Citation NR: 9614455 Decision Date: 05/24/96 Archive Date: 06/04/96 DOCKET NO. 94-44 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased evaluation for undifferentiated schizophrenia, currently evaluated as 70 percent disabling. 2. Entitlement to a total rating based on individual unemployability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service ATTORNEY FOR THE BOARD R. Acosta, Associate Counsel INTRODUCTION The veteran served on active duty from July 1966 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 1994 rating decision of the Department of Veterans Affairs (VA) Atlanta, Georgia, Regional Office (RO), which denied an increased evaluation for schizophrenia and a total rating based on individual unemployability. Since both issues on appeal are interrelated, and in view of the present decision granting a schedular 100 percent evaluation, they will be addressed jointly. Preliminary review of the record does not reveal that the RO expressly considered referral of the veteran’s appeal of the issue of an increased evaluation for undifferentiated schizophrenia to the Chief Benefits Director or the Director, Compensation and Pension Service, for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1995). The United States Court of Veterans Appeals (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1995), in the first instance. The Board is, however, not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the applicable law and regulations. Floyd v. Brown, No. 92-970 (U.S. Vet.App. Apr. 17, 1996). In light of this mandate, the question of the applicability of 38 C.F.R. § 3.321(b)(1) (1995) to the facts of this case is referred back to the RO for such further action as is deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL The veteran disagrees with the April 1994 rating decision which denied both an increased (100 percent) evaluation for undifferentiated schizophrenia, and a total rating based on unemployability. He maintains that the evidence supports a 100 percent disability evaluation. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), 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, since the evidence supports the veteran’s contention that the service-connected undifferentiated schizophrenia precludes gainful employment, and since schizophrenia is the only compensable service- connected mental disorder, 38 C.F.R. § 4.16(c) (1995) is triggered so that a 100 percent schedular rating for undifferentiated schizophrenia is warranted. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable distribution of the veteran’s appeal has been obtained by the agency of original jurisdiction. 2. The veteran is service-connected for undifferentiated schizophrenia since November 1969. It is his only service- connected disability. 3. The service-connected disability is currently evaluated as 70 percent disabling. 4. The service-connected disability is currently manifested by occasional auditory and visual hallucinations with ideas of reference and delusions of persecution. 5. The record contains evidence of numerous hospitalizations covering a 22-year span, for medical treatment related to the service-connected disability. 6. Undifferentiated schizophrenia precludes the veteran from securing or following a substantially gainful occupation consistent with his education and employment experience. CONCLUSION OF LAW The criteria for a 100 percent schedular evaluation for undifferentiated schizophrenia are met. 38 U.S.C.A. § 1155, 5107(a) (West 1991); 38 C.F.R. § 3.321(b)(1), 3.340, 3.341, 4.1, 4.2, 4.7, 4.10, 4.15, 4.16(c), 4.132, Diagnostic Code 9204 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that, in accordance with 38 U.S.C.A. § 5107(a) (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the veteran has presented a well-grounded claim. The facts relevant to this appeal have been properly developed and VA’s obligation to assist the veteran in the development of his claim has been satisfied. Id. The veteran has requested an increased (100 percent) evaluation for the service-connected undifferentiated schizophrenia, currently evaluated as 70 percent disabling, and a total rating based on individual unemployability. After a review of the record, and for the reasons discussed below, to include application of the benefit of the doubt provisions, the Board finds that the veteran’s claim is supported by the evidence and that, accordingly, the benefit sought on appeal must be granted. Disability evaluations are based upon the average impairment of earning capacity as determined by a Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1995). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including the service medical records. Each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (1995). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran’s ability to engage in ordinary activities, including employment. A person may be too disabled to engage in employment, although he or she is up and about and fairly comfortable at home or upon limited activity. 38 C.F.R. § 4.10 (1995). It is the function of the Board to weigh and analyze all the evidence of record, make determinations as to the credibility of the evidence, and decide the veteran’s claim upon consideration of all such evidence and the applicable provisions of law and regulation. 38 U.S.C.A. § 7104(a) (West 1991); Sanden v. Derwinski, 2 Vet.App. 97, 100 (1992). Where the preponderance of the evidence is in favor of the veteran’s claim or the evidence for and against the claim is approximately in balance, the benefit sought is to be granted. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). In a rating decision dated in April 1970, the RO granted service connection for undifferentiated schizophrenia, under Diagnostic Code 9204 of the Schedule. A 100 percent evaluation was assigned, pursuant to the provisions of 38 C.F.R. § 4.29 (1995) (hereinafter, “Paragraph 29”), effective from November 1969. In a rating decision dated in June 1971, the service- connected disability was re-evaluated as 70 percent disabling, effective from September 1971. This is the evaluation currently in effect. As will be discussed below, however, the record shows that the veteran has had numerous hospitalizations for treatment related to the service- connected disability throughout the years. Accordingly, several total (100 percent) Paragraph 29 evaluations have been granted since November 1969. The service-connected disability was reduced to 50 percent disabling on three occasions between April 1985 and March 1988. The rest of the time it has been evaluated either as 70 or 100 percent disabling. A 70 percent disability evaluation for schizophrenia, undifferentiated type, is warranted under Diagnostic Code 9204 of the Schedule for active psychotic manifestations with lesser symptomatology such as to produce severe impairment of social and industrial adaptability. A 100 percent evaluation is warranted for active psychotic manifestations of such extent, severity, depth, persistence or bizarreness so as to produce total social and industrial inadaptability. 38 C.F.R. § 4.132, Diagnostic Code 9204 (1995). In addition, 38 C.F.R. § 4.16(c) (1995) provides for a 100 percent schedular evaluation under the appropriate diagnostic code when the only compensable service-connected disability is a mental disorder assigned a 70 percent evaluation, and such mental disorder precludes a veteran from securing or following a substantially gainful occupation. As shown below, the record shows that the veteran’s employment history is one full of gaps and very short periods of assorted and varied menial jobs between his numerous hospitalizations. Though he completed high school and has at least two or three years of undergraduate music studies, his claims folder shows that he has been unemployed for the most part since his discharge from military service in 1969. A private current assets and income report, dated in August 1974, indicates that the veteran was currently unemployed and that there were no current prospects of any employment. The veteran indicated in a statement in support of claim (VA Form 21-4138), dated in April 1976, that he had not been able to work and/or attend school since 1973. He further indicated, in an income-net worth and employment statement (VA Form 21-527), dated in July 1976, that he had not worked since September 1974 because of a nervous condition. The report of a VA special neuro-psychiatric examination, dated in October 1977, shows that the veteran reportedly indicated that he had not worked since being discharged from service and that he provided a history of frequent hospitalizations and auditory hallucinations. The report of a VA social survey, dated in November 1979, shows that the veteran reportedly indicated that he had not been able to work since his discharge from the Marine Corps in 1969, due to difficulty with his nerves. The examiner noted that the veteran appeared to be continuing to experience difficulty in making an adequate adjustment to community living, and that the information provided by the veteran seemed to be reliable. In a rating decision dated in December 1979, the RO granted a total (100 percent) evaluation based on individual unemployability, effective from October 1979. 38 C.F.R. § 4.16(c) (1995). This evaluation was, however, terminated by the RO as of March 1981, in a rating decision dated in January 1981, after concluding that the evidence did not show the service-connected disability to be of such severity so as to render the veteran unemployable. Accordingly, the previous 70 percent evaluation was restored. The report of a VA neuropsychiatric examination, dated in November 1980, shows that the veteran indicated that he had not worked since service. In an employment questionnaire (VA Form 21-4140), dated in December 1980, the veteran indicated that he had not been employed or self-employed during the past 12 months. A VA hospital summary (VA Form 10-1000), dated in June 1981, shows that the veteran was hospitalized for more than 15 days for treatment of a generalized anxiety disorder and paranoid schizophrenia. On discharge, the veteran was considered competent, but unemployable. A VA Form 10-1000, dated in December 1981, shows that the veteran was hospitalized for more than 12 days, with a diagnosis of paranoid schizophrenia. The report deemed the veteran competent, but not employable. Paragraph 29 benefits were granted in a decision dated in November 1981. A VA Form 10-1000, dated in November 1982, shows that the veteran was hospitalized for about a month, with a diagnosis of chronic, undifferentiated schizophrenia. Again, the report deemed the veteran competent, but not employable. Paragraph 29 benefits were granted in a decision dated in November 1982. The report of a VA special neuropsychiatric examination, dated in October 1984, shows that the veteran indicated that he had been working for about a year in a company that manufactured pipes. The examiner noted that the veteran was apparently able to make a reasonable social and occupational adjustment, as long as he remained on antipsychotic medication. Schizophrenia, in fair remission with medication, was diagnosed. The report of a VA psychiatric consultation, dated in October 1986, shows that the veteran indicated that he worked most of the time, but had stopped his last job just before his last hospitalization, as it was causing him headaches and insomnia. He had held, however, another job during the last year, “packing desks.” The examiner noted that the veteran had had a chronic schizophrenic illness with remissions and exacerbations for years and was presently hospitalized with his latest exacerbation in a state hospital. Chronic, undifferentiated schizophrenia was diagnosed. A social assessment update from Southwestern State Hospital (hereinafter, “SSH”), dated in October 1986, shows that the veteran stated that he had been hospitalized for almost a month and that after being discharged from the hospital, he had returned to his job at Lockwood Industries, where he had worked for over a year, but that after a week, he “couldn’t take it” and quit. In a rating decision dated in February 1987, Paragraph 29 benefits were granted by the RO for such hospitalization. An SSH hospital summary, dated in March 1987, shows that the veteran was hospitalized for more than two months after being brought to the hospital in an apparent acute psychotic state, jumping, shouting, kicking, and demonstrating loud and disruptive behavior. Paragraph 29 benefits were granted by the RO, in a decision dated in June 1987. The report of a VA special neuropsychiatric examination, dated in March 1988, shows that the veteran indicated that his last job had been about a year ago, in a company that made office furniture. The veteran reportedly had no plans for the future for employment. Schizophrenia was diagnosed. A VA Form 10-1000, dated in January 1989, shows that the veteran was hospitalized for 20 days with a diagnosis of chronic schizophrenia, differential type. The veteran reportedly indicated that he had worked for a while at a Holiday Inn. On discharge, the veteran was considered competent, but the prognosis was guarded. A VA Form 10-1000, dated in May 1989, shows that the veteran was hospitalized for almost a month, with a diagnosis of paranoid schizophrenia. On discharge, he was considered competent, but “unemployable indefinitely.” Paragraph 29 benefits were granted, in a rating decision dated in July 1989. An SSH hospital summary, dated in December 1989, shows that the veteran was hospitalized for two months for treatment of a chronic, undifferentiated schizophrenia. The veteran was noted to appear motivated to work. The prognosis was guarded. In a rating decision dated in January 1990, the RO granted Paragraph 29 benefits for such period of hospitalization. An SSH hospital summary, dated in August 1990, shows that the veteran was admitted for the eighth time. This time, the hospitalization lasted for about two-and-a-half months. On discharge, he reportedly appeared to be in fair contact with his environment and appeared able to accept supervision at home. Paragraph 29 benefits were granted by the RO, in a rating decision dated in October 1990. A VA Form 10-1000, dated in October 1990, shows that the veteran was hospitalized for about three weeks, with complaints of bad nerves and sleep difficulty. The discharge diagnosis was paranoid schizophrenia. Paragraph 29 benefits were granted by the RO, in a rating decision dated in December 1990. A VA Form 10-1000, dated in February 1991, shows that the veteran was hospitalized for about a month for treatment of a paranoid schizophrenia, with exacerbation. Paragraph 29 benefits were granted by the RO, in a rating decision dated in April 1991. An SSH discharge summary, dated in December 1991, shows that the veteran was admitted after his family subscribed an affidavit for hearing voices, poor personal hygiene, noncompliance with medications, drinking and driving, walking at night, and mumbling to himself. He was hospitalized for about two weeks. On discharge, his condition had improved, and it was noted that he mumbled to himself less frequently. The report of an SSH psychiatric evaluation, dated in January 1992, shows that the veteran was again being admitted on an affidavit for refusing to take medications, walking and talking to himself, not wanting to go to sleep, hearing voices and hallucinating. He reportedly indicated that the last time he had worked had been four to five months before at a “Sunnyland” factory, but that he was currently unemployed. A social assessment update from the same institution, dated seven days later, shows that this was the veteran’s 10th involuntary admission and that his relatives reportedly indicated that sometimes the veteran did some work, and that the last work had been at Sunnyland “a few years ago.” According to an SSH hospital summary, dated in March 1992, the veteran’s January 1992 hospitalization lasted for about a month. His condition on discharge had improved, but the prognosis was “guarded.” Paragraph 29 benefits were granted by the RO, in a rating decision dated in March 1992. A VA medical certificate (VA Form 10-10M), dated in September 1992, shows a diagnostic impression of paranoid schizophrenia. The record shows that the RO received from the veteran, in September 1993, an application for increased compensation based on unemployability (VA Form 21-8940), wherein he indicated the following: 1. He had been under a doctor’s care and/or hospitalized during the past 12 months. 2. The medical treatment for the service-connected psychosis was on a monthly basis. 3. His disability had affected full time employment in September 1992. 4. He had last worked full time and had became too disabled to work in September 1992. 5. He had worked as a “[b]lend room operator” in 1983-84. 6. He had held full-time jobs as a laborer during 1986 and 1987, and from March to September 1992. 7. He had left his last job because of the service-connected disability. 8. He had not tried to obtain employment since becoming too disabled to work. 9. He had three years of college education. 10. His medical condition had reached the point where he couldn’t remember much from one minute to the next. The veteran indicated in his substantive appeal (VA Form 9), dated in October 1994, that he had tried to find substantial employment since 1981 without success, and that the best that he had been able to obtain, with the aid of friends, had been limited employment as a laborer. He also indicated that he had only done odd jobs since 1986, that the longest period of time that he had been able to work at any given time had been for six months with Sunnyland Packing Co., in 1991, pushing boxes on a dolly, and that the end result of this job had put him in Southwestern State Mental Hospital. A VA mental disorders examination was conducted in December 1994. Its report, of same date, shows that the veteran indicated that he had graduated from high school and had attended two years of college at Albany State College in Georgia and at Edward Walters College at Jacksonville, that he had been last employed two years ago, that he had worked in a meat plant company, and that he was currently unable to work, claiming that his back hurt and stopped him from working. The veteran reportedly added that he had a prior admission to a VA and a state hospital, with a diagnosis of schizophrenia, that he was currently being treated by a psychiatrist and that he received a “shot” of Haldol Decanoate once a month. The December 1994 VA report also shows that the veteran reportedly complained of occasional auditory hallucinations that affected his concentration and gave him different directions, and of visual hallucinations, which had subsided considerably recently. He also felt somewhat paranoid and often felt that people were talking about him and laughing at him. On mental examination, it was noted that the veteran did have occasional auditory and visual hallucinations with ideas of reference and delusions of persecution. The impression was paranoid schizophrenia. An examiner’s opinion regarding the veteran’s employability, or lack of it, is not of record, though. The most recent medical evidence of record does not show active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. The evidence of record, however, does seem to show that, on a practical level, the service-connected mental disorder is so debilitating as to preclude the veteran from securing or following a substantially gainful occupation. As a result of his frequent hospitalizations, covering a span of more than 22 years since his discharge from active duty, for treatment for schizophrenia-related symptomatology, the veteran has been unable to secure or follow a substantially gainful occupation. When benefit of the doubt provisions are applied on behalf of the veteran, the preponderance of the evidence is deemed to show that he is precluded from gainful employment. 38 U.S.C.A. § 5107(b) (West 1991). In addition, since the undifferentiated schizophrenia is the veteran’s only compensable service-connected disability, 38 C.F.R. § 4.16(c) (1995) comes into play. Accordingly, a total (100 percent) schedular evaluation under Diagnostic Code 9204 is warranted. ORDER A schedular evaluation of 100 percent for undifferentiated schizophrenia is granted, subject to regulations governing the disbursement of monetary benefits. JACK W. BLASINGAME Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1995), 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, 102 Stat. 4105, 4122 (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. - 2 -