Citation Nr: 0003957 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 92-03 999A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a temporary total disability rating for a period of hospitalization from June 29, 1996, to July 30, 1996. 2. Determination of the proper initial rating for service- connected paranoid schizophrenia, competent, currently assigned a 50 percent disability evaluation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL Appellant, his mother, and grandmother ATTORNEY FOR THE BOARD Richard A. Cohn, Associate Counsel INTRODUCTION The veteran served on active duty from May 1986 to August 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 1992 and September 1996 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (RO) which, respectively, granted service connection for major depression at an assigned disability rating of 10 percent and denied entitlement to a temporary and total disability rating for a period of hospitalization. A December 1992 rating decision increased the evaluation for major depression to 30 percent. In March 1999, the RO increased the disability rating for what is now characterized as service-connected paranoid schizophrenia to 50 percent. The Board also notes that in a June 1999 written statement, the veteran asserted a claim for compensation under 38 U.S.C.A. § 1151 for the purported failure by VA to diagnose diabetes. It appears that the RO is in the process of working on this claim, and the matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. All evidence necessary for equitable resolution of the issues on appeal has been obtained. 2. The veteran's sole service-connected disability is paranoid schizophrenia, currently rated as 50 percent disabling. 3. The veteran's service-connected disabilities did not necessitate hospital treatment for a continuous period in excess of 21-days from June 29, 1996, to July 30, 1996. 5. The veteran's paranoid schizophrenia is manifested by symptoms including depressed mood, diminished interest in activities, decreased appetite, sleep disruption, psychomotor retardation, loss of energy, feelings of hopelessness, helplessness and low self esteem, indecisiveness, decreased concentration, panic attacks, auditory hallucinations, severe paranoid ideation, lack of ability to concentrate and focus attention, memory loss, poor insight and judgment, and an inability to establish and maintain effective work and social interpersonal relationships. CONCLUSIONS OF LAW 1. The criteria for a temporary total disability rating for a period of hospitalization from June 29, 1996, to July 30, 1996, have not been met. 38 C.F.R. § 4.29 (1999). 2. The criteria for an evaluation of 100 percent for paranoid schizophrenia have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.125-4.132, Diagnostic Code 9203 (1996); 38 C.F.R. §§ 4.125-4.130, Diagnostic Code 9203 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran asserts that his service-connected paranoid schizophrenia is more disabling than contemplated by the current 50 percent disability rating. He further contends that he is entitled to a temporary total disability rating for hospitalization at the substance abuse and treatment unit of the VA Medical Center in San Antonio, Texas from June 29, 1996, to July 30, 1996. The Board finds initially that the veteran's claims are well grounded, see 38 U.S.C.A. § 5107(a) (West 1991), because a challenge to a disability rating assigned to a service- connected disability and a claim for temporary total disability for a service-connected disability both are sufficient to establish well-grounded claims for an increased rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Caffrey v. Brown, 6 Vet. App. 337, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board also is satisfied that the record includes all evidence necessary for the equitable disposition of this appeal and that the veteran requires no further assistance. Temporary Total Disability Rating A temporary total (100 percent) disability rating is warranted upon a showing that a veteran has been hospitalized or placed under observation at VA expense for a service- connected condition for a period of more than 21-days. 38 C.F.R. § 4.29(a) (1999). This rating also is warranted when hospital admission is for treatment of a nonservice-connected disability provided that hospitalization includes more than 21-days of treatment for a service-connected disability, in which case a total rating is appropriate from the first day of such treatment. 38 C.F.R. § 4.29(b). The record discloses that the veteran's sole service- connected disorder is paranoid schizophrenia. In a November 1997 written statement he acknowledges that he was hospitalized at the Audie Murphy VA medical facility in San Antonio, Texas, in part, for alcohol and drug abuse. However, he further contends that the primary reason for his admission was treatment for chronic paranoid schizophrenia for which he was evaluated and treated each day of his hospitalization. The claims file includes a July 24, 1996 letter from the Chief of the Substance Abuse and Treatment Unit (SATU) stating that the veteran had been admitted on June 29, 1996 and that he was scheduled for discharge on July 30, 1996. The letter states that during his hospital stay "he also received treatment for his schizophrenic condition." A social work summary prepared during the veteran's hospitalization states that he sought "inpatient Substance Abuse Treatment Unit rehabilitation for alcohol and crack use." The discharge summary from the veteran's hospitalization lists three admission diagnoses - alcohol and cocaine dependence and history of chronic paranoid schizophrenia. The discharge summary further states that about a week before admission the veteran had been discharged from a VA medical facility in Chicago where he underwent acute stabilization of exacerbation of chronic paranoid schizophrenia brought on by failure to take medication and by cocaine and alcohol abuse. A mental status examination disclosed that upon admission the veteran was well-groomed, calm, cooperative, made good eye contact, spoke spontaneously and with normal rate, volume and paucity and displayed a normal level of psychomotor activity, euthymic mood and an appropriate affect with mild decrease in range and intensity, clear sensorium, full orientation, good concentration and memory, average intelligence, fair judgment, good insight and normal thought processes without flight of ideas, looseness of associations, homicidal or suicidal ideations, auditory, visual or tactile hallucinations, tangentially, delusions or paranoia. The veteran's Global Assessment of Functioning (GAF) score upon admission was 60. The portion of the discharge summary describing the veteran's hospital course identifies alcohol and crack cocaine dependence as the primary problem for which he underwent detoxification and a 30-day inpatient rehabilitation program. Chronic paranoid schizophrenia, identified as the veteran's second problem, is described as well-controlled with medication. The veteran also underwent psychological testing during his hospitalization and received treatment for hypertension and a fungal infection. The diagnoses, GAF score and mental examination upon discharge were essentially the same as those at the time of the veteran's admission. The hospital summary indicates that the veteran was admitted to the SATU after stabilization of a flare-up of his paranoid schizophrenia expressly to manage substance abuse that had, in part, brought on the episode. An admission mental status examination unambiguously showed that symptoms associated with the veteran's paranoid schizophrenia, identified only as "by history" both upon admission and discharge, had abated sufficiently to permit him to embark upon the SATU's substance abuse program. This conclusion is further supported by the discharge summary notation describing the primary course of treatment as a 30-day substance abuse program targeted to alcohol and drug addiction and relapse prevention. The notation from a July 9, 1996, social worker's report also confirms this conclusion as does the letter from the SATU's chief clearly suggesting that whatever treatment the veteran received for his service-connected disorder was secondary to substance abuse treatment. There is no competent medical evidence documenting more than 21- days of in-patient treatment for paranoid schizophrenia. Accordingly, the Board finds that the totality of the medical evidence demonstrates that the veteran was hospitalized in excess of 21-days because of his substance abuse and not because of his paranoid schizophrenia. The record reflects that the veteran did not receive in excess of 21-days of in- patient treatment for paranoid schizophrenia. The benefit of the doubt doctrine is not applicable here because the preponderance of the evidence is against the claim. Therefore, the claim for a temporary total rating for the period of hospitalization from June 29, 1996, to July 30, 1996, must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Rating for paranoid schizophrenia Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule) to the veteran's current symptomatology. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4 (1998). The Board reviews the extent to which a service-connected disability adversely affects the veteran's ability to function under the conditions of ordinary daily life. The Board then assigns a rating which, as far as practicable, is based upon the extent to which the current disability impairs the veteran's earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. If two evaluations are potentially applicable the higher evaluation will be assigned if the disability appears to approximate more closely the criteria required for that rating. Otherwise, the Board assigns the lower rating. 38 C.F.R. § 4.7. In a claim of disagreement with a disability rating assigned contemporaneously to a grant of entitlement to service connection, the facts of a particular case may require assignment of separate disability ratings for separate time periods. Fenderson v. West, 12 Vet. App. at 126. Since the February 1992 grant of service connection for major depression, the RO has rated the veteran's psychiatric disability under various Diagnostic Codes (DCs) depending upon the characterization of the disorder. The RO rated major depression as 10 percent disabling under DC 9207 in February 1992 and as 30 percent disabling in December 1992. In June 1997, the RO continued the 30 percent evaluation for a psychiatric condition under DC 9434 under the revised regulatory criteria for evaluating psychiatric disorders. In May 1999 the RO assigned a 50 percent rating to paranoid schizophrenia, competent, also under DC 9203. The veteran's service-connected schizophrenia is evaluated under Diagnostic Code 9203 at 50 percent. Previously, that rating was provided when a psychotic disorder resulted in considerable impairment of social and industrial adaptability. 38 C.F.R. § 4.132, Diagnostic Code 9203 (1996). A 70 percent disability rating was warranted where the symptoms of the service-connected psychotic disorder were less than that required for a 100 percent disability rating, such as to produce severe impairment of social and industrial adaptability. Id. A 100 percent schedular evaluation was warranted where the evidence showed active psychotic manifestations of the service-connected psychotic disorder of such extent, severity, depth, persistence, or bizarreness as to produce total social and industrial inadaptability. Id. During the pendency of this appeal, regulatory changes amended the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1996), including the rating criteria for evaluating psychiatric diseases. This amendment to the Schedule became effective November 7, 1996. See 61 Fed. Reg. 52695-52702 (October 8, 1996). In addition to modified rating criteria, the amendment provided that the diagnoses and classification of mental disorders be in accordance with DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). See 38 C.F.R. §§ 4.125 through 4.130 (1999). When a law or regulation changes after a claim has been filed but before the administrative appeal process has been concluded, VA must apply the regulatory version that is more favorable to the veteran. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). However, where the amended regulations expressly provide an effective date and do not allow for retroactive application, the veteran is not entitled to consideration of the amended regulations prior to the established effective date. Rhodan v. West, 12 Vet. App. 55 (1998); see also 38 U.S.C.A. § 5110(g) (West 1991) (where compensation is awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the Act or administrative issue). Therefore, the Board must evaluate the veteran's claim for an increased rating from November 7, 1996, under both the old criteria in the VA Schedule for Rating Disabilities and the current regulations in order to ascertain which version is most favorable to the veteran, if indeed one is more favorable than the other. Although the new regulations were not in effect when the rating decision on appeal was made, the RO considered the new regulations in subsequent decisions. Some of the more recent rating decisions adjudicated the appropriate disability rating for the veteran's service-connected schizophrenia under the new regulations, and the November 1997 supplemental statement of the case provided notice to the veteran and his representative of the new regulations. Therefore, the veteran and his representative have had an opportunity to submit evidence and argument related to the new regulations. See Bernard v. Brown, 4 Vet. App. 384 (1993). The amended regulations in 38 C.F.R. § 4.130 establish a general rating formula for mental disorders. The amended formula assesses disability according to the manifestation of particular symptoms, providing more objective criteria for assigning a disability evaluation. Although not intended to liberalize rating criteria, the amended formula may be more beneficial to a claimant if the medical evidence shows symptoms qualifying the claimant for a higher disability evaluation than that assigned by the RO under the prior regulation. See VAOPGCPREC 11-97. Under the new criteria, a 50 percent disability rating 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. The criteria for a 70 percent rating are: 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. And, the criteria for a 100 percent rating are: 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. 38 C.F.R. § 4.130 (1999). Associated with the claims file is a substantial body of medical records disclosing that the veteran received frequent VA and private outpatient treatment and hospitalization for several disorders including a service-connected psychiatric disorder and for polysubstance dependence from June 1991 to January 1999. Although the RO has recharacterized the veteran's service- connected psychiatric disorder several times over the past ten years, soon after his discharge from service, VA doctors diagnosed him with the same mental disorder for which he is currently diagnosed and he has essentially been rated for a psychosis over the years. VA medical records disclose that the veteran was hospitalized in June 1991 for auditory hallucinations and paranoia and he was diagnosed with paranoid schizophrenia in September 1991. An October 1991 psychiatric examination noted that the veteran had lost his Post Office job because of his nervousness, inability to concentrate and strange behavior. In November 1991 the Social Security Administration (SSA) notified the veteran that he was eligible to receive monthly payments for an unidentified disability. Payments were to be made through the veteran's grandmother. In consideration of the foregoing the Board finds that the veteran's service-connected disorder is properly evaluated under DC 9203. During his July 1992 RO hearing the veteran testified that he had auditory hallucinations if he did not take his medication. He also stated that he lived alone, that he was often depressed and afraid to go where there were people and that he could not concentrate very well. He reported seeking VA outpatient treatment for his psychiatric disorder. He said he had been taking some college classes but had to stop them when his psychiatric symptoms flared-up. The veteran also testified that his disability SSA payments were based upon the VA diagnosis for paranoid schizophrenia. The veteran's grandmother testified that the SSA payments were made to her on the veteran's behalf because the veteran was unable to manage his own affairs, including his money. The grandmother also confirmed that the veteran's fear of others, lack of concentration and auditory hallucinations cost him his Post Office job. She described him as frequently unmanageable and in need of her assistance for many of the routine details of his daily life. An August 1992 psychiatric evaluation notes that the veteran had auditory hallucinations if he did not take his medication and that he was bothered by feelings of inferiority, guilt and unnecessary suspicion of people. He also had difficulties with depression, concentration, increased libido, uneven appetite and handling money. Otherwise, he was pleasant, neatly dressed with an appropriate affect and full orientation and without visual hallucinations. He reported no difficulty sleeping. During his September 1993 RO hearing the veteran testified that he remained unemployed and that he was beginning to have trouble at school because of his inability to concentrate. He also reported fear that some of his classmates watched or thought about him, thereby causing auditory hallucinations. He claimed no close friends, that he continued to go for outpatient VA treatment and that he continued to take medication for his psychiatric disability. The veteran's grandmother reported that the veteran often was confused, had an alcohol problem for which he attended Alcoholics Anonymous meetings and that he could not handle money or take care of his ordinary daily needs. The veteran's mother testified that she did not think the veteran's condition was improving. Medical records disclose that the veteran underwent substantial VA and private medical treatment and hospitalization for schizophrenia and for drug and alcohol abuse from August 1991 to March 1995. Treatment included VA hospitalization for alcohol, cocaine and nicotine dependence and paranoid schizophrenia in October and November 1994 and May and June 1995, and private hospitalization for paranoid schizophrenia, depression psychosis and substance dependence in December 1994 and March 1995. In May, June and July 1996 the veteran underwent the drug and alcohol detoxification and rehabilitation hospitalization in Chicago and Texas described in greater detail in the first part of this decision. In May 1997 the veteran again underwent VA hospitalization for schizoaffective disorder and for polysubstance dependence. A mental examination upon admission disclosed paranoid ideation and depression and the veteran reported command auditory hallucinations and suicidal ideation. The veteran was alert and fully oriented, cooperative, well- groomed with normal speech and motor activity and with no cognitive deficits. His GAF score was 35 to 40. He was unemployed. The veteran checked himself out of the hospital against doctor's advice. His prognosis was poor. A VA physician who examined the veteran in October 1997 noted that the veteran had a history of six to seven years of psychiatric treatment with seven VA hospital admissions, continuing VA outpatient psychiatric treatment and an inability "to work in any gainful employment." Objective findings included tangential thought processes, suspicious tendencies, paranoid delusions visual and auditory hallucinations, short attention span, blunted affect and anxious and depressed mood. The examiner also noted that the veteran dressed appropriately and was capable of taking care of personal hygiene, spoke coherently, was without suicidal or homicidal thoughts and had good long-term memory. He was diagnosed with chronic paranoid schizophrenia and his GAF score was 40. In November 1997 the veteran checked himself into a VA hospital complaining of paranoia and suicidal ideation. He was diagnosed with substance induced psychosis, mood disorder and polysubstance dependence, possible schizoaffective disorder and a history of schizophrenia. After two days of treatment he discharged himself when he felt better. His GAF score was 40 at admission and 65 to 70 at discharge. VA medical records show that the veteran continued to receive VA outpatient treatment and hospitalization for substance abuse and paranoid schizophrenia from March to July 1998. Upon an April 1998 hospital admission he was also diagnosed with HIV and AIDS and his GAF score was 45. A July 1998 note from one of the veteran's VA psychiatrists indicated that the veteran's substance abuse and paranoid schizophrenia symptomatology overlapped. During the time the psychiatrist provided treatment the veteran had abused drugs and alcohol only intermittently. The psychiatrist listed the veteran's paranoid schizophrenia symptoms as including depressed mood, diminished interest in activities, decreased appetite, sleep disruption, psychomotor retardation, loss of energy, feelings of hopelessness, helplessness and low self esteem, indecisiveness and decreased concentration. A VA psychiatrist who examined the veteran in September 1998 noted the veteran's report of continued unemployment because of disorganized thoughts and suspicion of others. The examiner found the veteran's appearance, disposition, motor functions, mood, affect, sensorium, speech, orientation, judgment, and abstract thinking to have been normal. Other objective findings included persistent delusions and auditory hallucinations, short term memory loss, depression and sleep impairment. The psychiatrist also commented that the veteran's symptomatology was probably aggravated by substance abuse but that "[s]ymptomatology associated with substance abuse is not prominent." The examiner further opined that the "sleep disorder seems clearly related to disorder in his thinking and perception consistent with nontoxic etiology." The GAF score was 48 to 52. A contemporaneous social survey disclosed that the veteran had a young son in Texas to whom he wrote occasionally, that he recently had dropped out of school because he couldn't keep up with classwork and that he lived off SSA disability and VA payments. During his February 1999 RO hearing the veteran testified that he continued to hear voices and to experience sleep disturbance, racing thoughts and an inability to concentrate. He stated that he left school because of his inability to concentrate and because he felt people were after him. He also acknowledged his drug and alcohol abuse problem. The veteran's grandmother testified that he remained unable to face crowds or to handle his own financial and other affairs without help and that his schizophrenia was unchanged from the time it was first diagnosed. The veteran underwent private hospitalization for schizoaffective disorder and alcohol and cocaine dependence in January 1999, after which his attending psychiatrist provided a February 1999 letter pertaining to the veteran's schizophrenia, stating: [The veteran's] symptoms have included panic attacks, auditory hallucinations, and severe paranoid ideation. At frequent and various times his symptoms have affected his sleep pattern, ability to concentrate and focus his attention, his memory, his insight into his illness, and his judgment. Probably most markedly, [the veteran's] symptoms have greatly disturbed his ability to establish and maintain effective work and social interpersonal relationships. Because of his illness, [the veteran] is frequently depressed and moody, and at times has had some suicidal ideation. [The veteran] has been hospitalized psychiatrically four times within the past year. His GAF scores are 35/30-25. During his February 1999 RO hearing the veteran reiterated the testimony he had provided at prior hearings, stating that his service-connected disorder left him unable to work or to establish normal interpersonal relationships. The veteran's grandmother also recapitulated her testimony from prior hearings. The Board acknowledges the overlapping symptomatology attributable to the veteran's service-connected paranoid schizophrenia and nonservice-connected substance abuse disorders. Nevertheless, the Board finds that the medical evidence distinguishes the symptomatology sufficiently to rate the service-connected disorder by itself. For example, in July 1998 one of the veteran's VA psychiatrists noted that although his substance abuse was intermittent he showed consistent symptomatology of paranoid schizophrenia. In addition, the VA psychiatrist who examined the veteran in September 1998 found substantial symptomatology of paranoid schizophrenia but expressly noted that the veteran did not display prominent substance abuse symptomatology. Finally, the private psychiatrist who provided a litany of psychiatric symptomatology in the January 1999 letter associated such symptomatology with the veteran's service-connected paranoid schizophrenia. The Board, therefore, is of the opinion that the veteran manifests symptoms appropriate to an evaluation of 100 percent for paranoid schizophrenia under both the old and the revised rating criteria. The record provides ample evidence of the veteran's occupational and social impairment, his chronically depressed mood and extreme difficulty in maintaining employment and in establishing and maintaining relationships as a result of his paranoid schizophrenia. Also well-documented is the veteran's impaired thought processes, hallucinations and memory loss. Furthermore, GAF scores consistently in the 30s indicate major or serious dysfunction. See DSM-IV adopted by the VA at 38 C.F.R. §§ 4.125 and 4.126. The Board also notes the effect of the veteran's service-connected paranoid schizophrenia on his inability to retain and maintain employment and to continue his education. In consideration of the foregoing, the Board finds that the evidence shows that the severity of symptomatology associated with the veteran's paranoid schizophrenia constitutes total social and industrial inadaptibility and impairment which warrants a 100 percent schedular rating. See 38 C.F.R. § 4.7. ORDER The claim for a temporary total disability rating for a period of hospitalization from June 29, 1996, to July 30, 1996, is denied. A 100 percent rating for paranoid schizophrenia is granted, subject to the laws and regulations governing the payment of monetary benefits. S. L. KENNEDY Member, Board of Veterans' Appeals