Citation Nr: 1320045 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 10-34 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an initial rating in excess of 30 percent, and a rating in excess of 50 percent for the period from October 8, 2010, forward, for schizophrenia. REPRESENTATION Veteran represented by: Jonathan Bruce, Attorney ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1971 to March 1972 and was discharged under honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Republic of Puerto Rico. In March 2009, the RO implemented the Board's previous grant of service connection for schizophrenia and assigned an initial rating of 30 percent effective as of December 8, 2004, or the date of the service connection claim. The Veteran appealed from the assigned initial rating. In December 2011, the RO increased the rating to 50 percent effective as of October 8, 2010. As this was not a full grant of the benefit sought and the Veteran has not expressed satisfaction with this determination, the appeal continues from the initial unfavorable rating action. See AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran did not appear at a scheduled RO hearing as to his claim for a higher rating, and no Board hearing was requested. The Veteran (through his attorney) submitted additional evidence, along with a waiver of review by the agency of original jurisdiction, in August 2012. The Board has reviewed both the paper claims file and the Virtual VA paperless claims file (a highly secured electronic storage system). As discussed below, the benefit sought on appeal is being granted in full, and no further notice or development is necessary. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, throughout the period on appeal, his schizophrenia has resulted in total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating of 100 percent for schizophrenia have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9204 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran sought service connection for schizophrenia in December 2004. Following the grant of service connection, he disputed the initial rating that was assigned. He was assigned an initial rating of 30 percent, and a rating of 50 percent for the period beginning October 8, 2010. The Board's decision herein to grant a total (100 percent) disability rating for schizophrenia for the entire period on appeal constitutes a full grant of the benefit sought on appeal. Therefore, no further action is necessary to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated. Staged ratings must also be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-27 (1999). Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence of record that bears on occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of the examination. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. Under 38 C.F.R. § 4.130, all service-connected mental health disabilities are rated pursuant to the General Rating Formula for Mental Disorders. A 30 percent rating requires 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 normal conversation), 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). 38 C.F.R. § 4.130, Diagnostic Code (DC) 9204. A 50 percent rating requires 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. Id. A 70 percent rating requires 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating requires 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. Id. The symptoms listed in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list but, rather, serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating for a mental disorder. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The DSM-IV provides for a global assessment of functioning (GAF), a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the DSM-IV). The GAF score is not conclusive of the degree of impairment for VA purposes but, rather, must be considered together with all evidence of record. See 38 C.F.R. § 4.126. In this case, the evidence includes many VA and private treatment records from the past, as well as from 2003 forward, which are the most relevant for establishing the Veteran's current level of disability. He was afforded VA mental health examinations in July 2004 and March 2011. There are also several detailed private psychiatric evaluations and opinions as to the level of the Veteran's impairment, including in October 2003, June 2004, May 2012, and August 2012. Further, the Veteran and his wife of over 30 years have described his symptoms and perceived level of impairment, including during a May 2006 formal RO hearing. The Veteran last worked in October 2003, after injuring his back. He has reported that he had conflicts with coworkers and supervisors prior to that time, and he did not try to return to work after the physical injury. The lay and medical evidence generally reflects that the Veteran has had symptoms throughout the period on appeal including frequent depressed mood with crying spells, anxiety, and chronic sleep impairment. He had occasional memory loss for short-term and immediate recall, restricted affect, neglect of personal appearance and hygiene, and impaired concentration and attention. His judgment and insight were frequently noted to be fair or poor. As noted in a December 2003 private evaluation by Dr. F, the Veteran had low tolerance of stressful situations due to anxiety and irritability. The Veteran reported difficulty with relationships at work in the past. He has not worked during the period on appeal, other than acting as a mascot for the local baseball team for several months in 2009. He has also had persistent difficulties with his wife and grown children, although he remained married during the period on appeal and continued to have strained relationships with his son and daughter and their families. For example, a May 2005 VA social work note records that the Veteran had a history of family dysfunction with issues such as marital conflicts and communication problems, with frequent arguments and violent behavior from the Veteran. He has been frequently irritable and aggressive, with verbal outbursts but no physical assaults towards others. The Veteran's wife testified in May 2006, however, that he would throw food at her or break things during arguments, although he never actually hit her or the children. VA treatment records dated in April 2005 note that he was hospitalized for "turning aggressive," and he was again aggressive and demanding with no provocation prior to evaluation for VA inpatient psychiatric treatment in November 2006. Significantly, the Veteran has had persistent suicidal and homicidal ideation, as well as auditory and visual hallucinations. There were extended stretches in the medical records where he denied any suicidal or homicidal ideation, thoughts, or plans, and several records note that he did not have such thoughts or hallucinations while taking appropriate medications. Nevertheless, the Veteran has repeatedly reported thinking about or threatening to kill himself (by hanging or shooting), his wife, his son, his brother, and the mayor of his town. He was hospitalized repeatedly for psychiatric treatment due to such thoughts. The Veteran tried to hang himself with a rope several times in the past. During the period on appeal, he was hospitalized several times due to threats of suicide, including in June 2008 and May 2010, and he attempted suicide during an inpatient admission in September 2010 by tying his shirtsleeves around his neck. In April 2005, he was hospitalized for threatening to kill his wife and son with a gun after an argument with his son. The Veteran's suicidal and homicidal thoughts generally have been associated with auditory hallucinations where a male voice would tell him to kill or hang himself, or to harm others (including the mayor of his town). He also had visual hallucinations at times. The Veteran's GAF scores have ranged from 20 to 65 throughout the appeal. His private provider, Dr. F, assigned a GAF of 40 in December 2003, and provided a similar evaluation and report of symptoms in June 2004-although a July 2004 VA examiner assigned a GAF of 65 based on similar symptoms. These evaluations were within the year prior to his claim for VA benefits in December 2004. Thereafter, in general, the Veteran was assigned GAF scores ranging from 20 to 35 when he was admitted for inpatient VA or private psychiatric treatment, and GAF scores ranging from 50 to 65 upon discharge from inpatient treatment. He also had GAF scores from 50 to 65 during the intervening periods of outpatient treatment, which lasted anywhere from more than a year to less than a month. For example, he had inpatient treatment in January 2004, April 2005, August 2005, November 2006, June 2008, May 2010, June 2010, September 2010, October 2010, and June 2011. A GAF score of 61 to 70 indicates that the individual has some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. A GAF score of 51 to 60 indicates the presence of moderate symptoms (e.g., flat affect, circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). A GAF score of 41 to 50 indicates serious symptoms or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 31 to 40 indicates 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., avoids friends, neglects family, and is unable to work). A GAF score of 21 to 30 indicates that the individual's behavior is considerably influenced by delusions or hallucinations, or there is serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation), or there is inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). See Quick Reference to the Diagnostic Criteria from DSM-IV, 46-47 (1994). The Board notes that VA examiners assigned GAF scores of 65 in July 2004 and 55 in March 2011, which would indicate mild or moderate symptoms. The March 2011 examiner opined that there was not total occupational and social impairment, but there were deficiencies in all areas except school, which was not applicable. Nevertheless, the Veteran was found to be disabled by the Social Security Administration (SSA) in December 2003 due, at least in part, to his psychiatric disability. More importantly, a private examiner, Dr. C, personally examined the Veteran and conducted a thorough review of his VA and private records in August 2012. Dr. C opined that the Veteran had been "clearly fully disabled" since 2004, with total social and functional impairment due to psychiatric disability, and assigned a GAF score of 35. Similarly, the Veteran's private treating mental health provider, Dr. F, indicated in a May 2012 letter that the Veteran had been "entirely disabled and unable to work" due to his psychiatric disability since 2004. The Board finds that the private evaluations and opinions are more probative than the VA examiners' opinions as to the level of the Veteran's impairment throughout the appeal. This is because the private opinions, and especially the August 2012 report from Dr. C, reflect consideration of all pertinent evidence, including the Veteran's varying behavior and psychiatric hospitalizations throughout the appeal. Accordingly, considering all evidence of record, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence establishes total occupational and social impairment throughout the period on appeal due to schizophrenia. As discussed above, although the Veteran has had several periods with reduced symptoms, he had persistent and recurrent suicidal and homicidal thoughts and auditory hallucinations, which required repeated hospitalization to avoid harm to himself or others. The Board finds that the severity of the Veteran's symptoms and resulting occupational and social impairment were relatively stable throughout the appeal, and a staged rating is not appropriate. As such, a 100 percent rating is warranted for schizophrenia. 38 C.F.R. §§ 4.3, 4.130, DC 9204. As the Veteran is being granted a 100 percent schedular disability rating, there is no need to discuss extra-schedular referral under 38 C.F.R. § 3.321 or a total disability rating due to unemployability (TDIU). Rather, although there is evidence of unemployability due to the Veteran's schizophrenia, this is contemplated in the 100 percent rating assigned herein, and he is not service-connected for any other disability. But cf. Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) (stating that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation). ORDER An initial rating of 100 percent for schizophrenia is granted, subject to the controlling laws and regulations as to monetary payment. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs