BVA9501506 DOCKET NO. 91-46 910 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a disability evaluation in excess of 30 percent for schizophrenia, paranoid type. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James L. March, Associate Counsel INTRODUCTION The veteran had active service from February 1943 to December 1945 and from February 1949 to April 1952. This appeal comes to the Board of Veterans' Appeals (Board) from a February 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 1992, the Board remanded the case for further development, which was accomplished to the extent possible. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his psychiatric disability is much worse. He alleges that he has no friends and that he rarely goes out of the house. He states that he has trouble sleeping and that he has not had steady employment since he was discharged from the service. 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. 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 preponderance of the evidence is against the veteran's claim of entitlement to an evaluation higher than 30 percent for his service-connected psychiatric disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The degree of the veteran's social and industrial inadaptability due to his paranoid type schizophrenia is not more than definite. 3. No unusual or exceptional disability factors have been presented. CONCLUSION OF LAW The criteria for an evaluation higher than 30 percent for schizophrenia, paranoid type, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b)(1), Diagnostic Code 9203 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim for an increased evaluation for psychiatric disability is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a); see Proscelle v Derwinski, 2 Vet.App. 629 (1992) (a claim of entitlement to an evaluation of a service-connected disability generally is a well- grounded claim.) When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant evidence has been obtained regarding the veteran's claim, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2 (1993) and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of his service-connected schizophrenia, and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. Disability ratings are determined by applying the criteria set forth in VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1993). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.10 (1993). Under the provisions of the Rating Schedule, a 30 percent 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 nevertheless produces severe impairment of social and industrial adaptability. A 100 percent evaluation requires active psychotic manifestations of such extent, severity, depth, persistence, or bizarreness as to produce complete social and industrial inadaptability. In Hood v. Brown, 4 Vet.App. 301 (1993), the Court of Veterans Appeals stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other neuropsychiatric rating 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 meeting the statutory requirement that the Board articulate "reasons or bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a precedent opinion, the General Counsel of the VA concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." O.G.C. Prec. 9-93 (Nov. 9, 1993). The Board and the RO are bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c). The veteran filed this claim for an increased disability rating in November 1990, alleging that his psychiatric disability was worse. In January 1991, a VA psychiatric examination was conducted. The veteran reported that he had not been hospitalized or received outpatient treatment for any emotional problems. It was noted that he was unemployed, and the veteran reported that he had not worked since service. He indicated that he stayed home all the time, attributing most of his problems to a bad back. The veteran's affect was rather flat, and his memory for recent and remote was spotty. Retention and recall were impaired, and he reported nightmares. He claimed auditory hallucinations, but refused to elaborate. He indicated that he was quite dependent upon his wife. The diagnosis was schizophrenic disorder, paranoid type, in partial remission. In September 1991, a hearing was conducted at the RO. The veteran testified that he had no friends and that he rarely went outside of the house. He indicated that he had trouble sleeping and stated that, except for odd jobs, he had not worked since service. A transcript of the hearing is on file. Another VA psychiatric examination was conducted in May 1992. The examiner noted that it was very difficult obtaining a history from the veteran. In the examiner's opinion the veteran either did not care or did not understand. No psychiatric treatment of any kind was apparently being administered. The veteran complained of back trouble and difficulty sleeping. It was noted that the veteran did not experience auditory hallucinations, but that he sometimes had visual hallucinations. Information gathering was termed "tortuous." The diagnosis was schizophrenic disorder, paranoid type, and the veteran was scheduled for an examination pursuant to the VA Physician's Guide for Disability Evaluation Examinations (IB 11-56), specifically paragraphs 1.13, and 1.14, concerning the use of a social and industrial survey. However, the veteran never appeared for the remainder of the examination, and repeated attempts to contact the veteran to reschedule were unsuccessful. Regulations require that where there is a question as to which of two evaluations is to 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. Here, the Board finds that the evidence does not support a disability evaluation in excess of 30 percent. The veteran has received no recent psychiatric treatment of any sort for his schizophrenia. The only evidence of social and industrial impairment is the veteran's own reported history and contentions. The VA attempted to provide a social survey, but the veteran failed to cooperate. Even the psychiatric examination was difficult at best, due to the veteran's failure to cooperate. Even by his own assertions, his main problem seems to be his back. The evidence fails to show that the veteran's schizophrenia creates a considerable impairment of social and industrial adaptability. Thus, the Board concludes that the criteria for the next higher evaluation have not been met. Finally, we note that no unusual or exceptional disability factors warranting extraschedular consideration have been presented. 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to an evaluation higher than 30 percent for paranoid type schizophrenia is denied. J. J. SCHULE 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. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. 67