BVA9505439 DOCKET NO. 92-56 044 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Entitlement to an increased rating for schizophrenia, chronic, undifferentiated type, currently evaluated as 50 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: John A. Jorgensen, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sabrina M. Tilley, Counsel INTRODUCTION The veteran served on active duty from June 1978 to February 1985. This matter came to the Board of Veterans' Appeals (Board), originally on appeal from an April 1989 rating decision, which confirmed and continued the 50 percent rating for the service- connected schizophrenia. In October 1992, the Board remanded the claim to the Regional Office (RO) for additional development. At that time, the claim for a total disability rating based on individual unemployability was added as an inextricably intertwined issue. In its current status, the case returns to the Board following completion of development made pursuant to the October 1992 remand. In view of the determination reached with respect to issue number 1, the Board defers the issue of entitlement to individual unemployability due to service- connected disability, which is the subject of the remand portion of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran, along with his representative, contends that he is entitled to a higher evaluation for his service-connected psychiatric disorder. He reports that this condition is manifested by a blunted affect, occasional looseness of associations, and auditory and visual hallucinations, as well as significant impairment of occupational functioning and social relationships. The veteran also reports his employment pattern has been very inconsistent, stating that within the two-year period between 1986 and 1988 he had three jobs. The veteran indicates that he is unable to work in engineering and management, which are his areas of expertise, because of his inability to tolerate the noise of machinery and his lack of confidence in himself. The veteran believes that he is entitled to at least a 70 percent rating for his service-connected psychiatric disability. 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 favors a 70 percent rating for schizophrenia, chronic, undifferentiated type. FINDINGS OF FACT 1. All relevant evidence necessary for a fair and informed decision has been obtained by the originating agency. 2. The veteran's schizophrenia, chronic, undifferentiated type, is productive of severe impairment of social and industrial adaptability. CONCLUSION OF LAW The criteria for a rating of 70 percent for schizophrenia, chronic, undifferentiated type, have been satisfied. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.132, Code 9204 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran has presented a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim that is plausible. The Board is also satisfied that all appropriate development has been accomplished and that there is no further duty to assist the veteran in order to conform to the requirements of 38 U.S.C.A. § 5107(a). In an October 1985 rating decision, service connection was established for a psychosis, then classified as schizophrenia, residual type. A 70 percent rating was assigned to that disability. This decision was based on the veteran's service medical records, which showed that a medical board, in May 1984, found the veteran to be unfit for military service due to the presence of schizophrenia, residual type. This condition was manifested by suspiciousness, tangentiality, a blunted affect, occasional looseness of associations, questionable auditory and visual hallucinations, autistic thinking, ideas of reference, and deterioration in occupational functioning and social relation. The degree of impairment of social and industrial adaptability was considered to be severe. A Department of Veterans Affairs (VA) examination was conducted in February 1987. At that time, the veteran apparently denied having any excessive anxiety, depression, delusions, or paranoia. He indicated that he had not received any psychiatric treatment since October 1986. He was not found to have any perceptual disturbances, but he demonstrated mild tension and a constricted affect. The diagnosis was schizophrenia, chronic undifferentiated type, in partial remission. By a rating decision, dated in March 1987, the disability rating for the service-connected schizophrenia, reclassified as chronic undifferentiated type, was reduced from a 70 percent rating to a 50 percent rating. As indicated above, this is the veteran's current rating. VA medical reports from May 1988 culminate into the February 1990 admission for schizoaffective disorder. As described, the veteran was unemployed and presented a history of depression and the belief that he received messages from the television and newspaper. He was placed on Stelazine, with which he experienced some improvement. He was discharged from the hospital with a referral to the Day Treatment Center and was given a one month's supply of medication. The veteran underwent a VA psychiatric examination in June 1991. At that time, it was noted that he was attending the VA Day Treatment Center three days a week. He received Stelazine and was last hospitalized in February 1990. He reported that he continued to suffer from persistent symptoms of generalized anxiety. He indicated that he was always tense and always felt guilty. He admitted to episodes in which he heard voices, and he had ideas of reference. The veteran complained of impaired concentration, as well as persistent paranoid and persecutory ideas. He stated, "I have enemies." He also indicated that the was frustrated and felt that he was going to explode. He also reported that he had not been able to work since 1988. On mental status evaluation, he was alert and oriented to all three spheres. He was tense and anxious. His affect was fluid, and his mood was neutral. His memory was intact, but his concentration was impaired. Insight was absent, but his judgment was adequate. Interim summaries from the VA day treatment facility, dated in September 1991 and July 1992, show that the veteran was first seen at that facility in March 1990. He presented a psychiatric history remarkable for an initial episode of schizophrenia in 1983 or 1984. He was hospitalized for one month in the military and was transferred to Walter Reed Army Hospital, where he was treated for eight months. In between hospitalizations, he had been employed for two years as a production supervisor. However, he had been idle since March 1987. The report indicated that the veteran had been attending the day treatment center program four times a week and attended most of the scheduled activities. In February 1990, he experienced another psychotic episode which required hospitalization. The psychiatric disability picture in March 1990 included a blunted affect and social withdrawal. Additionally, the veteran had a lack of spontaneity, anhedonia, and a paucity of ideation. His appearance was described as being "slovenly" in his appearance. One month prior to the interview, he had been contemplating suicide. He entertained the delusion that the Mafia was after him. His social relationships were nil. Basically, he saw no one other than his parents. These residual symptoms of schizophrenic illness were pervasive to the point that he lay in bed when at home and socialized only with members of his immediate family. When not at home, he was at the Day Treatment Center. However, even there, he was not able to participate in a full five-day schedule, attending only three days a week for three hours a day. He also could not participate in the verbal group or individual therapy. Consequently, he only participated in activities of recreation. Auditory hallucinations were prominent from September 1991 through January 1992, and the veteran was noted to be delusional. He denied his illness and demonstrated minimal insight. The Chief of the VA Day Treatment Clinic concluded that there had been no response to treatment and medication particularly with respect to the veteran's anhedonia, anergy and social withdrawal. The prognosis was guarded. The veteran was hospitalized again in December 1991 with an exacerbation of symptoms. Apparently, he felt the loss of his sister's support, as she had married recently and moved from their parental home. Since that time, he experienced thought blocking, auditory hallucinations, preoccupation, and inability to concentrate. The veteran denied feeling depressed, but his complaints and findings suggested otherwise. He was discharged after 10 days of inpatient treatment. The veteran underwent another VA examination in November 1992. At that time, the veteran reported that he had not been able to work at all due to his nervous condition since 1987. He reported that his condition had worsened since his last psychiatric evaluation in June 1991. He reported that he required increased dosages of psychotropic medications to control his symptoms which included auditory hallucinations, persecutory paranoia, ideas of alien control, and ideas of reference. He stated, "The voices are trying to control me through the radio and television." He suffered from persistent tension, anxiety, irritability, and depression. Making reference to complaints of impaired concentration and inability to maintain social relationships, the veteran stated the following: I can't stand to have people around me. I'm okay by myself. I work around the house. I take out the garbage, cut the grass, rake the leaves. I stay in my bedroom a lot. I try to sleep. I'm afraid of watching television or listening to the radio. I can't concentrate or read. I don't trust people, but I don't mind being around my family. When I try to work I get all stressed out. I get agitated and I have to get away. The objective evaluation showed that the veteran was alert and oriented to all three spheres. He was noted to be very tense and anxious. His affect was constricted. His mood was depressed, and a paranoid persecutory thought disorder was evident. Memory and concentration were impaired. Insight was absent. Judgment was compromised under stress. The diagnosis was schizophrenia, chronic undifferentiated type, active severe. The veteran was hospitalized again from September 1992 to October 1992 for schizophrenic disorder, paranoid type. This admission was due to his complaints of depression, sleeping all day, lack of interest in anything, and nervousness at night for a duration of one month. He was having suicidal thoughts as well. The veteran was continued on the medication that he had been taking. It was noted that he had not been a management problem, but had been compliant with his therapy. Once his suicidal ideation resolved, the veteran was afforded a discharge with a monthly supply of medication. Disability evaluations are based upon the average impairment of earning capacity as contemplated by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Although the VA must consider the entire record, the most pertinent evidence consists of those documents created in proximity to the recent claim. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 4.1 (1994). In the veteran's case, the clinical data show that he has been out of work since March 1987. He requires three to four days of treatment at a VA Day Treatment Center. Also, since between February 1990 and October 1992, he required two periods of hospitalization for exacerbations of his psychiatric symptoms. Finally, on the most recent VA examination, he was found to have psychiatric symptoms productive of severe disability. This finding is consistent with an evaluation of 70 percent under the provisions of 38 C.F.R. § 4.132, Code 9205 (1994). The presence of total social and industrial inadaptibility, required for a 100 percent rating, has not been confirmed by the clinical record. In view of the above, the Board concludes that the preponderance of the evidence favors a 70 percent rating for the service-connected schizophrenia, chronic, undifferentiated type. ORDER A 70 percent rating for schizophrenia, chronic, undifferentiated type, is granted, subject to regulations applicable to the payment of monetary awards. REMAND In view of the favorable determination above, the Board finds that additional development is necessary before reaching the merits of the veteran's claim for a total rating based on individual unemployability due to service-connected disability. This is in order to ensure that the veteran is not prejudiced by the Board's deciding an issue which was not first reviewed and decided by the RO. See Bernard v. Brown, 4 Vet.App. 384 (1993). In particular, it is noted that various attempts have been made to obtain pertinent records from the Social Security Administration which were utilized as a basis for the veteran's disability claim. Another attempt should be made to obtain these records as they may reveal facts pertinent to the veteran's claim. Likewise, any additional reports of inpatient or outpatient treatment, including the records of the VA Day Treatment Center, should be obtained. Finally, the September 1991 interim report from a VA staff psychologist and the October 1993 report of the VA staff social worker reflect the opinion that the veteran is currently unemployable. These opinions have not been confirmed by a psychiatrist. Hence, an additional psychiatric examination with an opinion as to the veteran's employability status would be helpful in resolving that issue. In view of the above, the case is REMANDED to the RO for the following actions: 1. The RO should obtain from the Social Security Administration the records pertinent to the appellant's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 2. The RO should take all appropriate action to obtain any additional reports of VA inpatient and outpatient from October 1992. These reports should include records from the day treatment program. All evidence obtained should be associated with the veteran's claims folder. 3. Thereafter, the RO should afford the veteran a current VA psychiatric examination in order to determine the current nature and severity of his service- connected psychiatric disability, as well as its effect on his employability The examiner is requested to review the entire claims file and to offer a complete diagnostic assessment consistent with the Diagnostic and Statistical Manual of Mental Disorder, Third Edition, Revised, of the American Psychiatric Association (DSM-III- R), including the Global Assessment of Functioning (GAF) scale on Axis V. The medical examiner is requested to comment on how these findings impact on the veteran's ability to engage in substantially gainful employment. 4. The RO then should review the veteran's claim for a total rating based on individual unemployability due to service- connected disability in light of the additional development. If the benefit sought on appeal is not granted, then the veteran and his representative should be provided with a supplemental statement of the case. Once the veteran and his representative have been given an opportunity to respond, the case file should be returned to the Board for further appellate review, if necessary. The purpose of this REMAND is to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. LAWRENCE M. SULLIVAN 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. 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. The 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) (1994).