Citation Nr: 0003230 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 95-16 615 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased evaluation for service-connected schizophrenia, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Johnson, Associate Counsel INTRODUCTION The veteran served on active duty from July 1965 until March 1968. This matter came to the Board of Veterans' Appeals (Board) from a November 1994 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied the claim for an increased rating for service connected schizophrenia. The veteran was scheduled to appear and present testimony before a member of the Board in May 1997, but he failed to report for the hearing. The Board remanded the case in May 1997 and in November 1998 for further development. FINDINGS OF FACT 1. All available relevant evidence necessary for disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's service-connected paranoid schizophrenia is not productive of more than considerable social and industrial impairment. 3. The veteran's service-connected paranoid schizophrenia is not productive of more than 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. CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent for paranoid schizophrenia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9203, effective prior to November 7, 1996; 38 C.F.R. § 4.130, Diagnostic Code 9203, effective as of November 7, 1996; 38 C.F.R. §§ 3.103, 4.7 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The service medical records document the history and treatment of schizophrenia. In a June 1968 decision, the RO granted the claim of service connection for paranoid type schizophrenia, and assigned a rating of 70 percent. Subsequent to a VA examination conducted in June 1968, the rating was reduced to 50 percent by rating action of August 1968. In that report, the examiner noted the diagnosis of paranoid type schizophrenic reaction, and also mentioned that there was no evidence of mental or emotional aberration. The file includes VA and non-VA records regarding the veteran's psychiatric hospitalizations and treatment for the period from 1969 to 1978, as well as the award of temporary total ratings of 100 percent in 1969 and 1971. The records show that the veteran was hospitalized in January 1969, for a period from June to December 1970, January 1971, August 1972, January 1974, July 1975, August 1975 and November 1975, and in February 1978. In a July 1970 letter, Dr. Frederick G. Woodson discussed the veteran's mental status and treatment. According to an August 1971 social and industrial survey, there was a reference to the veteran's vocational rehabilitation and that his case was closed. The veteran was afforded a VA examination in February 1980. The examiner observed that the veteran was in good contact, well oriented, agreeable and friendly. He spoke freely and expressed some improvement in his life's pattern and adjustment. He expressed only mild hostility about his hospital treatments, but on the other hand, he felt that VA had been good to him and was helpful. He denied any particular delusions or hallucinations, and claimed that he does not hold grudges or believe that people are against him. The paranoid element of his illness appeared much improved. He expressed his wish that he could continue with employment, and that he would like some increase in his disability to be able to get along better. The examiner found that overall, the veteran indicated an improvement in his life's pattern, expressing some desire to continue work and some glimpses of a goal. The examiner reported that the veteran's paranoid type schizophrenic reaction was in partial remission and that he was under medication. Hospitalization was not indicated, and he was competent. The veteran appeared employable to a degree under special conditions. The examiner recommended continued follow up and medication. The file includes records of the veteran's psychiatric hospitalization and treatment in the 1980s. He was hospitalized in December 1980 for treatment of anxiety state and depression. In January 1981, it was indicated that the veteran's paranoid schizophrenia was in good remission. Hospitalization records from March 1981 reflect diagnoses of anxiety depression and paranoid schizophrenia. Records from his hospitalization in September, October and November 1984 refer to the veteran's problems with episodic excessive drinking in addition to the diagnosis of schizophrenia. The records show that a temporary total rating was assigned in 1985 for the period of hospitalization in November 1984. The veteran was hospitalized in January 1992, and it was noted that he failed to return from an overnight pass. At that time, the diagnoses reported were acute exacerbation of chronic paranoid schizophrenia, mild to moderate ethanol abuse, and chronic exacerbation of mental illness and problems with girlfriend. In an addendum, it was noted that his chronic alcohol abuse was in remission. His Global Assessment of Functioning (GAF) at admission was 35, and was 75 at discharge. Reports from January and March 1993 reflect that the veteran's current and high GAF was 50. His alcohol dependence, in addition to his schizoaffective disorder, was noted in January 1993. In March 1993, it was noted that he was suffering from adjustment disorder with depression. At that time, a provisional diagnosis of rule out schizoaffective, depressed, was noted. It was further mentioned that his alcohol dependence was in remission. In July 1993, his GAF was 60 and a diagnosis of paranoid type schizophrenia was noted. In June and November 1993, the veteran was assigned temporary total ratings due to his hospitalization. Of record is a copy of a 1993 favorable determination from the Social Security Administration (SSA) regarding the award of benefits. The veteran's schizophrenia was the reported primary diagnosis and his alcohol abuse was the secondary diagnosis. The veteran underwent alcohol detoxification in February 1994. The veteran's noncompliance regarding his treatment of schizophrenia, and his intermittent alcohol abuse was noted when he was admitted in June 1994. He was admitted for treatment in January 1995 for depression, and his history of chronic paranoid schizophrenia was mentioned. The mental status examination revealed that the veteran was cooperative, cheerful and pleasant. Speech was of normal volume and emotion was euthymic. His affect was bright and in normal range. Cognitive function, MMSE score was 27/30. Thinking was logical with some tangentially. He did not have any delusions, flight of ideas or looseness of associations. The veteran was treated in June 1995 for his complaints regarding a reaction to the use of Haldol. Records from Princeton Community Hospital show that the veteran was treated for depression and suicidal thoughts in March 1996, and his medication was adjusted in December 1996. He was treated for depression in January 1997. In a January 1997 note, a social worker mentioned the veteran's problems with being admitted for treatment. He was hospitalized in January 1997, and his GAF was 35/55. It was noted that he was admitted on a voluntary basis, but upon his involuntary commitment due to noncompliance he wanted to leave due to active psychotic process. The mental status examination revealed that the veteran was not in acute distress, but there was an increased anxiety level and he was somewhat agitated and paranoid. There was some disorganization of thought processes and tangentially, and occasional looseness of associations. There was no flight of ideas. His affect was in fair range and appropriate to the mood that he indicated was fine. Insight and judgment were impaired. On the cognitive portion of the examination he was alert and oriented times three, and otherwise intact. His mini mental status was 30/30, and GAF was 35/55. On a visit in February 1997, it was noted that the veteran's presentation was loose, but not overtly psychotic. He rambled and was preoccupied with thoughts about depression. His behavior and thinking were erratic. The examiner found it difficult to pin him down in terms of historical detail. He spoke of his wish to be admitted to the hospital for a few months for the purpose of relaxation. He denied that his substance abuse was a problem and that it was beneficial to him because it stimulates his hearts and helps him with depression. The examiner commented that the veteran was a chronically disturbed individual, and that his recent conversion to the use of Risperdal appeared to have some positive effect. The examiner added that the assessment was made from the records since he did not know the veteran personally. The examiner refilled the veteran's medications and planned for a follow-up visit in three months. The hospitalization report of August 1997 reflects a discharge diagnosis of disorganized schizophrenia and alcohol abuse, as well as a GAF score of 50. He was discharged irregularly due to his AWOL status, and it was noted that a search was necessary given his overall psychiatric status and improved condition. The examiner noted that the veteran was cooperative, sat quietly, made eye contact and spoke at a normal rate. He answered questions in complete sentences and spoke in a normal tone. Impairment was not noted. He expressed his feelings of happiness, and the examiner found that the veteran's affect was appropriate. His mood was depressed and he did not have any energy. He knew the year, president, his place of birth, and he was able to do simple arithmetic. He did not demonstrate a flight of ideas, loosening of association, or perseveration. He demonstrated some insight into why he was in the hospital. He denied suicidal and homicidal ideation, as well as hallucinations in all spheres. He did not feel like hurting himself at that time, and he had not felt that way in the past. However, in the past he felt like hurting someone, but had never harmed anyone nor planned to do so. The staff psychiatrist reported that the veteran was doing quite well and was not at risk of harming himself or others. He did not appear to be craving alcohol. His commitment stopped due to his participation in day treatment prior to discharge. In January 1998, the veteran was afforded a VA examination. The examiner indicated that the claims folder had been reviewed. The examiner described the veteran's appearance as unshaven with rumpled hair, but his dress and hygiene was adequate. He was alert and fully oriented. His behavior was appropriate, cooperative and responsive. His mood was normal. He did not appear to be acutely anxious or overtly depressed. He made good eye contact, and his speech was clear, relevant and logical. Affect was appropriate and in normal range. Psychomotor activity was within normal limits. He did not appear to be hallucinating during the interview. His thinking was free of any loosening of associations or flight of ideas. Thought content did not reveal any gross delusions. Insight was fair. Recent memory was mildly impaired. Immediate and remote memories were intact. Concentration was adequate. His fund of general information, abstract thinking and judgment were intact. He appeared to be competent for VA purposes. He attends to his basic needs independently. His drinking and stopping his medications with a return of psychotic symptoms would not be considered part of his schizophrenic illness, but rather personality features. His low tolerance for work pressures would be considered part of his schizophrenic disorder. The examiner diagnosed paranoid type schizophrenia and alcohol abuse. It was noted that the veteran had problems with alcohol abuse and stopping his medications. The examiner assigned a GAF score of 60, defined as moderate difficulty in occupational functioning, in this case his getting nervous and not being able to work for short periods of time. A few days after his VA examination in January 1998, the veteran was seen for problematic alcohol abuse. His schizophrenia was noted at the time. II. Legal Analysis The Board finds that the veteran's claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Appeals for Veterans Claims (Court) has held that, when a veteran claims that a service-connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is also satisfied that all relevant facts have been properly developed and that VA has fulfilled its duty to assist the veteran as mandated by 38 U.S.C.A. § 5107(a) and 38 C.F.R. § 3.103(a). Disability evaluations are based upon the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (West 1991). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Consideration is to be given to all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Although a review the recorded history of a disability should be conducted in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). This decision will include a review of the entire record, but the focus will be on the most recent medical findings regarding the service-connected disability at issue. Since the time the veteran filed his claim for an increased rating, the regulations for the evaluation of psychiatric disorders were revised and became effective as of November 7, 1996. 61 Fed. Reg. 52695-52702 (Oct. 8, 1996). When the regulations concerning entitlement to a higher rating are changed during the course of an appeal, the veteran is entitled to resolution of his claim under the criteria that is to his advantage. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Hence, the veteran's paranoid schizophrenia may be evaluated under 38 C.F.R. § 4.132, Code 9203, effective prior to November 7, 1996, or under 38 C.F.R. § 4.130, Code 9203, effective as of November 7, 1996. The Court has stated that where the law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant will apply unless Congress provides otherwise. Karnas v. Derwinski, 1 Vet. App. 308 (1990). Here, either the recently amended or previous rating criteria may be the version most favorable to the veteran. In this case, the application of the old and new criteria would not result in a higher rating. The Court has further stated that when the Board addresses in its decision a question that was not addressed by the RO, the Board must consider the question of adequate notice of the Board's action and an opportunity to submit additional evidence and argument. If not, it must be considered whether the veteran has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). In addition, if the Board determines that the claimant has been prejudiced by a deficiency in the statement of the case, the Board should remand the case to the RO pursuant to 38 C.F.R. § 19.9 specifying the action to be taken. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Here, supplemental statements of the case issued in June 1998 and September 1999 address the new criteria. Therefore, the veteran has been informed of the new criteria and their application. Under 38 C.F.R. § 4.132, Diagnostic Code 9203, prior to November 7, 1996, psychotic disorders such as paranoid schizophrenia are rated as 100 percent disabling when there are active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. A 70 percent rating is assigned with lesser symptomatology such as to produce severe impairment of social and industrial adaptability. A 50 percent rating is assigned when there is considerable impairment of social and industrial adaptability. In this case, the Board finds that the disability picture does not meet the criteria for a rating greater than the 50 percent evaluation currently in effect. Regarding the old criteria, it is clear that there is lesser symptomatology than the active psychotic manifestations as required for a 100 percent rating, since the findings do not indicate that there are persistent active psychotic manifestations, and the VA examiner in 1998 determined that the stopping of medication and the return of his psychotic symptoms were associated with personality features and not his schizophrenia. However, his symptoms are not to the extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability, which is also required for such a rating. As noted by the VA examiner in 1998, the veteran's low tolerance for work pressures is considered part of his schizophrenic disorder, but his GAF score was 60. Regarding his GAF score, the examiner explained that it represented moderate difficulty in occupational functioning, in this case his getting nervous and not being able to work for short periods of time. This is consistent with earlier GAFs of 50 and 60 recorded in 1993. This does not equal or approximate the severe impairment of social and industrial adaptability required for the 70 percent rating. Therefore, the degree of impairment demonstrated by the evidence does not warrant a rating greater than 50 percent when applying the old criteria, and there is no question as to which evaluation should apply. 38 C.F.R. § 4.7 (1999). Under 38 C.F.R. § 4.130, paranoid schizophrenia is rated as 100 percent disabling when there is 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. A 70 percent evaluation is assigned when there is 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. A 50 percent evaluation is assigned when there is 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. Clearly, there is occupational and social impairment associated with the veteran's service-connected paranoid schizophrenia. However, it is not to a degree that would be considered 70 percent disabling when applying the new criteria. Given the findings of record and at the time of the VA examination of 1998, the disability picture does not include deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to the symptoms listed for a 70 percent rating. It could be argued that the frequent admission for hospitalization would be the equivalent of near continuous panic or depression affecting the ability to function independently. However, given the GAF scores and the role of his alcohol abuse and stopping medications, as well as the findings noted on the most recent VA examination, the veteran does have the ability to function independently despite his continuing need for treatment, including hospitalization. Therefore, there is not a question which evaluation should apply since the disability picture does not approximate the criteria for a 70 percent rating under the new criteria. 38 C.F.R. § 4.7 (1999). The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). After a careful review of the available Diagnostic Codes and the medical evidence of record, the Board finds that Diagnostic Codes other than 9203 do not provide a basis to assign an evaluation higher than the 50 percent rating currently in effect. Here, the preponderance of the evidence is against the veteran's claim, therefore the application of the benefit of the doubt doctrine contemplated by 38 U.S.C.A. § 5107 (West 1991) is inappropriate in this case. ORDER Entitlement to a rating greater than 50 percent for service- connected paranoid schizophrenia has not been established, and the appeal is denied. J. E. Day Member, Board of Veterans' Appeals