Citation Nr: 0000534 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 98-06 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased evaluation for schizophrenia, schizoid-affective type, with posttraumatic stress disorder in excess of 50 percent prior to June 23, 1998. 2. Entitlement to an increased evaluation for schizophrenia, schizoid-affective type, with post traumatic stress disorder (PTSD), currently evaluated as 70 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. L. Mason, Associate Counsel INTRODUCTION The veteran had active service from November 1968 to April 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1997 rating decision of the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO), which continued the veteran's 50 percent evaluation for schizoid-affective type schizophrenia with PTSD. Following the receipt of additional information, the RO, in a February 1999 rating decision, increased the veteran's evaluation for schizoid-affective type schizophrenia with PTSD to 70 percent effective June 23, 1998. Thus, the issues before the Board are entitlement to an increased evaluation in excess of 50 percent prior to June 23, 1998 and entitlement to an increased evaluation in excess of 70 percent subsequent to June 23, 1998. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Also in a February 1999 decision, the RO granted entitlement to individual unemployability effective June 23, 1998. The Board notes that the veteran has filed a notice of disagreement with the effective date of the determination of individual unemployability and that the RO has issued a statement of the case on this issue. A substantive appeal as to this issue had not been received at the time this case was reviewed by the Board. Accordingly, the timeliness or adequacy of a substantive appeal is not at issue. The United States Court of Appeals for Veterans Claims (Court) has issued decisions regarding jurisdiction of the Board. If the record lacks a timely filed substantive appeal in regard to a particular issue, the Board does not have jurisdiction. Roy v. Brown, 5 Vet.App. 554 (1993). In a May 1999 rating decision, the RO determined that the veteran was incompetent for VA purposes due to his schizoid- affective type schizophrenia with PTSD. The veteran's spouse, has been appointed as his fiduciary. FINDINGS OF FACT 1. Prior to June 23, 1998, the veteran's schizoid-affective type schizophrenia with PTSD was manifested primarily by hallucinations, flashbacks, depression, difficulty sleeping, suicidal thoughts, paranoid ideas, poor memory, and Global Assessment of Functioning (GAF) scores ranging from 30 to 55, and the inability to obtain or retain employment. 2. The veteran's schizoid-affective type schizophrenia with PTSD is currently manifested primarily by hallucinations, flashbacks, depression, difficulty sleeping, suicidal thoughts, paranoid ideas, poor memory, and Global Assessment of Functioning (GAF) scores ranging from 41 to 47, and the inability to obtain or retain employment. CONCLUSIONS OF LAW 1. The criteria for a total schedular evaluation for schizoid-affective type schizophrenia with PTSD prior to June 23, 1998, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9203 (1996);38 C.F.R. § 4.130, Diagnostic Code 9203 (1999). 2. The criteria for a total schedular evaluation for schizoid-affective type schizophrenia with PTSD, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9203 (1996);38 C.F.R. § 4.130, Diagnostic Code 9203 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a)(West 1991). A claim that a disability has become more severe where the disability was previously service connected and rated, and the veteran subsequently asserts that a higher evaluation is justified due to an increase in severity since the original evaluation. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). The veteran has not alleged that any records of probative value pertaining to his schizophrenic disability may be obtained, which have not already been requested by the VA or associated with his claims folder. The Board accordingly finds that the duty to assist, as mandated by of 38 U.S.C.A. § 5107(a)(West 1991), has been satisfied. Service connection for schizophrenia, paranoid type, was granted by the RO by means of a February 1972 rating decision. The RO initially assigned a 10 percent disability evaluation under Diagnostic Code 9203. In February 1985, the RO increased the veteran's evaluation to 30 percent. In a February 1989 rating decision, the RO recharacterized the veteran's service-connected psychiatric disorder as schizoid- affective type schizophrenia with delayed type PTSD and increased the veteran's evaluation to 50 percent under Diagnostic Code 9203 following a period of hospitalization for which benefits were granted under 38 C.F.R. § 4.29. The Board notes that the veteran has received benefits under 38 C.F.R. § 4.29 on several occasions following periods of hospitalizations. Disability evaluations are determined by comparing the veteran's current 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 (1999). On and before November 6, 1996, the rating schedule for psychotic disorders directed that a 50 percent disability evaluation was warranted for a paranoid schizophrenic disorder when there was considerable impairment of social and industrial adaptability. 38 C.F.R. § 4.132, Diagnostic Code 9203 (1996). A 70 percent evaluation required lesser symptomatology than that of 100 percent, such as to produce severe impairment of social and industrial adaptability. Id. A 100 percent evaluation is warranted for active psychotic manifestations of such extent, severity, depth, persistence, or bizarreness as to produce social and industrial adaptability. Id. On November 7, 1996, the Schedule For Rating Disabilities applicable to psychiatric disabilities was revised. Under the revised rating schedule, a 50 percent disability evaluation is warranted for schizophrenia which is productive of occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring 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 or forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9203 (1999). A 70 percent evaluation requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. Id. The Court has clarified that where the law or regulation changes after a claim has been filed or reopened but before the judicial appeal process has been concluded, the version most favorable to appellant should apply. Cohen v. Brown, 10 Vet. App. 128 (1997); see also Karnas v Derwinski, 1 Vet. App. 308 (1991). The veteran filed a claim of entitlement to an increased rating for his service-connected psychiatric disorder in August 1996. Accordingly, the Board will consider both the old and revised criteria in evaluation the claim. I. Increased Rating Prior to June 23, 1998 A VA hospital report dated in May 1995, reported that the veteran was admitted with complaints of auditory hallucinations, sleep impairment, and depression. At the time of admission, the veteran was cooperative, depressed, and anxious. He denied suicidal or homicidal ideations. He was alert and oriented. His memory was functioning and his insight was fair. The veteran's intellectual functioning was intact. In June 1995, VA outpatient treatment records reported nervousness with palpitations. VA outpatient treatment records dated in November 1995 report that the veteran was neatly dressed and groomed. He was reserved but warmed with active friendliness. He discussed his fears from childhood. The assessment was paranoia, related to night and death, with dreams. In March 1996, the veteran complained of trouble sleeping, and answered all questions that were asked. The assessment was schizo- affective disorder. Thereafter in September 1996, VA outpatient treatment records note that the veteran was much improved on the medication. He was sleeping better and did not have bad dreams. It was noted that the veteran was appropriately dressed and groomed, and although quiet and subdued, warmed up with active friendliness. No suicidal or homicidal ideations were elicited. However, at a March 1997 VA examination, the veteran reported that he was hearing voices, was not sleeping well, had a bad memory, couldn't be around people, and was doing worse. On evaluation, he displayed a flat aspect, and appeared very shy with low self-esteem. His memory and concentration were poor. The examiner diagnosed a feeling affective disorder and determined that the GAF score was 55. However, the examiner specifically noted that the veteran could not hold a job, had been unemployed for 12 years, and had poor concentration and memory. A June 1997 VA Medical Center (VAMC) discharge summary revealed that the veteran was hospitalized complaining of hearing voices, depression, and experiencing nightmares. On evaluation, his appearance was fair and his mood was depressed with some anxiety features. His memory was intact but only fair for recent and remote events. His judgment and insight were fair. He denied suicidal and homicidal thoughts and there were no hallucinations noted. The diagnosis was recurrent major depression. The veteran's GAF rating was 40 to 50, with 50 as the highest level in the past year. It was noted that the veteran's activities were limited by his illnesses. The veteran was again hospitalized in November 1997. The discharge summary indicated he was admitted with schizophrenia, auditory hallucinations, and depression. On evaluation, his appearance was described as fair, but he had good eye contact and was cooperative. His mood and affect were depressed with some tension. He admitted to auditory hallucination, but reported no suicidal or homicidal ideations. His memory was intact, but recent memory was poor, and remote memory was described as fair. The diagnoses included schizophrenia, paranoid type and chronic hemorrhoids. The GAF rating was 30 to 40, with 40 as the highest rating in the last year. It was noted that the veteran's activities were limited by his illnesses. In a February 1998 rating decision, the RO granted a temporary total evaluation from November 6, 1997 to November 30, 1997 under 38 C.F.R. § 4.29 for the veteran's November 1997 hospitalization and thereafter continued the 50 percent evaluation. VA medical records from March to July 1998 show that the veteran was seen complaining of bad dream and auditory and tactile hallucinations. Paranoid type schizophrenia was diagnosed. At a June 1998 VA examination, the veteran reported that he had been unable to hold a job since 1985 due to his nervous disorder and frequent hospitalizations. The veteran's complaints included hearing voices, paranoid feelings, mood swings, nightmares and flashbacks about Vietnam, nervousness, depression, bad temper, trouble sleeping, isolation, and guilt and anger. On evaluation, he was cooperative, but hyper alert with increased startle response. His speech was described as under productive but he answered the questions. He was described as aloof with paranoid ideas and he admitted auditory hallucinations. He had mood swings from depression to elation. His affect was blunted to constricted and his insight and judgment were impaired. The examiner found that the veteran had severe impairment in his social and industrial adaptability and was incompetent to handle his funds and personal affairs. The diagnoses included paranoid type schizophrenia with affective features and delayed PTSD. His GAF rating was 41, and the examiner specifically stated that the veteran had severe impairment in social and occupational functioning and was unable to work. In a February 1999 rating decision, the RO increased the evaluation for schizoid-affective type schizophrenia with PTSD to 70 percent, effective from the date of the June 1998 VA examination. Accordingly, the issues before the Board are entitlement to an increased evaluation in excess of 50 percent prior to June 23, 1998, and entitlement to an increased evaluation in excess of 70 percent subsequent to June 23, 1998. According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, (DSM IV), a GAF score of 31-40 is described as some impairment in reality testing or communication (e.g., speech is illogical at times, obscure or irrelevant) or major impairment in several areas, such as work, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, is unable to work). A GAF score of 41-50 is defined in the DSM IV as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Although the GAF score does not neatly fit into the rating criteria, the Board is under an obligation to review all the evidence of record. The fact that evidence is not neat does not absolve the Board of this duty. The Court, in Carpenter v. Brown, 8 Vet. App. 240 (1995), recognized the importance of the GAF score and the interpretations of the score. With regard to effective dates for claims for increased disability ratings, the law provides as follows: § 5110. Effective dates of awards (a) Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. . . . . (b)(2) The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C.A. § 5110(a), (b)(2) (West 1991) (emphasis added). The corresponding VA regulations provide as follows: § 3.400 General. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. (o) Increases. (1) General. Except as provided in paragraph (o)(2) of this section and § 3.401(b), date of receipt of claim or date entitlement arose, whichever is later. A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection. (2) Disability compensation. Earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400 (1999). The Court has held that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise the general rule of 38 C.F.R. § 3.400(o)(1) applies. See Harper v. Brown, 10 Vet App 125, 126 (1997). Thus, three possible dates may be assigned depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). Harper, 10 Vet App at 126. Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2) (1999). In this case, the veteran's claim of entitlement to an increased rating for his service-connected psychiatric disorder was received by the RO on August 29, 1996. Accordingly, the earliest possible date for a rating in excess of 50 percent is August 29, 1995. However, the medical evidence of record does not show findings that meet the criteria for an increased rating during this time, under either the old or the revised criteria. VA outpatient treatment records dated in November 1995 report that the veteran was neatly dressed and groomed. He was reserved but warmed with active friendliness. He discussed his fears from childhood. The assessment was paranoia, related to night and death, with dreams. In March 1996, the veteran complained of trouble sleeping, and answered all questions that were asked. The assessment was schizo-affective disorder. The evidence of record for the year preceding the date of the veteran's claim does not show severe impairment of social and industrial adaptability, nor was there evidence of suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. Additionally, the evidence of record does not show that the increase in disability preceded the claim by more than a year, either under the old or the revised criteria. A VA hospital report dated in May 1995, reported that the veteran was admitted with complaints of auditory hallucinations, sleep impairment, and depression. At the time of admission, the veteran was cooperative, depressed, and anxious. He denied suicidal or homicidal ideations. He was alert and oriented. His memory was functioning and his insight was fair. The veteran's intellectual functioning was intact. In June 1995, VA outpatient treatment records reported nervousness with palpitations. The first evidence of record that the veteran experienced auditory hallucinations, paranoid ideas, depression, suicide thoughts, difficulty sleeping, nervousness, flashbacks, nightmares, and isolation are reports of VA examinations and hospitalizations beginning in March 1997. At the March 1997 VA examination, the examiner specifically stated that the veteran could not hold a job, had been unemployed for 12 years, and had poor concentration and memory. VA examiners, in June 1998 and November 1998, indicated that the veteran has severe impairment in social and industrial adaptability. The Board notes that from the March 1997 VA examination on, the VA examiners have been in agreement that the veteran is unable to work due to his schizophrenic disorder. Additionally, the VA examination conducted in March 1997, reported the GAF rating was 55, however, less than 3 months later during a June 1997 hospitalization, a VA examiner found that the veteran's GAF rating ranged from 40 to 50. Subsequently VA examiners indicated that the veteran's GAF rating ranged from 30 to 41. Accordingly, the Board finds that a 100 percent disability evaluation for schizoid-affective type schizophrenia with PTSD, under both the old and revised criteria, is warranted, effective March 31, 1997, the date of the VA examination and the date the increase was factually ascertainable shown to have occurred. II. Increased Rating The Board has determined that a 100 percent evaluation is warranted for the veteran's service-connected psychiatric disorder prior to June 23, 1998. In so finding, the Board concludes that an increased rating to 100 percent is also granted, based upon the recorded history of the disability as well as the current medical findings. A November 1998 VAMC discharge summary revealed that the veteran was hospitalized complaining of hearing voices, feeling nervous and depressed, nightmares and flashbacks, trouble sleeping, suicidal thoughts, isolation, and intrusive thoughts. On evaluation, he was suspicious and aloof with coherent but irrelevant speech. His affect was blunted to constricted and his mood was anxious and depressed. He admitted to auditory hallucinations and suicidal ideas and expressed paranoid ideas. The veteran was placed on a locked ward and observed. His condition improved and stabilized and he was released. The physician noted that the veteran was incompetent and had severe impairment in his social and industrial adaptability. His prognosis was guarded. The diagnoses included paranoid type schizophrenia and delayed PTSD. His GAF rating was 47. Accordingly, the Board finds that an increased rating of 100 percent for schizoid-affective type schizophrenia with PTSD, under both the old and revised criteria, is warranted. ORDER A 100 percent evaluation for schizoid-affective type schizophrenia with PTSD, effective March 31, 1997, is granted, subject to the controlling regulations applicable to the payment of monetary benefits. An increased rating for schizoid-affective type schizophrenia with PTSD, is granted, subject to the laws and regulations governing the payment of monetary benefits. JOY A. MCDONALD Acting Member, Board of Veterans' Appeals