BVA9504275 DOCKET NO. 93-08 817 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to restoration of a 50 percent disability evaluation for paranoid schizophrenia. 2. Entitlement to service connection for gunshot wound residuals of the abdomen secondary to paranoid schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. D. Regan, Associate Counsel INTRODUCTION The veteran had active service from October 1974 to January 1977. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from September 1991 and April 1992 rating decisions of the Montgomery, Alabama Regional Office (hereinafter "the RO"). The September 1991 rating decision, in pertinent part, reduced the veteran's 50 percent disability evaluation for paranoid schizophrenia to 30 percent. The April 1992 rating decision denied service connection for gunshot wound residuals of the abdomen secondary to paranoid schizophrenia and continued the 30 percent evaluation for the veteran's service- connected psychiatric disorder. The veteran had been represented throughout this appeal by the Disabled American Veterans. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts on appeal that the RO erred in reducing the disability evaluation for his service-connected paranoid schizophrenia from 50 percent to 30 percent and in failing to grant service connection for gunshot wound residuals of the abdomen secondary to paranoid schizophrenia. The veteran contends, essentially, that his symptomatology indicates that a 50 percent evaluation is warranted for his psychiatric disorder. The veteran also avers that his service-connected psychiatric disorder caused him to behave in such a manner that he was shot "accidentally" by his sister. 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(s). 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 record supports the restoration of a 50 percent evaluation for the veteran's service-connected paranoid schizophrenia. For the reasons and bases discussed below, the issue of service connection for gunshot wound residuals of the abdomen secondary to paranoid schizophrenia is remanded to the RO for further development of the record. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's paranoid schizophrenia is reasonably shown to be productive of considerable impairment of social and industrial adaptability, but no more. CONCLUSION OF LAW The schedular criteria for restoration of a 50 percent disability evaluation for paranoid schizophrenia have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.344 and Part 4, including § 4.3, 4.7 and Diagnostic Code 9203 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of Veterans Affairs (hereinafter "VA") has properly assisted him in the development of his claim. A "well-grounded" claim is one which is plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). A review of the record indicates that the veteran's claim for restoration of a 50 percent disability evaluation for paranoid schizophrenia is plausible. The Board observes that the veteran failed to report for a VA examination in November 1992. It is noted that the United States Court of Veterans Appeal (hereinafter "the Court") has held that the VA's duty to assist the veteran in the proper development of is claim is "not always a one-way street" and that the veteran must be prepared to cooperate with the VA's efforts to obtain all relevant evidence. Olson v. Principi, 3 Vet.App. 480, 483 (1993). The VA made a good faith effort to assist the veteran. Accordingly a remand for additional development as to that issue is not warranted. I. Restoration of a 50 Percent Disability Evaluation for Paranoid Schizophrenia A. Historical Review The veteran's service medical records indicate that he was seen in June 1976 after reporting that he thought he was going crazy. As to an impression, it was noted that the interview was suggestive of early schizophrenia with some paranoia. A June 1976 hospital narrative summary related that the veteran had a history of irrational acts and strange thinking for a number of weeks prior to admission. The diagnosis was schizophrenia, paranoid type, manifested by loosening of associations and delusional thinking. An August 1986 medical Board report noted a final diagnosis of paranoid schizophrenia, severe and improving, manifested by delusions, paranoid fears, flat affect, disorganization of thought and inappropriate behavior. The veteran underwent a VA psychiatric examination in February 1977. The examiner diagnosed schizophrenia according to records, which was not in evidence at that time. In May 1988, service connection was granted for paranoid schizophrenia. A 10 percent disability evaluation was assigned. An August 1978 VA psychiatric evaluation report diagnosed chronic paranoid schizophrenia in only partial medicinal remission. A September 1978 rating decision increased the disability evaluation for the veteran's paranoid schizophrenia to 30 percent. The veteran underwent a VA psychiatric examination in September 1980. The diagnosis was paranoid schizophrenia. In October 1980, the disability evaluation for the veteran's psychiatric disorder was increased to 50 percent. A September 1981 VA psychiatric examination report concluded that the veteran's paranoid schizophrenia was in good control. In September 1981, the disability evaluation was reduced to 30 percent. Following an August 1982 VA psychiatric examination, the veteran's disability evaluation was reduced further to 10 percent pursuant to an October 1982 rating decision. The disability evaluation was increased again to 30 percent in December 1983. A January 1987 VA hospital discharge summary indicated that the veteran was admitted with complaints that "voices" were bothering him. The discharge diagnoses included paranoid schizophrenia, cannabis abuse and alcohol abuse. In February 1987, the veteran's disability evaluation for paranoid schizophrenia was increased to 50 percent with an effective date of February 1, 1987. A May 1987 VA hospital discharge summary reported diagnoses of paranoid schizophrenia, alcohol abuse, cannabis abuse and noncompliance with medications. The veteran was hospitalized again in October 1987 with similar diagnoses. A March 1988 VA examination report noted a diagnosis of chronic paranoid schizophrenia. The examiner commented that the veteran's illness was severe with severe social and industrial impairment. A June 1988 VA hospital discharge summary noted that the veteran was competent, but unable to compete for gainful employment. A December 1988 hospital discharge summary noted diagnoses of schizophrenia, paranoid type, chronic, noncompliance with medication and alcohol and cannabis abuse by history. An October 1988 consultation report from The University of Alabama Medical Center, Birmingham, Alabama, noted that the veteran sustained a gunshot wound after assaulting family members. The assessment was paranoid schizophrenia. A November 1988 VA hospital discharge summary noted that the veteran was hospitalized after sustaining a low velocity gunshot wound to the mid epigastrium. A discharge diagnosis of status post gunshot wound to abdomen, left pneumothorax, liver penetration, gastric penetration and minor splenic avulsion injury, inferior pole was indicated. A May 1989 VA hospital discharge summary reported diagnoses of chronic paranoid schizophrenia with acute exacerbations and non- compliance with medications. August and December 1989 hospital discharge summaries related similar diagnoses. An April 1990 VA hospital discharge summary reported discharge diagnoses of cannabis abuse, paranoid schizophrenia and non- compliance with medications. The veteran was considered unable to compete for gainful employment. September 1990 and November 1990 VA hospital discharge summaries noted similar conclusions. An April 1991 VA hospital discharge summary reported that the veteran's chief complaint was that he could not sleep. It was noted that the veteran had a history of paranoid schizophrenia and had been brought in to the hospital because he was actively responding to voices. It was observed that the veteran had poor eye contact, was tense and only answered questions after long pauses. The veteran's poverty of speech was noted to suggest depression although paranoia was also prominent. The veteran's stream of thought was relevant. There were no loose associations, tangentially or circumstantiality. The veteran denied hallucinations. He reported that he believed people could read his mind and that he was being spied upon. His judgment was questionable, he showed concrete thinking, his memory was intact and he performed serial sevens. It was noted that the veteran was competent, but was unable to compete for gainful employment. The diagnoses included paranoid schizophrenia and status post surgical repair of the abdomen secondary to gunshot wound. A May 1991 VA hospital discharge summary noted that the veteran had a history of paranoid schizophrenia. It was observed that the veteran's affect was blank appearing. The veteran had no suicidal or homicidal ideations and could not describe his hallucinations. He was not verbal, his speech was sparse and he had poor insight and judgment. It was further related that a psychological evaluation confirmed that the veteran was not paranoid or psychotic. He was treated with placebos until the day of discharge. The veteran had no paranoid ideations or any loss of contact with reality. He was noted to be competent and able to work upon release. The diagnoses included anti-social personality disorder, cannabis abuse by history and noncompliance with medication. In June 1991, the RO proposed reducing the veteran's disability evaluation for paranoid schizophrenia from 50 percent to 30 percent. A June 1991 VA hospital discharge summary indicated that the veteran had a history of multiple previous admissions. It was noted that the veteran was admitted in a mute state, but on the day after admission, he was alert and responded to questions. As to mental status, it was observed that the veteran was verbal and able to give a history. There was no abnormal behavior and his affect and mood were within normal limits. The veteran was not suicidal or homicidal. He was oriented times three, had no hallucinations, delusions or ideas of reference and his memory was good. The veteran was noted to have good insight and judgment. He was placed on a placebo. There was no evidence of psychosis, bizarre behavior, delusions or depression noted over several days. The veteran was considered competent and able to work. The diagnoses included anti-social personality disorder and family maladjustment. In September 1991, the RO reduced the disability evaluation for the veteran's paranoid schizophrenia from 50 percent to 30 percent effective December 1, 1991. B. Restoration Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). A 30 percent disability evaluation is warranted for paranoid type schizophrenia with definite impairment of social and industrial adaptability. A 50 percent evaluation requires considerable impairment of social and industrial adaptability. A 70 percent evaluation requires symptomatology which is less than that required for a 100 percent evaluation, but which produces severe impairment of social and industrial adaptability. 38 C.F.R. § 4.132, Diagnostic Code 9203 (1993). In Hood v. Brown, 4 Vet.App. 301 (1993), the United States Court of Veterans Appeals (hereinafter "the Court") stated that the term "definite" as utilized in 38 C.F.R. § 4.132 (1993) was "qualitative" in character, whereas the other descriptive terms were "quantitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment for purposes of satisfying the Board's statutory duty to articulate the "reasons and bases" for its decision under 38 U.S.C.A. § 7104(d)(1) (West 1991). The Board subsequently requested an opinion from the Office of the General Counsel of the VA. In a precedent opinion dated November 9, 1993, the General Counsel concluded that the term "definite" is to be construed as denoting "distinct, unambiguous and moderately large in degree." It represents a degree of social and industrial impairment that is "more than moderate, but less than rather large." O.G.C. Prec. 9-93 (Nov. 9, 1993). The Board is bound by this interpretation of the term "definite" when applying the provisions of 38 C.F.R. § 4.132, Diagnostic Code 9411 (1993). 38 U.S.C.A. § 7104(d)(1) (West 1991). Where there is a question as to which of two disability 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 (1993). Title 38 of the Code of Federal regulations (1993) provides in pertinent part that: Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical- industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial, asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. . . . Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a) (1993). The Board further observes that the provisions of 38 C.F.R. § 3.344(c) (1993) limit the application of 38 C.F.R. § 3.344(a) (1993). That regulation provides, in pertinent part, that: The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvements, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c) (1993). As noted above, in May 1977, service connection was granted for paranoid schizophrenia and a 10 percent disability evaluation was assigned with an effective date of January 8, 1977. The disability evaluation was increased and reduced several times following the original grant of service connection. In February 1987, the veteran's disability evaluation for paranoid schizophrenia was increased to 50 percent with an effective date of February 1, 1987. The veteran's 50 percent disability evaluation was reduced to 30 percent pursuant to a September 1991 rating decision. The reduction was effectuated on December 1, 1991. The veteran's 50 percent disability evaluation for paranoid schizophrenia had not been in effect for five years or more. Given this fact, the Board finds that 38 C.F.R. § 3.344(a) (1993) is not strictly applicable in the instant appeal. An October 1991 VA hospital discharge summary indicated that the veteran was hospitalized with complaints of being confused and of hearing voices in his head. It was noted that the veteran's perception was valid with no abnormal motor behavior. His mood and affect were appropriate and there were no suicidal or homicidal ideations. The veteran stated that he heard voices, but could not elaborate. The veteran was oriented times three and his memory appeared good. It was noted that the veteran was manipulative and vague and that his story changed several times. He had poor insight and judgment. There was no paranoid ideation, but the veteran did appear to have a paranoid personality. He showed no evidence of psychotic symptoms. The diagnoses included anti-social personality disorder, family maladjustment and multi-substance abuse. The veteran was noted to be able to work. VA treatment records dated from November 1991 to December 1991 indicated that the veteran received treatment for his psychiatric disorder. A December 1991 VA hospital discharge summary reported that the veteran had complaints of flashbacks and hearing voices. It was noted that the veteran had apparently become threatening, combative and hostile at home. The report indicated that the veteran gave a fifteen year history of recurrent psychotic events and that at some point, he did have brief psychiatric reactions and might be intermittently psychotic. As to mental status, it was noted that the veteran claimed to have auditory hallucinations and occasional visions which he could not describe. There was no delusional thinking revealed. The veteran's thought processes were good with no blocking, loosening of associations, tangentiality, circumstantiality, flight of ideas or feelings of thought insertion. It was noted that at the time of discharge, there were no delusions, the veteran's thoughts were organized and his mood was stable. The veteran's affect was appropriate. The diagnoses were residual paranoid schizophrenia, episodic marijuana abuse and poly-substance abuse by history. It was noted that the veteran was not employable. A September 1992 VA hospital discharge summary noted that the veteran had a history of numerous admissions for paranoid schizophrenia. The veteran complained of auditory hallucinations, initial and middle insomnia, anxiety and feelings of doom. He also reported some depression, admitted nervousness and denied suicidal ideation. The veteran also denied alcohol or substance abuse. It was noted that he seemed to be hostile. There was full range of affect. His mood and affect were congruent. He denied suicidal or homicidal ideation, was oriented times three and his memory was intact. It was noted that the veteran was paranoid about his family. He reported that he heard voices, but declined to describe them. There were no clear cognitive deficits. The veteran was noted to be competent for VA purposes. His current GAF score was 40 with his highest score in the past year a 70. The diagnoses included schizophrenic disorder, paranoid type and post-surgical complications following laparotomy for gunshot wound in 1988. The Board has made a careful longitudinal review of the record. It is observed that VA hospital discharge summaries dated from April 1990 to November 1990 noted diagnoses including paranoid schizophrenia and indicated that the veteran was unable to compete for gainful employment. The April 1991 VA hospital discharge summary indicated that the veteran had poor eye contact, poverty of speech suggestive of depression and paranoia, and was tense. The veteran was noted to be competent, but unable to compete for gainful employment. The diagnoses included paranoid schizophrenia. The May 1991 discharge summary related that a psychological evaluation confirmed that the veteran was not paranoid or psychotic. There were no paranoid ideations and the veteran was treated with placebos. The diagnoses included anti-social personality disorder and the veteran was noted to be able to work upon release. The June 1991 discharge summary noted no evidence of psychosis, bizarre behavior, delusions or depression. The diagnoses included anti-social personality disorder. The veteran was noted to be able to work. An October 1991 discharge summary noted that there was no paranoid ideation, but indicated that the veteran did have a paranoid personality. The diagnoses included anti-social personality disorder, family maladjustment and multi-substance abuse. The veteran was reported to be able to work. The Board observes that the December 1991 discharge summary indicated a diagnoses of residual paranoid schizophrenia and episodic marijuana abuse. The veteran was not employable. The September 1992 discharge summary noted a current GAF score of 40. The veteran denied suicidal or homicidal ideation, was oriented times three, had full range and affect, intact memory and had no clear cognitive deficits. The diagnoses was schizophrenic disorder, paranoid type and the veteran was competent. The Board observes that the veteran was diagnosed with paranoid schizophrenia in April 1991 and noted to be unable to compete for employment. Discharge summaries in May 1991, June 1991 and October 1991 indicated only that the veteran was suffering from an anti personality disorder and reported that he was employable. It is noted, however, that the December 1991 discharge summary diagnosed paranoid schizophrenia and related that the veteran was unemployable. Given the conflicting evidence of record, the provisions of 38 C.F.R. § 4.7 (1993) and affording the veteran the benefit of the doubt, the Board finds that the clinical evidence of record both prior and subsequent to the September 1991 rating decision indicated symptomatology productive of considerable social and industrial impairment. 38 C.F.R. Part 4 Diagnostic Code 9203 (1993). Accordingly restoration of a 50 percent evaluation for the veteran's paranoid schizophrenia is warranted. We observe that the veteran failed to report for a VA psychiatric examination in November 1992. The clinical evidence fails to indicate severe social and industrial impairment. In noting the provisions of 38 C.F.R. § 3.655 (1993), the Board finds no basis for an evaluation in excess of 50 percent. ORDER A 50 percent evaluation for paranoid schizophrenia is restored subject to the laws and regulations governing the grant of monetary benefits. REMAND In reviewing the record, the Board notes that treatment records from the University of Alabama Medical Center indicated that the veteran sustained a gunshot wound to the abdomen in October 1988. In September 1991, the RO sought to obtain the police report of the incident from the Bessemer Police Department in Bessemer, Alabama. In September 1991, The RO received a reply from the Bessemer Police Department noting that they had no record of the incident. It was suggested that the RO contact the Bessemer Division of Jefferson County (i.e., the Sheriff's Department). There is no indication in the record that the RO sought to obtain such records from the suggested source. Further, the Board observes that an October 1988 Consultation Report from the University of Alabama Medical Center noted that the veteran denied that he was suffering from auditory hallucinations at the time of the incident. However, it was reported that the veteran's sister believed that he was experiencing hallucinations at that time. The Board believes that a statement from the veteran's sister as to the facts and circumstances surrounding the incident would be helpful in resolving the remaining issue raised by the instant appeal. In light of the VA's duty to assist the veteran in the proper development of his claim as mandated by the provisions of 38 U.S.C.A. § 5107(b) (West 1991) and as interpreted by the United States Court of Veterans Appeals (hereinafter "the Court") in Littke v. Derwinski, 1 Vet.App. 90, 92-93 (1990), this case is REMANDED for the following action: 1. The RO should contact the Bessemer Division of Jefferson County (i.e., the Sheriff's Department) for purposes of obtaining any records, with specific reference to a police report, which may be in their possession as to the gunshot wound sustained by the veteran in October 1988. Any records obtained should be associated with the claims file for review. 2. The veteran's sister should be contacted through the appropriate channels and requested to provide a statement as to the facts and circumstances surrounding the gunshot wound sustained by the veteran in October 1988. When the requested action has been completed, and if his claim continues to be denied, the veteran should be afforded a reasonable period of time in which to respond to a supplemental statement of the case. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration if appropriate. The veteran need not take any action unless he is further informed. The purpose of this REMAND is to allow for further development of the record. No inference should be drawn from it regarding the final disposition of the veteran's claim. JEFF MARTIN 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board is appealable to the Court. This 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) (1993).