Citation Nr: 1313251 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 09-14 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a rating in excess of 50 percent for schizophrenic reaction, paranoid type. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In September 2012, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. FINDING OF FACT Throughout the appeal period, the Veteran's schizophrenic reaction, paranoid type, is shown to have been manifested by symptoms productive of occupational and social impairment with deficiencies in most areas; at no time is it shown to have been manifested by symptoms productive of total occupational and social impairment. CONCLUSION OF LAW Throughout the appeal period, a 70 percent (but no higher) schedular rating is warranted for the Veteran's schizophrenic reaction, paranoid type. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.126, 4.130, Diagnostic Code (Code) 9203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase, 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. 2009). A July 2007 letter, prior to the August 2007 rating decision on appeal, explained the evidence necessary to substantiate the Veteran's claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also informed the Veteran of rating and effective date criteria. A March 2009 letter notified him of the schedular criteria for rating schizophrenia, paranoid type. He has received the general-type notice described in Vazquez-Flores and has had ample opportunity to respond/supplement the record. It is not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO arranged for a VA mental disorders examination in August 2007, which will be discussed in greater detail below, though the Board finds this examination to be adequate for rating purposes, as the examiner considered the reported history of the Veteran and conducted a thorough examination, noting all findings necessary for consideration of the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part IV. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In a claim for increase the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating the level of disability of an increased rating claim begins one year before the claim was filed. As the instant claim for increase was received in July 2007, the period for consideration is from July 2006 until the present. Schizophrenic reaction, paranoid type, is rated under the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130, Code 9203. The psychiatric symptoms listed in the rating criteria below are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the general rating formula for mental disorders a 50 percent rating is warranted 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is 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); inability to establish and maintain effective relationships. A 100 percent rating 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 for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Code 9203. The Veteran has been assigned Global Assessment of Functioning (GAF) scores for his schizophrenic reaction, paranoid type. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). 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 that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. Lesser scores reflect increasingly severe levels of mental impairment. See 38 C.F.R. § 4.130 [incorporating by reference VA's adoption of the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), for rating purposes]. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The evidence of record reveals psychiatric diagnoses other than schizophrenic reaction, paranoid type (PTSD). Where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). In reviewing the claim, the Board notes that the evidence covering the period under review consists of VA clinical reports, an August 2007 VA examination report, and the Veteran's allegations of a worsening of the disorder. In his July 2007 claim for increase, the Veteran reported that his condition had increased in severity. He reported feeling increased paranoia, felt his co-workers were out to get him, had trouble sleeping, experienced nightmares and episodes of anger which may or may not be provoked. VA mental health treatment records, dated from August 2006 to July 2008, show that the Veteran reported always having A/V (audiovisual) hallucinations which he had learned to overlook and live his life. He reported the death of his mother in November 2005 and of his father in June 2006 and stated that he had been having insomnia (problems with going and staying asleep). He also complained of nightsweats, nightmares, flashbacks and intrusive thoughts. The Veteran reported that he stayed busy all the time (he was a painter for the Houston County Board of Education and worked for himself as a painter on the weekends). These records consistently show that he presented for examiantion appropriately dressed and groomed, appeared alert and oriented, had clear and coherent speech, an open affect, was willing to talk and responded well to questions. He maintained good eye contact and thought processes were relevant/coherent. The Veteran's judgment/insight, memory/intellect, and abstract/perceptual thoughts were intact. He had no suicidal or paranoid ideations or hallucinations and did not seem hypervigilent. The GAF score on each examination was 55. On August 2007 VA examination, the Veteran's computerized medical records were reviewed (his claims file had not been provided and was not available for review). He reported that he lived with his wife of 40 years and their relationship was strained but she still loves him and is the only woman who would put up with him. They go to church and out to eat together. He reported feeling remorse and apologizing to his wife everyday for having beaten her 30 years earlier. The Veteran also has 3 adult children and 7 grandchildren. He has weekly visits with his children and sees his grandchildren daily. He reported having one friend who sometimes works with him on his part-time job (painting houses on weekends). He reported no other social interaction or hobbies. It was noted that the Veteran tries to work all the time as a coping mechanism to avoid getting into interpersonal conflict and as a distraction from his paranoid ideation. The examiner noted that the Veteran's current psychosocial functioning was poor, he had limited contact with his family, engaged in limited social activities, and his leisure pursuits were severely restricted. The examiner also noted that the Veteran's mental disorder was treated with medication and individual psychotherapy, the effectiveness of which was described as "poor." On psychiatric examination, the Veteran's clothes appeared disheveled (he was able to maintain minimum personal hygiene), he had impoverished speech (soft or whispered and slow), guarded attitude, blunted affect, anxious mood, and illogical and evasive thought process. His psychomotor activity was lethargic and fatigued and he was unable to do serial 7's. The Veteran's orientation was intact and he was able to spell "word" forward and backward. The examiner noted that the Veteran has difficulty trusting others, he feels others are "out to get" him or harm him. The Veteran stated that he is alright as long as he can work by himself (he cannot work with others as he is suspicious of them). The examiner found that the Veteran had delusions of thought insertion, does not understand the outcome of his behavior, has below average intelligence, and partially understands that he has a problem. It was noted that the Veteran has trouble falling and staying asleep (gets about 3 hours of sleep per night with medicaiton). His interpretation of proverbs was illogical, abstract thinking ability was impaired, he had mild to moderate panic attacks, weekly angry outbursts, and no current homicidal or suicidal thoughts. The Veteran's remote and recent memory was normal; however, his immediate memory was severly impaired. The Veteran had been employed fulltime as a journeyman painter for the Houston County Board of Education for 20 years and self-employed on the weekends. The Veteran learned to adapt to his job with the Houston County Board of Education by avoiding co-workers, leaving quickly at the end of the day so he will not have to interact with others, and working with only one other person. He had also been employed at Robins Air Force Base painting aircraft from 1968 to 1977 and medically retired due to his service-connected paranoid schizophrenia, which was causing interpersonal difficulties with co-workers. The examiner noted that the Veteran met the full DSM-IV diagnostic criteria for schizophrenia and he has daily severe symptoms. The GAF score was 40 and the examiner commented that the Veteran demonstrated some impairment in reality testing and communication with illogical speech at times, alogia, delusions of thought insertion, and ideas of reference. The examiner opined that the Veteran had occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran has stated that his service-connected psychiatric disability should be rated at least 70 percent. In his August 2007 notice of disagreement, April 2009 substantive appeal (VA Form 9, Appeal to Board of Veterans' Appeals), and during his September 2012 Travel Board hearing, he stated that his problems with co-workers, panic attacks and depression prevent him from functioning independently. He also reported having suicidal and homicidal thoughts. During his hearing he testified that he has no friends, prefers to be alone in his room and work by himself. On longitudinal review of the record the Board finds that the disability picture presented by the Veteran's psychiatric disability throughout approximates one of occupational and social impairment with deficiencies in most areas, and warrants the assignment of a 70 percent rating. This is the conclusion reached by the VA examiner and the rating the Veteran has stated is warranted. On VA examination, the Veteran appeared disheveled, had impoverished speech, impaired impulse control (weekly angry outbursts), had difficulty in adapting to stressful circumstances and is unable to establish and maintain effective relationships (only relationship is with his wife, has one friend, works alone or with one other person and perfers isolation). While the VA mental health treatment records include findings that may suggest there is a lesser level of psychiatric impairment, the overall record appears to suggest otherwise. For example, while it was noted the Veteran had an open affect, was willing to talk, and responded well to questions; it is noteworthy that the Veteran has a history of being medically retired from Robins Air Force Base due to his service-connected paranoid schizophrenia (which was causing interpersonal difficulties with co-workers). Further, while the VA treatment records and examination report show no current suicidal or homicidal thoughts, the Veteran's more recent statements and hearing testimony show he experiences such thoughts (but does not act on them). Accordingly, and with resolution of remaining reasonable doubt in the Veteran's favor, the Board concludes that a 70 percent rating is warranted. The Board finds no reason to question the credibility of the Veteran's own accounts; they are consistent with reports by the VA examiner and his treating mental health personnel. As the symptoms described meet (or at least approximate) the schedular criteria for a 70 percent rating under Code 9411, the Board finds that such rating is warranted throughout the appeal period. 38 C.F.R. § 4.7 . The evidence of record does not show that symptoms that meet (or approximate) the above-listed criteria for a 100 percent rating were manifest at any time during the evaluation period. At no time during the appeal period is it shown that the Veteran had total occupational and social impairment, due to such psychiatric symptoms as: gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting himself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, or other symptoms of similar gravity; no such symptoms have been shown. Although the VA examiner found delusions of thought insertion and the VA treatment records show a history of audiovisual hallucinations, the Veteran has reported that he learned to overlook such hallucinations and live his life. Consequently, the Board finds that the criteria for a schedular 100 percent rating are not met or approximated at any time during the appeal period. The Board finds that the GAF scores assigned do not provide a separate basis for an award of a rating in excess of 70 percent. The symptoms and level of impairment represented by the GAF scores of 40 (reflecting some impairment in reality testing) and 55 (reflecting more moderate symptoms) do not reflect total disability, so as to warrant a 100 percent rating. The Board has also considered whether referral for extraschedular consideration is indicated by the record. There is no objective evidence of symptoms of and/or impairment due to his psychiatric disability that are not encompassed by the 70 percent rating now assigned. Therefore, the schedular criteria are not inadequate. Accordingly, referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, as the record does not show, nor has the Veteran alleged, that he is rendered unemployable by virtue of his schizophrenic reaction, paranoid type; the record shows that he is employed, and has largely been employed throughout the appeal period. Accordingly, the Board finds that the matter of a total rating based on individual unemployability is not raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A 70 percent (but no higher) rating is granted for the Veteran's schizophrenic reaction, paranoid type, subject to the regulations governing payment of monetary awards. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs