Citation Nr: 0007774 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 96-03 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to restoration of a 50 percent evaluation for schizophrenic reaction, paranoid type. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant INTRODUCTION The veteran had active military service from February 1968 to September 1969. The veteran was awarded the Combat Infantryman Badge and the Vietnam Service Medal. This appeal arises from an adverse decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In March 1995, the RO proposed to reduce the veteran's rating for schizophrenic reaction from 50 percent to 30 percent. The 50 percent rating had been in effect from May 26, 1992. The veteran was notified and the reduction was enacted by a rating decision dated in June 1995. The 30 percent rating became effective October 1, 1995. The veteran noted his disagreement with that reduction by a letter dated in August 1995. As the 50 percent disability rating was not in effect for five years or more, the provisions of 38 C.F.R. § 3.344 (1999) do not apply. Faust v. West, No. 98-100 (U.S. Vet. App. February 15, 2000). A hearing was held in July 1996 in San Diego, California, before the undersigned, who is the member of the Board rendering this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). This case was before the Board in December 1996, at which time it was remanded for additional development. The RO completed the requested development to the extent possible, and the case is again before the Board for final appellate review. (The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268 (1998)). At his July 1996 hearing, the veteran seemed to indicate that he was unable to work. The matter of unemployability benefits was referred to the RO for appropriate action in the Board's December 1996 remand. Subsequently, the RO denied a total rating based on individual unemployability due to service-connected disabilities in a July 1999 rating decision. A January 2000 rating decision denied service connection for posttraumatic stress disorder. The veteran did not file a notice of disagreement with these decisions. Therefore, such matters are not before the Board at this time. 38 C.F.R. § 20.200 (1999). FINDING OF FACT The schizophrenic reaction is manifested by no more than occasional decrease in work efficiency and intermittent periods of inability to perform occupation tasks, due to such symptoms as depression, anxiety, memory loss, suspiciousness, and panic attacks, resulting in no more than definite social and industrial impairment. CONCLUSION OF LAW The schedular criteria for restoration of a 50 percent rating for schizophrenic reaction have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.130, Diagnostic Code 9203 (1999); 38 C.F.R. § 4.132, Diagnostic Code 9203 (1996). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board finds that the veteran's claim is well grounded within the meaning of the statutes and judicial construction. See 38 U.S.C.A. § 5107(a) (West 1991). When a veteran claims that he has suffered an increase in disability, or that the symptoms of his disability are more severe than is contemplated by the currently assigned rating, that claim is generally considered well grounded. Bruce v. West, 11 Vet. App. 405, 409 (1998); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). Upon the submission of a well-grounded claim, the VA has a duty to assist the veteran in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107. In the instant case, there is ample medical and other evidence of record, the veteran has been provided with several psychiatric examinations, and there is no indication that there are additional records that have not been obtained and which would be pertinent to the present claim. Thus, no further development is required in order to comply with VA's duty to assist as mandated by 38 U.S.C.A. § 5107(a). Relevant Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (1999). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2 (1999), which require the evaluation of the complete medical history of the veteran's condition. Where 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (1999). Effective November 7, 1996, during the pendency of this appeal, the VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating mental disorders. 61 Fed. Reg. 52695 (Oct. 8, 1996) (codified at 38 C.F.R. § 4.130). Because the veteran's appeal was filed before the regulatory change occurred, he is entitled to application of the version most favorable to him. See Karnas v. Derwinski, 1 Vet. App. 308, 311 (1991). In the instant case, the RO provided the veteran notice of both the revised and the old regulations. Thus, the Board finds that it may proceed with a decision on the merits of the veteran's claim, with consideration of the original and revised regulations, without prejudice to the veteran. See Bernard v Brown, 4 Vet. App. 384, 393- 394(1993). Before November 7, 1996, the VA Schedule read as follows: General Rating Formula for Psychotic Disorders: 100% Active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. 70% With lesser symptomatology such as to produce severe impairment of social and industrial adaptability. 50% Considerable impairment of social and industrial adaptability. 30% Definite impairment in social and industrial adaptability. 38 C.F.R. § 4.132, Diagnostic Code 9203 (1996). On and after November 7, 1996, the VA Schedule reads as follows: 100% Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of 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. 70% Occupational and social impairment, 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); inability to establish and maintain effective relationships. 50% 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 effective work and social relationships. 30% Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Codes 9203 (1999). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background Service connection for schizophrenic reaction, paranoid type was granted in a rating decision dated in November 1970. Based on the available evidence the RO assigned a 10 percent evaluation under diagnostic code (DC) 9203. A rating decision dated in October 1971 assigned a 30 percent evaluation for schizophrenic reaction, paranoid type based on the medical evidence of record at that time. The 30 percent rating was effective in August 1970. Thus, the veteran's current 30 percent rating is protected. 38 C.F.R. § 3.951(b) (1999). In August 1992, the veteran underwent a VA examination. Based on the findings at that examination, the RO, in a rating decision dated in January 1993, assigned a 50 percent evaluation for schizophrenic reaction, paranoid type. In April 1994, the veteran underwent another VA examination. The veteran reported that his mood was "fair" and that he was "pretty stable." Depression was denied. The veteran appeared well dressed and groomed. His speech was normal for rate, rhythm and prosody. His affect was full and not constricted. He reported that his sleep and appetite were normal. His thought form was occasionally circumstantial; for the most part, he was logical and goal directed. Thought content was significant for no suicidal ideation, no current paranoia, no current auditory hallucinations, and no current ideas of reference. He was perfectly oriented to person, place and time. His recall showed no defects and he performed calculations with no errors. Insight and judgment were good. Diagnostic studies were not considered indicated. The pertinent diagnosis was history of brief reactive psychosis. The current global assessment of functioning (GAF) score was 65. The examiner's opinion was that the symptoms of paranoia and auditory hallucinations that the veteran had experienced in the past were transient and most likely secondary to stress during service; since then, other symptoms of that nature had been secondary to substance abuse. The veteran provided testimony at a hearing at the RO in June 1995. The veteran stated that he was unhappy and that he had crying stages with depression. He testified that he became irritated and angry for no reason. Hearing transcript (T.) 2, 3. The veteran stated that he had lost his appetite and that he had memory problems. T. 6. Visual hallucinations were denied. T. 12. Following the personal hearing and based on the reported findings at the 1994 VA examination, the RO reduced the veteran's 50 percent rating to a 30 percent evaluation, in a rating decision dated in June 1995. The veteran presented testimony before a member of the Board in July 1996. The veteran expressed his dissatisfaction with the 1994 VA examination. T. 3, 21. The veteran testified that he had problems with his memory and with sleeping. T. 4. He stated that he was always pretty irritable and that he preferred not to be around people. T. 8. He indicated that he thought about suicide when he was depressed. T. 11. He testified that he has had both auditory and visual hallucinations. T. 12. He testified that he had these feelings all his life. T. 13. The veteran stated that he had not undergone treatment for several years. T. 28. The veteran was afforded a VA psychiatric examination in May 1997. In discussing his problems, the veteran did not talk in terms of hallucinations, delusions, paranoia, etc. The examiner noted that he reviewed the veteran's numerous psychiatric reports. The examiner opined that it would appear that the veteran had gone into remission from the psychotic processes and settled into a "burned out" individual who continued to have a significant cocaine and heroin problem. The veteran's subjective complaints did not include symptoms of anxiety, depression, hallucinations, feelings of unreality, special powers, persecution or any other psychotic symptoms. Objectively, the veteran was casually dressed and neatly groomed. He was alert, friendly, and cooperative. He spoke in a coherent manner with no loosening of association, ideas of reference or delusional thinking. He was not clinically anxious or depressed. He interacted with the interviewer, which was atypical for schizophrenics. He was not paranoid. He was unable to recall when he was last hospitalized for psychiatric reasons, but it was apparently more than 20 years before. His affect was full. His mood was euthymic. Hallucinations were denied. He presented ideas in a logical manner. There was no loosening of association or inappropriateness. There was no evidence of a schizophrenic, bipolar or organic brain problem. The veteran's memory was intact for both recent and distant events. His judgment and insight were basically intact. The examiner agreed with the prior findings in 1994, in which the veteran was not manifesting any symptoms whatsoever of a psychotic process. Any reactive psychosis from the past was in full remission. The mental status examination was completely within normal limits. The pertinent diagnosis was history of brief reactive psychosis or a schizophrenia or paranoid schizophrenia, currently in remission for over 20 years. The GAF score was 50. With the brief schizophrenic episode in remission, the remainder of the veteran's problems appeared to be sociological and situational, related to ongoing cocaine and heroin usage. The GAF score of 50 meant that the veteran was impaired as a result of many years of dysfunction, poor motivation, drug abuse and lack of opportunity. The veteran was an inpatient at a VA facility in July 1998 for heroin and cocaine dependence. Mental status examination revealed that the veteran was fully oriented. His contact was cooperative and there was no abnormal behavior or movements. Mood was good and affect was appropriate. Speech had normal rate and rhythm. Thought processes were coherent and logical. Delusions, hallucinations, and suicidal or homicidal ideation were denied. Insight and judgment were fair. There was no pertinent diagnosis. Other treatment records from 1998 and 1999 show no findings of a psychotic illness. The veteran was afforded a VA psychiatric examination in August 1999. The examiner noted that the veteran's hygiene was poor, and he had a foul body odor. The veteran was alert, euthymic, pleasant, relaxed and cordial. There was no evidence of anxiety, depression or psychosis. He related in a normal fashion. His thoughts were well organized, without evidence of psychotic content or process. It appeared that whatever psychotic symptoms the veteran had years ago had been remitted for some time. No further mental testing was recommended. The pertinent diagnosis was psychosis, probably substance induced, in remission for 20 years. The GAF score was 60. The examiner noted that if a GAF were assigned based on a mental impairment from psychosis, there would be no adverse impact on functioning. Analysis The veteran's schizophrenic reaction is currently rated as 30 percent disabling. He and his representative contend that his disability is greater in severity to such a degree that it is not adequately compensated by his presently assigned 30 percent rating. As noted above, the Board will consider the veteran's claim under both the current and the former schedular criteria in accordance with the Court's ruling in Karnas, 1 Vet. App. at 311. With respect to the current criteria, the Board finds that the medical evidence, reported in detail above, demonstrates that the veteran's service-connected psychiatric disability is not currently manifested by any active psychotic symptoms. Various examiners who evaluated the veteran's mental status concluded that his schizophrenic reaction has been in remission for many years. The August 1999 examiner indicated that there was no impairment associated with the service- connected disability. The May 1997 examiner opined that the psychosis was in complete remission. Similarly, the 1994 VA examiner noted the schizophrenic reaction by history only. In order to warrant the next higher evaluation of 50 percent under the new criteria, the veteran's disability would have to be manifested by symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty understanding complex commands, impairment of short term or long term memory; impaired judgment or abstract thinking; disturbances in motivation and mood; and difficulty in establishing or maintaining effective social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9203 (1999). The Board recognizes that the veteran testified as to having some problems with panic attacks, memory loss, mood disturbance and motivation problems. Although the veteran is competent to testify as to his personal feelings, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence does not reflect that the veteran currently possesses a recognized degree of medical knowledge that would render his opinions on medical diagnoses or causation competent. That is, in this case, the veteran does not have the expertise to render a competent opinion that associates any of his feelings with a schizophrenic reaction versus some other nonservice-related disorder, such as substance abuse. 38 C.F.R. § 4.14 (1999) (the use of manifestations not resulting from service- connected disease or injury in establishing the service- connected evaluation...is to be avoided). Further, January 1993 and April 1993 rating decisions found that the veteran's substance abuse is related to his own willful misconduct. The veteran was notified of these actions in a May 1993 letter and he did not appeal that finding. (Compensation shall not be paid for a disability or increase in a service- connected disability which is the result of the veteran's abuse of alcohol and/or drugs. See Barela v. West, 11 Vet. App. 280 (1998); VAOPGCPREC 11-96 (November 1996); VAOPGCPREC 2-97 (Jan. 16, 1997); VAOPGCPREC 2-98 (Feb 10, 1998). Service connection, per se is not precluded for the purposes of obtaining benefits other than compensation. VAOPGCPREC 2- 98 (Feb 10, 1998); Barela v. West, 11 Vet. App. 280 (1998)). No medical evidence has been submitted to link the veteran's substance abuse to service in any way. (Where a veteran claims a new disease or disability that is the result of his service-connected disability, competent evidence must be submitted to make the claim well grounded. See Jones (Wayne) v. Brown, 7 Vet. App. 134 (1994)). Although the Board's December 1996 remand requested the examiner to provide an opinion as to etiology regarding any disorders found other than schizophrenic reaction, the Board does not find that the absence of such opinions in the subsequent examinations is prejudicial error so as to require further remand. Stegall v. West, 11 Vet. App. 268 (1998). That is, the matter regarding whether substance abuse was willful misconduct or not was previously decided in a final RO decision, and no competent evidence demonstrating a well-grounded claim has been submitted. See Morton v. West, 12 Vet. App. 477, 481 (1999) (the Secretary cannot undertake to assist a veteran in developing facts pertinent to his or her claim until a well- grounded claim has first been established). While the veteran may sincerely feel that he continues to have mental problems because of the service-connected disability, his testimony and contentions are outweighed by the competent and probative medical evidence that uniformly concludes that the veteran's schizophrenic reaction is in remission, without evidence of symptoms or impairment from psychosis. The Board further notes that the May 1997 VA examiner specifically found the veteran's GAF score of 50. However, the examiner went on to explain that the GAF score of 50 meant that the veteran was impaired as a result of many years of dysfunction, poor motivation, drug abuse and lack of opportunity. Such score was not linked to the service- connected disability. Following the subsequent VA examination, the examiner excluded any impairment linked to the schizophrenic reaction. In summary, the Board concludes that the evidence does not indicate symptomatology resulting in reduced reliability and productivity such as to warrant a 50 percent disability rating. The Board therefore finds that the preponderance of the evidence is against a rating in excess of 30 percent for schizophrenic reaction under the new criteria. The Board has also considered the veteran's schizophrenic reaction under the former schedular criteria. Based on the evidence of record, the Board finds that a 50 percent rating or higher is not warranted under the old criteria as the veteran has not demonstrated considerable impairment in his ability to establish or maintain effective relationships. As noted above, although the examining psychiatrists each noted the veteran's complaints and symptoms, they otherwise agreed that the service-connected disability was by history only, without current evidence of psychotic illness such as to produce social and industrial impairment. In O.G.C. Prec. 9-93 (November 9, 1993), the VA General Counsel found that the word "definite," as used in 38 C.F.R. § 4.132 to describe a 30-percent degree of disability for purposes of rating claims based on certain mental disorders, should be construed to mean distinct, unambiguous, and moderately large in degree, more than moderate but less than rather large. The Board is bound by this definition of the term "definite." See 38 U.S.C.A. § 7104(c). Significantly, the competent medical opinions do not demonstrate that the veteran has more than definite impairment from the service-connected disability. There is no medical opinion nor are there any medical findings within the examination reports or treatment records that reflect a "considerable'" social and industrial impairment from schizophrenic reaction. Therefore, in summary, the Board finds that the preponderance of the evidence is against entitlement to a rating in excess of 30 percent under both the new and old criteria. 38 C.F.R. § 4.130, Diagnostic Code 9203 (1999); 38 C.F.R. § 4.132, Diagnostic Code 9203 (1996). Thus, the claim is denied. In March 2000 written arguments, the veteran's representative referred to the matter of an extraschedular rating for the service-connected disability. In the unusual case where the schedular evaluations are found to be inadequate, an extraschedular evaluation may be assigned commensurate with impairment in the average earning capacity due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1) (1999). With respect to this claim, the Board observes that in light of Floyd v. Brown, 9 Vet. App. 88 (1996), the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. The RO had not referred the veteran's case to the Under Secretary for Benefits, or the Director of the VA Compensation and Pension Service for consideration of extraschedular evaluation, as provided for in 38 C.F.R. § 3.321(b)(1) (1999). In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on its own. See also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In this case, the Board finds that the veteran's schizophrenic reaction is neither unusual nor exceptional as to render impractical the application of the regular schedular standards. The record does not reflect frequent periods of hospitalization because of his service-connected disability, or interference with employment to a degree greater than that contemplated by the regular schedular standards which are based on the average impairment of employment. Hence, no basis has been presented upon which to predicate referral of the veteran's case to the Under Secretary for Benefits, or the Director of the VA Compensation and Pension Service for consideration of extraschedular evaluation for schizophrenic reaction. ORDER Entitlement to restoration of a rating of 50 percent for schizophrenic reaction is denied. M. SABULSKY Member, Board of Veterans' Appeals The Court has stated the word "definite", as used in the old schedular criteria for a 30 percent evaluation, is a qualitative term rather than a quantitative term. Hood v. Brown, 4 Vet. App. 301, 303 (1993). However, the degree of impairment, which would lead to an award at the 30 percent level, can be quantified. Cox v. Brown, 6 Vet. App. 459, 461 (1994). In a precedent opinion, dated November 9, 1993, the VA General Counsel concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." "Definite" 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). VA, including the Board, is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c) (West 1991); 38 C.F.R. § 3.101 (1999).