Citation Nr: 0007595 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 98-12 496A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased disability evaluation for schizophrenic reaction, schizoaffective disorder, currently evaluated as 50 percent disabling. 2. Entitlement to a total disability evaluation based on individual unemployability. REPRESENTATION Appellant represented by: R. Edward Bates, Attorney At Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. N. Booher, Associate Counsel INTRODUCTION The veteran had active service from June 1965 through August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision by the Department of Veteran's Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefits sought on appeal. The Board initially notes that during an October 1998 hearing held before the RO in Cleveland, Ohio, the veteran indicated that he has been receiving Social Security benefits since approximately 1979 or 1980. The veteran's Social Security records have not been associated with the file, and no additional information regarding the potential significance of the records was given, i.e. whether the records document the receipt of disability benefits for the veteran's service- connected disability, or whether the records address the veteran's employment status. As a general rule, the duty to assist requires the VA to obtain and review Social Security records which may contain evidence relevant to a veteran's VA claim. Baker v. West, 11 Vet. App. 163, 169 (1998). However, in the present case, and in light of the following favorable decision, the Board finds that it is not necessary to remand this matter and the veteran will not be prejudiced if the Social Security records are not associated with the file. In this regard, the veteran's testimony indicates that he began receiving Social Security benefits in 1979 or 1980. This information would have little impact on the Board's assessment of the veteran's current level of disability and request for an increased disability evaluation dated in March 1998 and his current ability to maintain employment, as the record shows that the veteran has maintained employment on an intermittent basis since 1979. Additionally, in a VA-Form 21-4138, Statement In Support of Claim dated July 1998, the veteran raises a claim for service connection for post-traumatic stress disorder. This matter was not prepared for appellate review, and as such it is referred to the RO for clarification and appropriate action. FINDINGS OF FACT 1. All evidence necessary for the equitable resolution of the issue of entitlement to an increased rating for schizophrenia reaction, schizoaffective disorder has been obtained. 2. The veteran's schizophrenia reaction, schizoaffective disorder is manifested by panic attacks, social isolation, depression, delusions, preoccupation with bizarre thoughts, preoccupation with thoughts of death, impaired judgment, neglect of personal hygiene, suicidal ideation, violent thoughts and anger, poor interpersonal relationships and the veteran has been shown to have severe social and industrial adaptability. CONCLUSIONS OF LAW 1. The criteria for a 100 percent disability evaluation for schizophrenic reaction, schizoaffective disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9205 (1999). 2. A schedular rating of 100 percent having been granted, there is no legal entitlement to a total disability rating based on individual unemployability pursuant to 38 C.F.R. § 4.16 and that claim is moot. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1999); 38 C.F.R. § 4.16(a) (1999); Green v. West, 11 Vet. App. 472 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran and his representative claim that the veteran is entitled to an evaluation in excess of 50 percent, to reflect more accurately the severity of the veteran's schizophrenia symptomatology. An allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased evaluation. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-32 (1992). Based on the veteran's contention, the Board finds that the claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). The Board also finds that the VA has fulfilled its duty to assist the veteran by obtaining and fully developing all relevant evidence necessary for the claim's equitable disposition. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (1999). Further, a disability evaluation may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1 (1999). Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Service connection for schizophrenic reaction, schizoaffective type was established in a September 1969 rating decision and, at that time, the RO assigned a 50 percent convalescence rating from August 12, 1969. In a June 1970, the veteran's rating was reduced to 30 percent, and increased to 50 percent in a November 1988 rating decision. The veteran's 50 percent disability evaluation was continued by rating decisions dated in January 1991 and June 1998. The veteran filed a Notice of Disagreement in July 1998 and a substantive appeal in December 1998, giving rise to the current appeal. In a June 1998 rating decision, the RO continued the veteran's 50 percent disability evaluation for schizophrenia reaction disorder pursuant to 38 C.F.R. § 4.132, Diagnostic Code (DC) 9205 (1999). Disorders under DC 9205 schizophrenia, residual type; other and unspecified types are to be rated as chronic adjustment disorders using the criteria set forth in DC 9440. Pursuant to DC 9440, a 50 percent disability evaluation is warranted for 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 assignable with evidence of 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted where 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. As previously indicated, the veteran was service-connected for schizophrenia in May 1969. From May 1969 through August 1988, the veteran was afforded three VA examinations and was hospitalized in March-April 1979 for depression, alcohol and drug abuse. From May 1969 through August 1988, the veteran was diagnosed with an emotionally unstable personality and schizophrenic reaction, schizoaffective type personality disorder, body dysmorphic disorder (which was treated and resolved), and alcohol and drug abuse (January 1970, December 1974, March-April 1979 and August 1988). In December 1974, a VA examiner described the veteran as having severe social and industrial impairment. Subjective complaints reported by the veteran during this time period include: depression (December 1974), thoughts and fears of hurting himself (December 1974, August 1988), delusions involving thoughts that people were talking about him behind his back and watching him, and having a general sense that people "had it in" for him (December 1974, August 1988), social isolation (December 1974, August 1988), feeling that part of his brain was missing (August 1988), poor sleeping habits (August 1988), bizarre occupations, feelings of fear and sensations and feelings of jitteriness and shaking (August 1988). Objective symptoms noted during this time include: having no friends, being socially isolated, social fear and anxiety (December 1974, August 1988), disorderly dress and poor hygiene (August 1988), specific desire fantasies, preoccupation, bizarre thoughts and difficulty expressing himself (August 1988), suicidal and homicidal rumination and tangential reality contact (August 1988), no initiative or motivation and poor to questionable insight and judgment (August 1988). Letters dated June-August 1988 show that the veteran was found to be medically unable to perform the position of custodial laborer with the United States Postal Service, as a result of his history of "nervous disorders." The veteran was also turned down for the position of mail processor as a result of his disorders. From December 1988 through June 1998, the veteran was afforded two VA examinations (December 1990, April 1998), was hospitalized for alcohol dependence and agoraphobia (November 1990), and continued to receive regular outpatient treatment for schizoaffective disorder from University Hospitals of Cleveland, Department of Psychiatry Outpatient Services (December 1988- June 1998). Outpatient treatment records from University Hospitals dated December 1988 show that the veteran complained of having a gloomy mood, having constant fear and experiencing panic attacks associated with sweating, diffuse pain, arm tremor, palpitations, gasping and diarrhea. In December 1988, the veteran was diagnosed with adjustment disorder with mixed emotional features, moderate to severe panic disorder with agoraphobia and histrionic personality disorder, anxiety disorder including phobic attacks, depressed mood and probable success neurosis. His mood and personality were shown to impair his judgment and he was preoccupied with thoughts of death and he continued to avoid social activities, work and eating most foods. Outpatient treatment records dated February 1989 document that the veteran experienced a resurgence of panic attacks. He was described as having an anxious affect and mood, but there was no evidence of psychotic thought, hallucinations or suicidal or homicidal ideation. He was also diagnosed with a mild depressive disorder. In September 1990 reflect that the veteran was worried about social situations and had increased depression. No psychotic symptoms were noted and the veteran was described as being in the "higher functioning schizophrenic spectrum." Outpatient records show that the veteran underwent a thorough examination in December 1990. At that time, he was shown to have complaints of fearing people, unhappiness, dying and fear of leaving Cleveland, Ohio. The veteran stated that he was afraid that people were talking about him. While he did not want to be around people, he became afraid when he was alone. The veteran reported experiencing anxiety, nervousness and being depressed and confused. The veteran presented to the examination with a rather neglected general appearance. He exhibited definite perceptual disorganization in that he gave irrelevant, inappropriate answers to many of the examiner's questions. Due to this paralogical thinking, the examiner described the veteran's intellectual functioning, memory, insight and judgment as slightly impaired. The veteran denied hallucinations, but admitted to delusional ideations with persecutory trends. His affect was inappropriate and he had mild to moderate anxiety. The veteran was diagnosed with Axis I schizophrenia, undifferentiated, subchronic and panic disorder with agoraphobia by history. He was said to have major impairment in his functioning and assigned a GAF score of 35. The veteran was advised to seek ongoing treatment from the VA psychiatric outpatient clinic. In February 1995, the veteran was diagnosed with bipolar affective disorder, Type I with depression, hypochondria, history of panic attacks and alcohol abuse and social isolation. The veteran was given a GAF score of 70 for the highest level of functioning over the previous year and a GAF score of 60 for the date of the examination. An undated outpatient record appearing between a February 1998 record and an April 1998 record in the claims file, shows that the veteran had a withdrawn demeanor, mild psychomotor retardation, depressed mood, constricted and dysphoric affect, inappropriate feelings of anger directed toward others, and feelings of inadequacy. The veteran was diagnosed with dysthymic disorder and assigned a GAF score of 50. The veteran was afforded a VA examination in April 1998. Subjectively, the veteran reported feeling lousy, depressed and having occasional suicidal thoughts. He stated "I just want to disappear." The veteran reported being delusional and thinking that the whole world is against him and that someone is trying to shoot him. He felt certain that someone would shoot him in the back of the head. The veteran's memory for recent and remote events was fair, but vague for recent memory. Judgment and insight were impaired. The veteran denied hallucinations. Objectively, the VA examiner found that the veteran had a depressed mood and denied suicidal ideation even though he admitted to wanting to disappear, to thinking that the whole world is against him and to thinking that someone is trying to smash his car and shoot him in the back. The veteran was oriented to time, place and person. The examiner diagnosed the veteran with Axis I schizophrenia paranoid type, alcohol dependence by history, cocaine and marijuana abuse by history. The examiner assigned the veteran a past and current GAF score of 40. The examiner noted that the veteran is depressed, delusional and suicidal. The examiner described the veteran as having severe impairment of his industrial and social adaptability. The veteran continued to be diagnosed with a dysthymic disorder through June 1998 and in May 1998 it was noted that the veteran continued to be at chronic risk of self-harm. From September to October 1998, the veteran sought intermittent treatment from St. Luke's Hospital for various conditions including anxiety attacks. During an October 1998 hearing held before the RO in Cleveland, Ohio, the veteran testified that he does not have any friends, does not participate in any social activities and that he spends 90 percent of his time alone. He stated that he continues to experience constant depression, fears death and has panic attacks nightly because he is afraid he will die if he falls asleep. The veteran also reported being irritable, angry and having trouble with his short-term memory. The veteran testified that he does not keep weapons at home because of the chance that he will kill himself. He stated that he had told his therapist that the only reason he had not committed homicide is because he does not want to go to jail. The veteran testified that he worked for his mother's catering service in the 1990's, but not on a consistent basis and he had difficulty being nice to people while working. Upon review of the foregoing evidence, the Board notes that in December 1990, the veteran was assigned a Global Assessment Functioning (GAF) score of 35 based on diagnoses of schizophrenia, undifferentiated, subchronic and panic disorder with agoraphobia by history. The veteran received GAF scores of 60 and 50 in February 1995 and February 1998 respectively, based on diagnoses of bipolar affective disorder Type I, depression, hypochondria, history of panic attacks, alcohol abuse and social isolation. The most recent VA examination of record dated April 1998 shows that the veteran was assigned a GAF score of 40 in conjunction with diagnoses of schizophrenia paranoid type and a history of alcohol, cocaine and marijuana abuse. While these scores are a global assessment and are attributable not only to the veteran's schizophrenia, but also to bipolar affective disorder, depression, panic disorder and a history of alcohol and drug abuse, they are indicative of a pattern of worsening symptomatology. The Board finds significance in the fact that the most recent score of record, a GAF of 40, is attributable primarily to schizophrenia, the veteran's service-connected disorder, with a history of alcohol, cocaine and marijuana abuse. According to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM- VIV), which the VA has adopted at 38 C.F.R. §§ 4.125, 4. 130 (1999), a GAF score of 40 is indicative of 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; child frequently beats up younger children, is defiant at home, and is failing at school). The Board notes further, that the veteran has also been diagnosed as having a nonservice- connected personality disorder. However, to the extent that the record does not clearly identify the symptomatology attributable to service-connected psychiatric disability as opposed to nonservice-connected mental condition, reasonable doubt should be resolved in the veteran's favor and the symptoms should be presumed to be attributable to the service-connected psychiatric disorder. See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102 clearly dictates that such signs and symptoms be attributed to the service-connected condition). While the evidence shows that the veteran has disabilities other than schizophrenia, and while his symptomatology waxes and wanes, it is clear that the most recent VA examination report shows that the veteran carries a diagnosis of schizophrenia and the veteran has been characterized as having severe impairment of his industrial and social adaptability, which corresponds to the assigned GAF score of 40. Since June 1988 when the veteran's 50 percent disability evaluation was assigned, the veteran's disability has consistently been manifested by panic attacks, social isolation, depression, delusions, preoccupation with bizarre thoughts, preoccupation with thoughts of death, impaired judgment, neglect of personal hygiene, suicidal ideation, violent thoughts and anger, and poor interpersonal relationships. Additionally, in August 1988, the veteran was found to be medically unable to perform his position as custodial laborer with the United States Postal Service due to his history of "nervous disorders." The veteran was employed in the early 1990's by his mother's catering service, but has been unable to maintain consistent employment since 1988. Further, the evidence of record reflects that the veteran remains socially isolated and has no friends. He fears people and according to his October 1998 testimony, he spends 90 percent of his time alone. He is also afraid that he may hurt people and has specifically indicated that the only reason he has not acted on homicidal thoughts is because he doesn't want to go to jail. Accordingly, the Board concludes that the evidence of record supports a finding that the veteran has severe impairment of his social and industrial abilities, has persistent delusions, an intermittent inability to maintain personal hygiene, has impaired insight and judgment and is in persistent danger of hurting himself or others. As such, the veteran's disability picture is more nearly approximated by a 100 percent disability evaluation under DC 9205 and the veteran is entitled to an increased disability evaluation. In light of the fact that the Board has determined that the veteran is entitled to a 100 percent disability evaluation for his service-connected disability, the veteran's claim for an award of total disability based on individual unemployability is rendered moot. The governing regulation, 38 C.F.R. § 4.16, specifically provides that total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to follow a substantially gainful occupation as a result of service- connected disabilities. 38 C.F.R. § 4.16(a). However, because the Board has determined that the veteran is entitled to a 100 percent schedular rating for his service-connected schizophrenia, he is not eligible under the terms of the regulation, for a TDIU rating. Green v. West, 11 Vet. App. 472, 476 (1998) (veteran with 100 percent schedular rating for service-connected disability is for that reason not eligible for TDIU evaluation). ORDER A 100 percent disability evaluation for schizophrenic reaction, schizoaffective disorder is granted subject to the criteria which govern the payment of monetary awards. A total disability rating based on individual unemployability pursuant to 38 C.F.R. § 4.16 due to service-connected disability is denied. S. L. KENNEDY Member, Board of Veterans' Appeals