Citation Nr: 1103458 Decision Date: 01/26/11 Archive Date: 02/01/11 DOCKET NO. 06-24 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an evaluation in excess of 50 percent for schizophrenia, paranoid type. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to January 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from a April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied an evaluation in excess of 50 percent for schizophrenia, paranoid type. This case was previously before the Board in July 2009, at which time it was remanded for additional evidentiary development as well as to address due process matters. As will be further explained herein, a review of the file reflects that there has been substantial compliance with the actions requested in that remand and the case has returned to the Board for appellate consideration. See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). In September 2006, the Veteran requested an earlier effective date for the grant of service connection for schizophrenia. This matter has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT Paranoid type schizophrenia is manifested by occupational and social impairment with reduced reliability and productivity and difficulty establishing and maintaining effective work and social relationships, but is not productive of occupational and social impairment with deficiencies in most areas or an inability to establish and maintain effective relationships. CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent for paranoid type schizophrenia have not been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.125-4.130, Diagnostic Code 9203 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify & to Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements) With respect to the increased rating claim for schizophrenia, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. Sept. 4, 2009). Pursuant to a Board remand of July 2009, the RO was requested to send a duty-to-inform notice to the Veteran pursuant to the Veterans Claims Assistance Act and Vazquez-Flores v. Peake. In was requested that the Veteran be advised of the criteria for evaluating rating mental disorders as provided under 38 C.F.R. § 4.130, Diagnostic Code 9203 and that he could submit evidence showing the worsening or increase in severity of his psychiatric disorder as well as the impact it has upon his employment and daily life. In argument presented in December 2010, the Veteran's representative requested that the case be remanded for an alleged Stegall violation involving the failure to provide the appropriate aforementioned notice, specifically the diagnostic criteria found under 38 C.F.R. § 4.130, diagnostic code 9203. Under Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand order. The Board acknowledges that the 2009 remand instructions were based on a decision from the Court that provided additional guidance on the content of the notice that is required under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) in claims involving increased compensation benefits. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). However, subsequently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) reversed the Court's holding in Vazquez, to the extent the Court imposed a requirement that VA notify a Veteran of diagnostic codes or potential "daily life" evidence. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1281 (Fed.Cir. 2009). Significantly, the Federal Circuit concluded that "the notice described in 38 U.S.C. § 5103(a) need not be Veteran specific." Similarly, "while a Veteran's 'daily life' evidence might in some cases lead to evidence of impairment in earning capacity, the statutory scheme does not require such evidence for proper claim adjudication." Thus, the Federal Circuit held, "insofar as the notice described by the Veterans Court in Vazquez-Flores requires the VA to notify a Veteran of alternative diagnostic codes or potential "daily life" evidence, we vacate the judgments. The Board notes that the file contains no fewer than 8 duty to assist letters issued between August 2004 and April 2010, relating to the Veteran's increased rating claim for schizophrenia. Those letters collectively, specifically those dated in March and April 2010, addressed the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, and provided notice regarding how disability ratings and effective dates are assigned. As explained above, while the letters did not include the criteria for evaluating rating mental disorders as seen in 38 C.F.R. § 4.130, Diagnostic Code 9203, that specific notice is no longer required in order to fully comply with the duty to assist. Moreover, the failure to provide such information is not prejudicial in this case and the essential fairness of the adjudication will not be affected because the Veteran was provided this information in a Statement of the Case issued in July 2006 and again in a Supplemental Statement of the Case issued in August 2010. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as an Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). Thus it is clear the Veteran had actual knowledge of, and has acted on, the information and evidence necessary to substantiate the pending claim. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (Court was convinced that appellant and representative had demonstrated actual knowledge of the information and evidence necessary to establish the claim). Accordingly, the Board concludes that during the administrative appeal process, the Veteran was provided the information necessary such that the purposes of the notification have been met. As explained herein, there has been substantial compliance with the 2009 Board remand instructions and therefore no remand is required. See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where Board's remand instructions were substantially complied with). Under the VCAA, VA also has a duty to assist the Veteran in the development of a claim. This includes assisting the Veteran in procuring service treatment records (STRs) and other relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, VA obtained the Veteran's STRs. There are essentially no recent VA or private treatment records available relating to the Veteran's psychiatric care, nor does he so maintain. Remote treatment sources identified by the Veteran have no bearing on his increased rating claim and such sources have not been contacted; the Veteran was advised of this fact by the RO in a letter dated in September 2004. VA psychiatric examinations have been conducted during the course of the appeal period in 2004 and 2010 and there have been no allegations made to the effect that either evaluation is inadequate in any manner. The file also contains statements and contentions made by the Veteran and his representative. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159, nor have either the Veteran or his representative suggested otherwise. Factual Background By rating action of April 2003, service connection was established for schizophrenia (paranoid type) for which a 50 percent evaluation was assigned, effective from April 2002. A VA examination for mental disorders was conducted in September 2004 and the claims folder was reviewed. The Veteran reported that he did not receive any mental health treatment or take any psychotropic medications. He generally denied having any major psychiatric problems. He denied having visual hallucinations and was vague about possibly having auditory hallucinations. The report indicated that the Veteran was divorced and lived alone, and that he had not worked since 1997, when he was employed for 2 to 3 months at a chemical company. He indicated that he could not work due to left leg problems. The report stated that the Veteran had social interaction with his mother and that he performed some side jobs such as mowing lawns and washing cars for some income. Objective examination revealed that the Veteran was adequately groomed and well oriented in all spheres. Speech rate and rhythm were normal. Mood was neutral and affect was restricted. Thought processes and associations were logical and tight and there was no evident gross impairment of memory. Vague auditory hallucinations were reported, as well as delusions of receiving special messages. Insight was limited and judgment was adequate. The Veteran denied having suicidal ideation and reported having some homicidal ideation, without intent. Paranoid type schizophrenia was diagnosed and a GAF (Global Assessment of Functioning) score of 48 was assigned. The examiner explained that it was difficult arriving at a diagnosis and assigning a GAF score for the Veteran, as he had no recent treatment records and provided relatively little information relating to his psychiatric problems, but appeared to have difficulty holding down a job. The examiner observed that it was hard to identify the reasons for the Veteran's unemployment, explained by the Veteran as due to physical problems. It was noted that the Veteran appeared to be socially isolated, but that no impairment in thought processing or communication was noted. The examiner indicated that there was no evidence of any other psychiatric condition (aside from schizophrenia) on examination. In February 2005, the Veteran provided a statement describing symptoms associated with his psychiatric disorder, including: nightmares, crying and paranoia. The file contains a January 2006 assessment conducted for purposes of eligibility for VA vocational rehabilitation services. The report indicated that the Veteran had last been employed with a chemical company as a painter and power washer in 1997 and 1998. It was noted that the reasons for his separation from this job were unclear. It was noted that the Veteran's only income came from his VA disability benefits and that he had applied for Social Security disability benefits, but was denied. With respect to his psychiatric condition, the Veteran reported that he used to be violent, but explained that this was no longer a problem. It was noted that he tended to stay to himself, although he had family members in close proximity. It was also noted that the Veteran had a non service-connected and significant low back disorder, which had been problematic for about 10 years. The evaluator found that the Veteran has employment impairments attributable to his social limitations, active psychiatric condition (described as a substantial factor), and limitations on lifting, bending and stooping. It was concluded that the Veteran met the criteria for serious employment handicap by virtue of his social isolation, significant rating for a psychiatric condition, and physical limitation with chronic pain. Pursuant to a Board remand of July 2009, a second VA examination was conducted in July 2010 and the claims folder was reviewed. The Veteran complained of anxiety and depression in conjunction with pursuing his claim. He complained of loss of appetite and weight, but indicated that he had been on a weight loss program. He denied having sleep impairment. The Veteran acknowledged feeling socially isolated, but explained that this was because he moved and did not know anyone in his neighborhood. He denied having homicidal ideation or suicidal intent, but indicated that he had occasional suicidal ideation. Vague reports of auditory and visual hallucinations were noted, but the Veteran generally denied significant delusional material. The examination report indicated that the Veteran lived alone and had been married once and divorced. It was noted that he had last been employed in 1997 as an industrial cleaner, but was not called back to work after he sprayed someone with a pressure washer. The report reflected that the Veteran helped his family members with their businesses. Mental status examination revealed that the Veteran was casually groomed, cooperative and well-oriented. Speech was normal; mood was euthymic and affect was appropriate. Though processes and associations were logical and tight with no evidence of confusion. Memory was grossly intact. The Veteran did not report having hallucinations and no delusional material was noted. Insight and judgment were described as adequate. As previously reported, he denied having homicidal ideation or suicidal intent, but indicated that he had occasional suicidal ideation. Chronic, paranoid type schizophrenia was diagnosed and a GAF score of 60 was assigned. The examiner commented that on examination, the Veteran reported virtually no symptoms consistent with the diagnosis of paranoid schizophrenia and noted that he did not report having true hallucinations or delusions. The examiner assessed the Veteran's overall condition as mild and opined that there was no evidence that the psychiatric disorder precluded employment or the activities of daily living. The examiner indicated that in light of the facts provided by the Veteran on examination (having recently moved), there was no impairment of social functioning shown. Analysis The Veteran contends that an evaluation in excess of 50 percent is warranted for his service-connected paranoid type schizophrenia. Disability ratings are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3. Where there is a question as to which of two evaluations shall 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2010). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). More recently, the Court held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the general rating formula for mental disorders, to include paranoid type schizophrenia, a 30 percent disability evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation envisions 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 contemplates 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 (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 worklike setting); and an inability to establish and maintain effective relationships. A 100 percent schedular evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss of names of close relatives, own occupation, or own name. According to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM- IV), which VA has adopted, under 38 C.F.R. §§ 4.125 and 4.130, a GAF score of 61 to 70 denotes mild symptoms or some difficulty in social and occupational functioning. A GAF score of 51 to 60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning. A GAF score of 41 to 50 indicates serious symptoms or a serious impairment in social, occupational, or school functioning. Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266, 267 (1996). The evidence, consisting primarily of VA examination reports and the Veteran's lay statements, establishes that consistently since the Veteran filed his claim for increase in July 2004, occupational and social impairment with reduced reliability and productivity as well as difficulty in establishing and maintaining effective work and social relationships has been shown, supporting the assignment of the currently assigned 50 percent evaluation. However, the Board notes that neither the clinical evidence nor the Veteran's lay statements reflect that symptoms enumerated in the rating criteria supporting the assignment of a 70 percent evaluation such 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 (such as unprovoked irritability with periods of violence); spatial disorientation; or neglect of personal appearance and hygiene, have been shown. During the appeal period, the Veteran twice mentioned having suicidal ideation upon VA examinations, with no associated intent. In addition, the Board notes that there has been some evidence presented that the Veteran has had difficulty in adapting to stressful circumstances (including work or a worklike setting), as evidenced by his unemployed status since 1997 when he was not called back to work. However, neither the 2004 or 2010 VA examinations reports implicated the Veteran's psychiatric disorder as the sole or primary source for such difficulty. Moreover, these isolated findings must be viewed in light of the overall symptoms associated with the Veteran's schizophrenia, which are not consistent with the enumerated criteria supporting the assignment of a 70 percent evaluation. A 70 percent evaluation contemplates occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. The 2004 and 2010 VA examinations reports generally reflected that judgment, thinking and mood were unimpaired. Industrially, the evidence reflects that the Veteran has not worked since 1997. The Veteran himself has identified left leg, low back and his psychiatric disorder as factors impacting his employability, as was also reflected in a VA vocational rehabilitation assessment report of 2006. The 2010 VA examination report contained an opinion to the effect that the Veteran's psychiatric disorder would not preclude employment. The 2010 examination report indicated that essentially no social impairment was shown and moreover indicated that the Veteran was interacting with his family both socially and industrially, helping family members with their businesses. The aforementioned facts also fail to support the conclusion that the Veteran's symptoms are manifested by an inability to establish and maintain effective relationships. The Board notes that VA examinations reports of 2004 and 2010 reference vague symptoms of hallucinations, a manifestations enumerated in the criteria for the assignment of a 100 percent evaluation. The Board notes that the Veteran's reports in this regard have been isolated and vague, with no indication of persistent problems of this nature. In 2010 a VA examiner clarified this matter, explaining that the Veteran did not report having true hallucinations and that there was no evidence of delusional material. Moreover, that manifestation, in and of itself, would not compel the assignment of an increased evaluation (to 70 or 100 percent), particularly in the absence of evidence of occupational and social impairment with deficiencies in most areas, as is the case here. In addition, GAF scores of 48 (2004) and 60 (2010) have been assigned during the appeal period, in effect reflecting improvement of the symptomatology associated with the Veteran's service-connected psychiatric disorder. The currently assigned GAF score of 60 is reflective of no greater than moderate symptoms or moderate difficulty in social, occupational, or school functioning, as is essentially also contemplated by the currently assigned 50 percent evaluation. In light of the aforementioned discussion, there is no indication that increased or staged ratings are warranted for any portion of the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Consequently, the Veteran's claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration The Board also recognizes that the Veteran and the record refer to the impact of the service-connected disability on the Veteran's work functioning. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is 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 law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, consideration of the next analytical step is not undertaken and referral for extraschedular consideration is not required. But if the RO or the Board finds that the schedular evaluation does not contemplate a veteran's level of disability and symptomatology, then either the RO or the Board must determine whether a veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran and in the clinical records fit squarely within the criteria found in the relevant diagnostic code (9203) used for evaluating the disability at issue, schizophrenia. In short, for the reasons already set forth above in denying the appeal for a rating in excess of 50 percent for schizophrenia, the rating criteria contemplate not only his symptoms but the severity of his schizophrenia, as is reflected by the assigned 50 percent disability. Therefore, as the assigned 50 percent rating is adequate, analysis of the next step of whether an exceptional disability picture is presented is not for consideration and referral for extraschedular consideration is not warranted. The Court of Appeals for Veterans Claims (CAVC) has recently held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). The Board notes that the Veteran raised a TDIU claim in July 2004 which was denied in an April 2005 decision and was not appealed. Hence, this matter has already been considered as an independent claim which was not pursued on appeal. Moreover, the Veteran himself has implicated non-service connected conditions affecting the low back and left leg as factors causing his unemployability and the record reflects that Social Security disability benefits were denied. Thus, at this point it has already been determined that entitlement to TDIU is not warranted and the matter need not be further considered herein. ORDER An evaluation in excess of the assigned 50 percent rating for paranoid type schizophrenia is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs