Citation Nr: 0003486 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 98-10 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a rating in excess of 50 percent for schizophrenia. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD S. L. Wright, Associate Counsel INTRODUCTION The veteran served on active duty from January 1978 to January 1987. This matter comes before the Board of Veterans' Appeals (Board) from a January 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDINGS OF FACT The veteran's schizophrenia is not manifested by more than considerable social and industrial impairment, nor is it productive of more than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The schedular criteria for a rating in excess of 50 percent for the veteran's schizophrenia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.132, Code 9205 (1996); 38 C.F.R. § 4.130, Code 9205 (effective November 7, 1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that his schizophrenia is more severely disabling than reflected by his current 50 percent rating. He specifically argues that he cannot work due to symptomatology associated with this schizophrenia. Therefore, he believes that a higher rating should be assigned in this matter. This is an original claim placed in appellate status by a notice of disagreement (NOD) taking exception with the initial rating award dated January 1997. Accordingly, his claim must be deemed "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and VA has a duty to assist the veteran in the development of facts pertinent to the claim. See Fenderson v. West, 12 Vet. App. 119 (1999) (applying duty to assist under 38 U.S.C.A. § 5107(a) to initial rating claims); cf. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (increased rating claims). Under these circumstances, VA must attempt to obtain all such medical evidence as is necessary to evaluate the severity of the veteran's disabilities from the effective date of service connection through the present. This obligation was satisfied by the examinations and records described below, and the Board is satisfied that all relevant facts have been properly and sufficiently developed. Disability ratings are determined by evaluating the extent to which the 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; 38 C.F.R. §§ 3.312, 4.20, 4.114 (1999). The Board notes that, after the veteran filed his claim in 1996, the criteria for diagnosing and evaluating psychiatric disorders were changed. When a law or regulation changes while a case is pending, the version most favorable to the veteran applies, absent congressional intent to the contrary. See Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). Therefore, the Board will analyze the veteran's claim under both sets of criteria to determine if one is more favorable to the veteran. Under the version of Diagnostic Code 9205 which was in effect prior to November 7, 1996, a 50 percent evaluation was warranted where the ability to establish or maintain effective or favorable relationships with people was considerably impaired and, by reason of the psychoneurotic symptoms, the reliability, flexibility, and efficiency levels were so reduced as to result in considerable industrial impairment. A 70 percent evaluation was warranted where ability to establish or maintain effective or favorable relationships with people was severely impaired and the psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to maintain to retain employment. See 38 C.F.R. § 4.132, Diagnostic Code 9205 (1995). Beginning November 7, 1996, PTSD is to be evaluated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9205 (1999). The revised regulation provides that a 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened effect; circumstantial, circumlocutory, or stereotyped speech; paranoid attacks more than once a week; difficulty in understanding complex commands; impairment of short and long- term memory; 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 warranted where symptomatology causes 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships. Service connection for schizophrenia was established by rating decision dated January 1997 and a 50 percent rating was assigned, effective January 11, 1996. As the veteran has not disagreed with this effective date, the Board must consider all the evidence pertaining to the veteran's mental status from January 11, 1996 to determine whether the 50 percent rating appropriately reflects the severity of his disability. In an effort to determine the adequacy of his current rating, the Board has carefully considered VA examination reports, VA outpatient and inpatient treatment notes, and the veteran's VA Vocational Rehabilitation file. As an aside, the Board notes that the veteran has submitted Social Security Administration records for consideration. These records do show that the veteran was deemed disabled due to his psychosis. However, these records cover the period from 1986 to 1989; they are not relevant as to the status of the veteran's schizophrenia in recent years. On examination on December 13, 1996, the veteran reported that he was unemployed and had last worked under temporary service of the city of Milwaukee. He reported that he had not been able to maintain employment since his psychotic break in service. The examiner found the veteran to be casually dressed with adequate hygiene and grooming. He was alert, cooperative and fully oriented throughout the interview. He denied experiencing auditory of visual hallucinations but paranoid delusions were noted as the veteran reported that he was "abused by the government." Speech was normal in tone and volume although there were episodes of minor stuttering and some unusually long pauses. Although speech was generally logical, organized and productive, there were some episodes of disorganized speech. When the veteran was asked to explain what he meant, he became angry at the examiner's inability to understand. The veteran became very animated when discussing past hallucinatory experiences and at one point he enacted an experience where he felt his arm disappeared and then returned. The veteran complained of a depressed mood, but this was not evident during the interview. He did report some ongoing suicidal ideation but denied current intent. He had made two attempts in the late 1980s. The veteran's affect was full and appropriate in content. The examiner also noted that substance abuse remained a problem for the veteran as he continued to drink and did not show insight into his problem. He was able to recall four unrelated works after a brief delay and abstract thinking and judgment appeared within normal limits. There was no evidence of problems with memory or calculation. He was assigned a Global Assessment of Functioning score of 41, denoting serious symptoms or serious impairment. See American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (Fourth Ed. 1994) (DSM-IV) adopted by the VA at 38 C.F.R. §§ 4.125 and 4.126. A December 30, 1996 addendum to that examination merely opined that the veteran's schizophrenia began in service. VA outpatient treatment records from July to September 1997 also document the veteran's treatment for schizophrenia. In July, the veteran reported symptoms of isolation, no friends, and fearfulness. He lived alone and was unemployed and cannot work. He was oriented to person, place and time and as the interview progressed, eye contact increased. The veteran reported that he was suspicious of people and had ideas of reference. At the end of the session, the veteran seemed alert and comprehended very well. He returned in August reporting that the medications had helped and that he was sleeping better and did not feel as suspicious as before. The Board further notes that the veteran's was hospitalized several times in late 1997 and 1998, primarily for treatment of his ongoing lower extremity disabilities. In November and December 1997, it was noted that the veteran was maintained on his usual psychiatric medication with no acute problems. In March 1998, the veteran was to be discharged but claimed he would kill himself if discharged at that time. The physician recommended that the veteran admit himself to the psychiatric ward but, thereafter, the veteran chose to be discharged. The veteran's Vocational Rehabilitation records show that the veteran was impaired in his ability to work. The veteran's counseling psychologist found, in November 1997, that "it is not presently feasible for [the veteran] to benefit from a program of services leading to gainful employment." In a counseling note, the psychologist indicated that, based upon the current significantly disabling effects of the veteran's service connected schizophrenia and phlebitis, along with his history of substance abuse, it was infeasible that he benefit from the program. The veteran was further found to possess an impairment to his employability to which his service- connected disabilities materially contribute. Finally, the veteran underwent a VA examination in November 1998 in order to address the veteran's current level of impairment. The examiner noted that the veteran established good eye contact during the interview and that his grooming was casual but appropriate to circumstances and situation. He demonstrated no unusual motor behavior but sat comfortably in his chair and answered all questions appropriately. Speech demonstrated regular rate and rhythm and appropriate affect was noted in his responses to various questions although he sometimes seemed "stumped" for an answer. He denied current difficulty with persecutory thoughts or hallucinations, although he admitted to having these in the past. No compulsions or obsessive thoughts were noted. No current suicidal or homicidal ideation was noted. No hypochondrial trends or phobias were noted. The veteran was alert to his three spheres and recent and remote memory were generally good although the veteran was somewhat slow. His insight and judgment were thought to be generally good and he was felt to be reliable. He was assigned a GAF score of 50, denoting serious symptoms. The examiner further found that the veteran should be able to obtain employment in jobs requiring light labor or perhaps sedentary jobs of low intensity. The examiner felt that the veteran should be able to be reliable and productive in such a situation, to be able to concentrate and follow instructions and interact with coworkers in a reasonable manner. After careful consideration, it is the decision of the Board that the veteran's schizophrenia does not exhibit symptomatology that warrants a 70 percent evaluation under either the old or new regulations. The Board notes that GAF scores of 41 and 50 have been reported in recent years, indicating serious symptoms, arguably consistent with severe impairment within the meaning of the former rating criteria. However, the examiner's classification of the disease is not determinative of the degree of disability, but the report and the analysis of the symptomatology and the full consideration of the whole history by the rating agency will be. Ratings are to be assigned which represent the impairment of social and industrial adaptability based on all of the evidence of record. 38 C.F.R. § 4.130 (1996). As will be explained below, the reports of two psychiatric examinations performed in recent years, along with the remainder of the medical evidence, does not reveal that the disability picture attributable to the veteran's schizophrenia is manifested by more than considerable social and industrial impairment, within the meaning of the former rating criteria, nor does the evidence show that his schizophrenia is productive of more than occupational and social impairment with reduced reliability and productivity, within the meaning of the current rating criteria. Upon the December 1996 VA psychiatric examination, the veteran reported that he was unemployed and had not been able to maintain employment since his psychotic break in service. However, he presented with adequate hygiene and grooming; he was alert, cooperative and fully oriented throughout the interview, and he denied experiencing auditory of visual hallucinations. Paranoid delusions were noted, although the only example given was that the veteran reported that he was "abused by the government." Speech was normal, aside from some episodes of minor stuttering and some unusually long pauses. There were some episodes of disorganized speech, but the examiner noted that the veteran's speech was generally logical, organized and productive. The veteran's affect was full and appropriate in content. While he gave a history of hallucinatory experiences, there was no indication of any psychotic behavior upon examination. The veteran complained of a depressed mood, but the examiner specifically noted that this was not evident during the interview. He did report some ongoing suicidal ideation but denied current intent; he gave a history of two suicide attempts but this occurred in the late 1980s. The examiner also noted that substance abuse remained a problem for the veteran as he continued to drink and did not show insight into his problem. He was able to recall four unrelated works after a brief delay and abstract thinking and judgment appeared within normal limits. There was no evidence of problems with memory or calculation. The VA examination in November 1998 showed that the veteran established good eye contact during the interview, had appropriate grooming to circumstances and situation, demonstrated no unusual motor behavior, and sat comfortably in his chair and answered all questions appropriately. Speech was again essentially normal, and he denied current difficulty with persecutory thoughts or hallucinations, although he admitted to having these in the past. No compulsions, obsessive thoughts, hypochondrial trends, phobias, current suicidal ideation, or homicidal ideation were noted. The veteran was alert to his three spheres and recent and remote memory were generally good, although it was noted that the veteran was somewhat slow. His insight and judgment were thought to be generally good and he was felt to be reliable. The examiner opined that the veteran should be able to obtain employment in jobs requiring light labor or perhaps sedentary jobs of low intensity. The examiner added that the veteran should be able to be reliable and productive in such a situation, and to be able to concentrate and follow instructions and interact with coworkers in a reasonable manner. The Board finds that the disability picture presented by the two examination reports and the other clinical evidence of record is not consistent with more than considerable social and industrial impairment. While he remains symptomatic, mental status examinations found very few abnormalities. While there are deficiencies in some areas, such as work, with a history of some suicidal ideation, hallucinations and delusions, it is not apparent that he has problems in most areas due to such symptoms as 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or inability to establish and maintain effective relationships. The Board acknowledges that the vocational rehabilitation records found the veteran occupationally impaired but this impairment was due to phlebitis and substance abuse, as well as schizophrenia. The most recent VA examiner focused only on the veteran's schizophrenia and found that the veteran was reliable and able to reasonably work in a sedentary or low intensity job. The veteran has had some suicidal ideation but no obsessional rituals, near continuous panic or depression. There has been no reported impaired impulse control and the examiners have routinely found the veteran's hygiene and personal grooming acceptable. Therefore, it is the decision of the Board that the veteran's schizophrenia is not productive of symptoms contemplated by the 70 percent criteria. The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the veteran that his service connected disorder alone has resulted in marked interference with employment or necessitated frequent periods of hospitalization. Under these circumstances, the Board finds that the veteran has not demonstrated marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a rating in excess of 50 percent for the veteran's schizophrenia is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals