Citation Nr: 0813385 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 03-35 942 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUE Entitlement to an increased disability rating for paranoid schizophrenia, to include whether a reduction from 100 percent disabling to 50 percent disabling was proper. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The veteran served on active duty from April 1990 to March 1992. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an August 2003 decision of the RO that decreased the evaluation for the veteran's service-connected paranoid schizophrenia from 100 percent (effective in August 2002) to 50 percent under Diagnostic Code 9203, effective November 2003, a period less than 5 years. The veteran timely appealed. In November 2003, the veteran testified during a hearing before RO personnel. In March 2005, the veteran testified during a hearing before the undersigned at the RO. In March 2006, the Board remanded the matter for additional development. FINDINGS OF FACT 1. When compared with medical findings of the August 2002 hospital records that formed the basis for the 100 percent disability rating, the April 2003 reassessment reflects overall improvement in the veteran's service-connected paranoid schizophrenia. 2. Since April 2003, the disorder is not manifested by suicidal ideation, obsessive rituals, near continuous panic or depression, impaired impulse control, spatial disorientation, neglect of personal hygiene, or inability to establish and maintain effective relationships. 3. The veteran's paranoid schizophrenia has been manifested by difficulty in establishing and maintaining effective work and social relationships, and irrelevant speech and social isolation at times; these symptoms reflect no more than occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for restoration of the 100 percent rating for the veteran's paranoid schizophrenia have not been met. 38 U.S.C.A. §§ 1155, 5112(b)(6) (West 2002); 38 C.F.R. §§ 3.102, 3.105(e), 3.159, 3.344(c), 4.1, 4.7, 4.130, Diagnostic Code 9203 (2007). 2. The criteria for a disability rating in excess of 50 percent for the veteran's paranoid schizophrenia have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9203 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant's possession that pertains to the claim(s). In Vazquez-Flores v. Peake, 22 Vet App 37 (2008), the Court established significant new requirements with respect to the content of the duty-to-assist notice which must be provided to a veteran who is seeking a higher rating. With respect to increased rating claims, the Court found that, at a minimum, a 38 U.S.C. § 5103(a) notice requires that the Secretary notify the veteran that, to substantiate such a claim: (1) the veteran must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the veteran's employment and daily life; (2) if the Diagnostic Code (DC) under which the veteran is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the veteran demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the veteran's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the veteran; (3) the veteran must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant DCs, which typically provide for a range in severity of a particular disability from 0% to as much as 100% (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; and (4) the notice must also provide examples of the types of medical and lay evidence that the veteran may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Through March 2003, May 2005, and March 2007 letters, the RO notified the veteran of evidence of increased disability. These documents served to provide notice of the information and evidence needed to substantiate the claim. VA's letters notified the veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claim, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. The letters asked him if he had any additional evidence to submit, and thereby put him on notice to submit information or evidence in his possession. In the May 2006 letter, the RO also notified the veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board acknowledges that the letters sent to the veteran have not met the requirements of VCAA notice regarding an increased rating claim. The letters are deficient as to both content and timing, and thus create a presumption of prejudice. In this case, the presumption has been overcome. The veteran was provided with correspondence regarding what was needed to support his claim in May 2006. Specifically, he was told to submit evidence of on-going treatment, statements from employers as to job performance, and individual statements from those with knowledge and/or personal observations who could describe the manner in which his disability had worsened. The November 2003 SOC also listed the applicable diagnostic code and disability ratings for paranoid schizophrenia, which is based on a general rating formula for mental disorders and which the veteran reasonably could be expected to understand to support his claim. In correspondence (his substantive appeal) submitted in December 2003, the veteran described the effects that paranoid schizophrenia was having on his interactions with people. The veteran previously reported that his disability had made him very wary of other people and had caused him difficulty in maintaining employment. The veteran has also been represented by a veterans' service organization throughout this appeal. Accordingly, any notice error is not prejudicial because the veteran has demonstrated actual knowledge of the information that is necessary to support the claim. Hence, the notice deficiencies do not affect the essential fairness of the adjudication. There is no indication that any additional action is needed to comply with the duty to assist the veteran. The RO has obtained copies of the veteran's service medical records and outpatient treatment records, and has arranged for the veteran to undergo a VA examination in connection with the claim on appeal, a report of which is of record. The veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2007). The Board has considered the full history of the disability. Service connection for paranoid schizophrenia was originally granted in a rating decision of June 1992. At that time, the RO assigned a 50 percent disability rating. That rating was reduced to 30 percent effective June 1, 1995. However, the 50 percent rating was later restored by a hearing officer at the RO. The veteran filed a claim for increased compensation in August 2002, and that claim eventually led to the current appeal. In a rating decision of March 2003, the RO increased the rating to 100 percent effective from August 21, 2002, based on VA treatment records showing hospitalization on that date. However, an August 2003 decision of the RO decreased the evaluation for the veteran's service-connected paranoid schizophrenia from 100 percent (effective in August 2002) to 50 percent under Diagnostic Code 9203, effective November 2003, a period less than 5 years. During the period of time relevant to the current appeal, the veteran's paranoid schizophrenia has been evaluated pursuant to a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. A 50 percent rating is assigned when there is 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. A. Reduction in a Service-Connected Disability Rating Where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). By an April 2003 rating decision and April 2003 letter to the veteran, the RO satisfied the procedural requirements. In this case, the veteran's request for a hearing was received by VA more than 30 days following the date of notice of the proposed reduction, and no additional evidence was received within the 60-day period. After completing the predetermination procedures specified in 38 C.F.R. § 3.105(e), the RO sent the veteran written notice of the final action. This notice set forth the reasons for the action and the evidence upon which the action was based. 38 C.F.R. § 3.105(e). Where a reduction of benefits is found warranted following consideration of any additional evidence submitted and the reduction was proposed under the provisions of 38 C.F.R. § 3.105(e), the effective date of the final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105(e). Here, notice was sent in an August 2003 letter and the effective date of the reduction was November 1, 2003. The RO satisfied the requirements by allowing a 60-day period to expire before assigning the reduction effective date. The question is thus whether the reduction was proper based on the evidence of record. Where a disability evaluation has continued at the same level for less than five years, that analysis is conducted under 38 C.F.R. § 3.344(c) which provides that a reexamination that shows improvement in a disability warrants a reduction in the disability evaluation. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated; post-reduction medical evidence may be considered only in the context of considering whether actual improvement was demonstrated. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). The Board notes that the 100 percent disability rating for paranoid schizophrenia was assigned based on the veteran's hospitalization for nearly two weeks in August 2002, secondary to worsened psychiatric symptoms. During his hospital admission, examiners documented disorganized thoughts and paranoid delusions. A global assessment of functioning (GAF) score of 30 was assigned at admission, and a GAF score of 50 was assigned at discharge. A reassessment of the veteran's disability occurred in April 2003. Records reflects that the veteran had been laid off from work in February 2003. The examiner noted that the veteran was appropriately dressed, and wore dark sunglasses during the interview. The veteran's statements were not relevant, and the examiner denoted loose associations. However, the veteran denied hearing voices or having other hallucinations; he also denied suicidal or homicidal thinking. The veteran remembered three words after five minutes, and named the last seven presidents. He performed serial seven subtractions with few mistakes, but to completion. The examiner found the veteran's insight was probably very poor, and his judgment questionable. A GAF score of 38 was assigned. In this case, when the August 2002 VA hospital records are compared with the April 2003 VA reassessment, some improvement in the veteran's paranoid schizophrenia is demonstrated. The Board also notes that while the reassessment reflects that the veteran recently was laid off from work, prior to February 2003 the veteran indeed had been working. Moreover, a slight improvement is reflected in the assigned GAF scores from 30 to 38. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), the GAF score of 30 contemplates behavior influenced by delusions or hallucinations; serious impairment in communication or judgment; or an inability to function in almost all areas (e.g., stays in bed all day, no job, home, or friends). A GAF score of 38 contemplates some impairment in reality testing or communication, or major impairment in several areas such as work, school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). While the GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness" (DSM-IV), the assigned GAF score in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, it must be considered in light of the actual symptoms of the veteran's disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126(a). The Board notes that the April 2003 examination did not reflect the presence of manifestations contemplated for a 70 percent rating as the disorder is not noted to be manifested by suicidal ideation, obsessive rituals, near continuous panic or depression, impaired impulse control, spatial disorientation, neglect of personal hygiene, or inability to establish and maintain effective relationships. Similarly, the examination did not note manifestations contemplated for a 100 percent rating such as grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. In addition, total occupational and social impairment were not shown on the examination in April 2003. In fact, following the reduction of benefits in November 2003, the veteran testified that he again was working full time as a security guard. His testimony demonstrates actual improvement over time. Given the findings of a slight improvement in the assigned GAF, the absence of symptoms contemplated for 70 or 100 percent ratings, and the evidence of employability both prior to and post-reduction of benefits, the Board finds that the evidence showed overall improvement. Hence, the reduction in the disability evaluation for paranoid schizophrenia was proper. 38 C.F.R. § 3.344(c). B. Evaluation of Paranoid Schizophrenia The RO has evaluated the service-connected paranoid schizophrenia under 38 C.F.R. § 4.130, Diagnostic Code 9203, as 50 percent disabling. As noted above, the veteran testified in November 2003 that he was working full time as a security guard. He also testified that he made $7.50 an hour, and that he had been doing security on and off for eight years. VA outpatient treatment records, dated in June 2004, reflect a GAF score of 40. Records reflect that the veteran complained he was bored at his job, and requested hospitalization in August 2004. At that time the veteran did not meet criteria for inpatient admission, and he declined participation in the partial hospital and day activity programs. VA progress notes reflect that the veteran's paranoid schizophrenia was in fair remission in September 2005 and in January 2007. During a March 2007 VA examination, the veteran reported improvement in his symptoms with medications and no adverse side effects. The examiner noted a longstanding history of paranoid delusional beliefs and paranoid ideas of reference. The veteran tended to isolate himself and limited his interaction with the public. He denied having any auditory or visual hallucinations. He reported having no friends and that he was a loner. The examiner assigned a GAF score of 50, and noted that the veteran continued to show symptoms consistent with paranoid schizophrenia. The examiner opined that the veteran's symptoms were moderately severe at the time, and that the veteran had been able to hold gainful, full-time employment for the past 15 months as a security guard-in spite of ongoing symptoms. His social functioning, however, was extremely limited. In this case, the veteran's paranoid schizophrenia has been manifested, primarily, by difficulty in establishing and maintaining effective work and social relationships. While these symptoms seemed to occur frequently, they are, nonetheless, reflective of overall moderately severe social impairment, although generally functioning satisfactorily with routine behavior and self-care. Such level of impairment warrants a 50 percent disability rating. While examiners have noted irrelevant speech and loose associations, and social isolation at times, these factors, alone, do not provide a sufficient basis for assignment of a 70 percent disability rating. Significantly, the veteran has not been found to have suicidal ideation, obsessional rituals, near-continuous panic or depression, impaired impulse control, or neglect of personal appearance and hygiene-all symptoms which would warrant a 70 percent disability rating. The evidence does not reflect that the veteran's paranoid schizophrenia has caused total impairment at any time in social and occupational functioning. Symptoms such as gross impairment in thought processes or communication, or persistent delusions or hallucinations are not demonstrated. Thus, the weight of the evidence is against the grant of an increased disability rating for the veteran's claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2007). ORDER The reduction from 100 percent disabling to 50 percent disabling was proper, and a disability evaluation in excess of 50 percent for paranoid schizophrenia is denied. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs