank as much as he could, although he did not state how much that was. He would get the shakes after he stopped drinking. He complained of memory loss and - 10- chronic suicidal ideations. He was very ambivalent about wanting to die at someone else's hand, as he could not go to heaven if he killed himself. However he felt free to go out and hit other people, get into fights, and do violence to them. The examiner noted that the veteran was dressed in dirty clothes, and had an odor. He wore flip-flops without socks, and had a stooped posture. He appeared apathetic at times, alternating with anger. He was very suspicious. Eye contact was poor and evasive. Mood was depressed and affect blunted. He had paranoid delusions of others being out to hurt him. He admitted to auditory hallucinations. Speech was without looseness of association, or flight of ideas. However he was extremely circumstantial and mildly tangential. He was oriented x 4, with poor to fair insight and judgment. Memory was subjectively impaired. He would not cooperate for formal mental status testing. The veteran was unable to provide concrete answers, and was evasive. While the examiner opined that neuropsychological testing was appropriate, the veteran was not agreeable to being admitted to the VA hospital to undergo such testing. The diagnoses was axis I- Rule out (R/0) dementia; dysthymia; a history of paranoid schizophrenia; and, alcohol abuse. Axis II- indicated cluster B personality traits. Axis III - hypertension, diabetes, and, hepatitis C. Axis IV- stressors were financial, legal, and physical difficulties; his chronic mental illness; and, poor family support. The current GAF was noted to be 40. The second examiner noted normal dress and hygiene. The veteran was mildly psychometrically agitated, belligerent, and angry at times. He had a full range of affect. Thought processes were goal oriented without looseness of association or flight of ideas. He reported auditory hallucinations telling him to hurt people who bothered him. He also stated that sometimes he felt like blowing up the VA, but denied any specific plans. There were no bizarre or paranoid beliefs noted. He was alert and oriented x 4. He could register 3 objects and recall one after five minutes. He could not reproduce past presidents. He had difficulties with praxis, and gave concrete interpretations to proverbs. The diagnoses was Axis I- dementia; Axis II- - 11 - suspected cluster B personality disorder; Axis III- hypertension; diabetes. Axis IV- stressors were financial and legal problems. A GAF of 40 was assigned. The examiner noted that it was unclear whether the veteran had the capacity to handle his own affairs. He concurred that further psychiatric testing was needed. The examiner added that there was very little evidence shown of psychosis. He opined that the veteran did not meet the criteria for schizophrenia, nor did he appear to have any residual syndrome of schizophrenia. The Board notes in November 1998, after receiving the results of the following psychological testing results, the examiner amended his diagnosis to schizophrenia in partial remission. Finally, in November 1998, the veteran was evaluated by VA psychology department personnel. The examiner noted that the veteran apparently displayed considerable difficulties upon formal psychiatric mental status testing, perhaps indicative of a dementing process. The examiner noted his activities were; limited by his ongoing pain, and limited financial resources. He reported difficulty maintaining his complex medical regimen, in part, because he tended to deny the gravity of his medical disorders. He denied significant mental status changes per se, but became quite inattentive when stressed, in pain, or bored. At such times he appeared cognitively compromised. The examiner opined that the evidence failed to provide evidence of a dementing process. Rather he failed to register information adequately when under stress or distracted. This resulted in apparent memory failures. The results of the testing indicated the veteran was an articulate reasoned man, subject to a wide range of psychiatric and characterological difficulties. The examiner further noted the veteran was subject to several important physical risk factors as well as his history of substance abuse, as such he was prone to developing dementia. Outpatient medical records of file are very extensive and duplicative. These show on-going treatment for numerous disorders, including both physical and mental disorders. While these medical records indicate a substantial level of disabilities, - 12 - none of the records indicate a greater level of disability entirely due to his service connected paranoid schizophrenia disorder. After reviewing the applicable rating criteria in effect both prior to and since November 7, 1996, and the reported objective findings and subjective complaints, the Board is of the opinion that the veteran's psychiatric symptomatology does not produce severe impairment of social and industrial adaptability. Significantly, a 70 percent psychiatric evaluation, under the new criteria, requires impairment with deficiencies in most areas, including family relations, judgment, thinking, mood, with such symptoms as suicidal ideation, obsessive rituals, intermittent illogical, obscure, irrelevant speech, spatial disorientation, neglect of personal appearance and hygiene, inability to establish and maintain relationships, etc. While the veteran certainly exhibits some of these deficiencies, the most recent VA examinations reveal that the veteran was oriented with fluent speech and was without flight of ideas or looseness of association. Further, he was cooperative, goal oriented, and had coherent speech. Thus, he appears to communication well and had no gross impairment in thought process. In addition, there is no evidence of grossly inappropriate behavior. The veteran has always been noted to be cooperative and oriented. While he is described as angry, irritable, grossly inappropriate behavior has not been shown. Next, although there is a report of remote suicide attempts, some complaints of suicidal thoughts, and reports of physically hurting others, there is no evidence that he is in persistent danger of hurting self or others at this time. Moreover, there is no evidence that he experiences an inability to perform activities of daily living due to his psychiatric disability. Rather, the limits on his abilities to function appear to be due to his numerous physical disabilities, numerous prescribed medications, and polysubstance abuse issues, and not his service connected psychiatric condition. Next, he has not been shown to be disoriented to time or place, have an impaired memory for names of relatives, his own occupation, or his own name. Specifically, treatment records show that he is oriented, cooperative, and he appears to be a good historian. In addition, he has attended a hearing before the undersigned Member of the Board, and presented his claim in a reasonable and appropriate way. While the - 13 - Board notes that the veteran has reported a history of certain psychiatric deficiencies, they appear to be related more to his long history of extensive polysubstance abuse, and not to his service connected schizophrenia. In any event they appear to be of lesser symptomatology than necessary for a schedular evaluation greater than the 50 percent schedular evaluation currently in effect. Finally, the veteran's assigned GAF was noted to be 40, which would indicate some impairment in reality testing or communication (e.g. speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g. depressed man avoids friends, neglects family, and is unable to work). This finding is not fully consistent with the overall psychiatric picture presented in the claims file but, nonetheless, supports no greater than a 50 percent evaluation under DC 9203. The Board is sympathetic to the veteran's physical problems, there is no basis on which to grant a higher rating for his service-connected psychiatric disability. Finally, consideration has been given to an extraschedular increased rating under the provisions of 38 C.F.R. 3.321. The evidence does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Specifically, there has not been a demonstration of marked interference with employment specifically attributable to the service- connected paranoid schizophrenia disorder or frequent periods of hospitalization due to that disorder so as to render impractical the application of the regular schedular criteria. Therefore, considering the medical evidence of record, the Board finds that, under the criteria of Diagnostic Code 9203, effective November 7, 1996, and under the criteria of Diagnostic Code 9203, effective prior to November 7, 1996, and even considering the criteria of 38 C.F.R. 4.7, the preponderance of the evidence is against a rating in excess of 50 percent for paranoid schizophrenia. Moreover, the evidence is not so evenly balanced as to allow for the application of reasonable doubt. 38 U.S.C.A. 5107(b). ORDER Entitlement to an increased evaluation for schizophrenia, paranoid, currently evaluated at 50 percent disabling, is denied. MICHAEL D. LYON Member, Board of Veterans' Appeals