Citation Nr: 1322766 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 11-27 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an initial rating higher than 70 percent for paranoid schizophrenia during the periods from February 1, 1974 through July 17, 1975, from November 1, 1975 through August 12, 1979, and from April 1, 1980 through January 5, 1986. REPRESENTATION Appellant represented by: Sean Kendall, Attorney at Law ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In that decision, the RO assigned an initial 70 percent rating for paranoid schizophrenia during the periods from February 1, 1974 through July 17, 1975, from November 1, 1975 through August 12, 1979, and from April 1, 1980 through January 5, 1986. Temporary total (100 percent) ratings were assigned on the basis of hospitalization over 21 days during the periods from September 24, 1973 through January 31, 1974, from July 18, 1975 through October 31, 1975, and from August 13, 1979 through March 31, 1980. A 100 percent rating was assigned from January 6, 1986. These ratings were assigned based on a January 2010 Board decision which found that there was clear and unmistakable error in a December 1973 rating decision that denied entitlement to service connection for paranoid schizophrenia. As the Veteran was granted the full benefit he sought during the periods from September 24, 1973 through January 31, 1974, from July 18, 1975 through October 31, 1975, from August 13, 1979 through March 31, 1980, and since January 6, 1986, the issue of entitlement to a higher initial rating for paranoid schizophrenia is not on appeal during those periods. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In October 2011, the Veteran requested a hearing before a Decision Review Officer (DRO) at the RO and a Board hearing before a Veterans Law Judge at the RO (Travel Board hearing). He subsequently withdrew his hearing requests. In June 2013, the Board granted the Veteran's motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900 (c) (2012). 38 U.S.C.A. § 7107 (a)(2) (West 2002). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT From February 1, 1974 through July 17, 1975, from November 1, 1975 through August 12, 1979, and from April 1, 1980 through January 5, 1986, the Veteran's active psychotic manifestations of paranoid schizophrenia were of such extent, severity, depth, persistence, or bizarreness as to produce complete social and industrial inadaptability. CONCLUSION OF LAW The criteria for an initial 100 percent rating for paranoid schizophrenia, from February 1, 1974 through July 17, 1975, from November 1, 1975 through August 12, 1979, and from April 1, 1980 through January 5, 1986, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130 (2012), 4.132, Diagnostic Code (DC) 9203 (1973). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the Board is granting the highest rating possible for paranoid schizophrenia for all claim periods on appeal in their entirety, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis Disability evaluations are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 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. See 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. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 a rating 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, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran's paranoid schizophrenia is currently rated under 38 C.F.R. § 4.130, DC 9203. The Board notes that on November 7, 1996, VA amended the criteria for evaluating psychiatric disabilities. See 61 Fed. Reg. 52700 (Oct. 8, 1996). However, a new law or regulation applies, if at all, only to the period beginning with the effective date of the new law or regulation. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the periods on appeal in this case are dated prior to November 7, 1996, the amendments are not applicable in this instance and will not be applied in this case. Under the applicable criteria in effect prior to November 7, 1996, paranoid schizophrenia is rated under 38 C.F.R. § 4.132, DC 9203 according to the General Rating Formula for Psychotic Reactions. Under the General Rating Formula, the following ratings apply: a 70 percent rating is warranted for paranoid schizophrenia with lesser symptomatology such as to produce severe impairment of social and industrial adaptability; and a 100 percent rating is warranted for paranoid schizophrenia with active psychotic manifestations of such extent, severity, depth, persistence, or bizarreness as to produce complete social and industrial inadaptability. 38 C.F.R. § 4.132, DC 9203 (1973). The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). In this case, VA treatment records dated from September 1972 to October 1975 and an "Income-Net Worth and Employment" statement (VA Form 21-527) dated in September 1975 reveal that the Veteran has a high school education and that he worked in a shipyard prior to service. In the years since service he reportedly engaged in "a little work here and there" (including as a painter, a laborer at a shipyard, a construction worker, and as an employee at a chemical company and storage facility). However, he had experienced "repetitive loss of employment" and was unable to remain at one job for an extended period of time due to sickness and an inability to adjust to others. He had been fired on several occasions due to his disability and his doctors had refused to provide permission for him to return to work at various times due to his psychiatric symptoms. Also, he was periodically incarcerated for various offenses. VA hospital summaries (VA Form 10-1000) dated in January 1974 and October 1975 include opinions that the Veteran was employable, but no further explanation or reasoning accompanied these opinions. The Veteran was diagnosed as having, among other things, chronic schizophrenia. In an August 1976 letter, Linda Turley, R.N. reported that the Veteran had experienced several psychiatric hospitalizations in the years since service and that his history of following outpatient treatment recommendations was poor. He usually displayed psychotic symptoms and experienced periodic hostility, aggression, suspiciousness, belligerence, audio and visual hallucinations, and sleep impairment. He was seclusive and unable to deal with other people in a social or work environment. Overall, his condition was tenuous and his prognosis for recovery was poor. During a September 1976 hearing at the RO, the Veteran reported that he engaged in occasional "side work" (e.g. loading hay, growing watermelons, mowing grass) when he was able to perform such work, but that he had not had regular employment since his separation from service, that his longest period of employment lasted approximately 3 months, and that he was unemployed at the time of the hearing. He was initially able to get along with others at his various places of employment, but would develop paranoia that his coworkers did not like him and did not want him around. As a result, he would leave such employment. He had contemplated attending school in the past, but he lacked the concentration and patience to attend classes. With respect to other psychiatric symptoms, he experienced paranoia and occasional auditory hallucinations. He periodically attended church and clubs, but was unable to stay for extended periods of time because he was bothered by crowds and noise. He took medications to treat his symptoms. In a March 1979 letter, a medical professional from Mobile Mental Health Center reported that the Veteran had been treated at that facility between September 1973 and August 1978 and that he had failed to keep many scheduled appointments and was generally not dependable in keeping appointments. Although he was in need of outpatient treatment, his motivation for such treatment was poor and it was difficult to provide such treatment. Also, he frequently allowed himself to run out of medications, occasionally used alcohol, and was arrested on several occasions in early 1978 for disturbing the peach and resisting arrest. VA treatment records dated from August 1979 to September 1981, VA Forms 21-527 dated in September 1979 and October 1981, statements by the Veteran dated in March and August 1981, and a "Veteran's Application for Compensation or Pension" form (VA Form 21-526) dated in June 1981 indicate that the Veteran continued to engage in occasional employment, but that he had not regularly worked in several years. Although he was generally able to obtain work, he was unable to maintain full time employment due to his "nerves," the medications used to treat his psychiatric disability, feelings of paranoia, and the fact that he had difficulty relating to his employers. For example, he had reportedly worked as a carpenter for one year, but had stopped working in 1978 due to his psychiatric disability. He also worked for various periods ranging from 2 days to 4 months as a longshoreman and grinder at a shipyard, but was fired from his job at the shipyard in approximately March 1981. A November 1981 letter from the Social Security Administration (SSA) indicates that he was granted SSA disability benefits, effective January 1982. The Veteran further reported that he was mentally unable to handle his business affairs and that he had to depend on others for help because he would become paranoid and confused. He spent a great portion of his time in hospitals and was so disoriented at other times that he was unable to remember where he was for periods of his life. He also experienced impaired memory, sleep impairment, low self-esteem, poor appetite, low tolerance to frustration, poor judgment, no insight, and suspiciousness. He was socially withdrawn and easily provoked, would become angry, destructive, and threatening, and engaged in disorderly behavior. For example, he often had thoughts of killing his wife and had threatened to kill his girlfriend and her children in May 1981 if they did not stop "nagging him." Following that incident he was admitted to the hospital, at which time he was angry, sullen, and belligerent. During his hospitalization he was transferred to a closed ward service from the open ward service because he disturbed and threatened members of the staff and violently threw ash trays against the wall. His behavior improved with medication use on the closed ward, but he remained potentially homicidal for approximately a month before moving to an open floor. At the time of his discharge he was "obviously unable to be gainfully employed." Examinations revealed a sullen attitude, contempt for others, and a limited sensorium. The Veteran experienced paranoid thoughts of persecution by others and he had poor impulse control, a low tolerance for frustration, poor interpersonal relationships, fair initiative, work tolerance, productivity, frustration tolerance, and attention span, fair to good cooperation and socialization, and fair to poor judgment. He was withdrawn and occasionally threatening, his affect was flat, he had no insight, and he experienced auditory hallucinations. Also, he would stare "in a rather frightening fashion" and speak in a flat, low tone while talking to others. However, thought content and association were normal, there were no delusions, the Veteran was fully oriented, and he did not exhibit any suicidal or property destruction ideation. Diagnoses of paranoid schizophrenia were provided. A July 1982 VA examination report reveals that the Veteran experienced paranoid thoughts that others were against him and were out to cause him harm. He would periodically become belligerent or disorderly and would start to fight. Also, he was receiving SSA disability benefits because of his inability to work. Examination revealed that he was pleasant, cooperative, and well groomed. He was diagnosed as having paranoia and his prognosis was noted to be poor. The examiner who conducted the examination concluded that the Veteran was still unable to be gainfully employed, but that his improvement with medication use raised "the hope of employability" at some "unpredictable time in the future." VA treatment records dated from August 1983 to February 1984, an October 1983 VA examination report, a March 1984 VA Form 21-527, and a May 1984 statement by the Veteran (VA Form 21-4138) indicate that he provided varying information as to his employment history. For example, he reported that he had last worked in 1981 and that although he had attempted to perform house painting for relatives, he was not able to complete the job because his "nerves got so bad" and he had to be admitted to the hospital. During the October 1983 VA examination he initially indicated that he was employed in a shipyard at the time of the examination. However, he subsequently stated that he had been unemployed since receiving SSA disability benefits in 1982 and that he only occasionally cut grass. Also, in the May 1984 statement he reported that he was last employed in 1979 at a fabricator company in Alabama. As for psychiatric symptoms, the Veteran felt as if people did not like him and that they tried to do things to him because he was not needed. He also heard voices which told him that different people were against him and trying to cause him harm, and he was scared to ride in a car because he was afraid of being involved in an accident. He experienced some sleep impairment, irritability, confusion, memory problems, anxiety, interpersonal relationship difficulties, a constricted affect, and suspiciousness. His female companion reported that he was argumentative and that she was afraid he would hurt her or her children. Examinations revealed that the Veteran had a blunted affect and reportedly experienced auditory hallucinations, delusions, paranoid ideations, and ideas of reference. His speech was coherent and relevant and there was no overt dissociation of ideas at the time of the examination. A diagnosis of chronic paranoid schizophrenia was provided. Reports of VA examinations dated in February 1985 and February 1986 reveal that the Veteran was married to his second wife, that his marriage was "fairly stable," and that he had two children of his own and children from his wife's first marriage. He appeared to be older than his stated age, he was very slow moving and slow thinking, there was a prolonged reaction time in replying to questions, and he exhibited psychomotor retardation. He was unable to relax (likely due to medication use) and his lips trembled, he tapped his foot, and he had a habit of rubbing his hand across his head. His psychiatric medications also caused impotence and, as a result, he would get the dose lowered. However, he would then become disorganized and unable to relax, experience hallucinations, and exhibit "disorderly behavior." He was unemployed, had been in and out of hospitals for years, and spent his time working around the house, walking, and occasionally attending church. He had attempted to work as a cleaner approximately 5 months prior to the February 1986 examination, but he was unable to perform the job. Also, he experienced constant hallucinations, paranoid ideations, occasional depression, insomnia, poor appetite, suicidal ideation, and nightmares. However, there were no obsessions, compulsions, or phobias. Examination revealed that the Veteran was oriented and in fair contact with reality, but that he was circumstantial in his thinking and experienced defective judgment. He was diagnosed as having chronic paranoid schizophrenia. In a January 2013 letter, a physician from Singing River Services reported that the Veteran had been treated at that facility since November 2005 and that he had suffered from a severe mental illness since his first psychotic episode in service in the 1970s. He had experienced several exacerbations and hospitalizations and had been unable to work on any meaningful employment since the onset of his illness. He remained 100 percent disabled due to the chronic nature of his illness. The above evidence reflects that during all claim periods on appeal, the Veteran experienced significant difficulty in maintaining gainful employment. He was able to intermittently obtain employment for various periods, but such employment generally only lasted for short periods as he was either fired from his jobs or voluntarily left them due to the symptoms of his psychiatric disability (e.g. paranoia and social inadaptability) and the medications used to treat the disability. Also, he was hospitalized due to his psychiatric disability on various occasions and was not permitted by his treatment providers to return to work due to the severity of his symptoms. Although the Board acknowledges that he provided some inconsistent statements concerning the nature and history of his employment, he has been in receipt of SSA disability benefits since January 1982 and several medical professionals expressed their opinion that he was unemployable due to his paranoid schizophrenia. For example, at the time of his hospital discharge following threats made to his girlfriend and her children in May 1981, it was determined that he was "obviously unable to be gainfully employed." The examiner who conducted the July 1982 VA examination opined that the Veteran was still unable to be gainfully employed, but that employability was potentially possible in the future with medication use. Also, the physician who submitted the January 2013 letter reported that the Veteran had been unable to work on any meaningful employment since the onset of his psychiatric illness. The VA hospital summaries (VA Form 10-1000) dated in January 1974 and October 1975 include opinions that the Veteran was employable. However, these opinions are of minimal probative value because they are not accompanied by any specific explanation or reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). With respect to social impairment, the Veteran was generally socially isolated and unable to deal with other people in a social or work environment due to the symptoms of his active psychiatric disability, such as hostility, aggression, suspiciousness, belligerence, contempt for others, and paranoia. He was unable to remain in active social settings for extended periods of time because he was bothered by crowds and noise, was arrested on several occasions for disturbing the peach and resisting arrest, and caused others to fear for their safety. For example, he often had thoughts of killing his wife, had threatened to kill his girlfriend and her children if they did not stop "nagging him," and was placed on a closed ward during one period of hospitalization because he disturbed and threatened members of the staff and violently threw ash trays against the wall. In sum, the evidence is in at least equipoise that during all claim periods on appeal the active psychotic manifestations of the Veteran's paranoid schizophrenia were of such extent, severity, depth, persistence, or bizarreness as to produce complete social and industrial inadaptability. Such impairment most closely approximates the criteria for a 100 percent rating under the applicable criteria in effect prior to November 7, 1996. See 38 C.F.R. § 4.132, DC 9203 (1973). Thus, in light of the above evidence and resolving reasonable doubt in the Veteran's favor, an initial 100 percent rating for paranoid schizophrenia under DC 9203 is warranted during the periods from February 1, 1974 through July 17, 1975, from November 1, 1975 through August 12, 1979, and from April 1, 1980 through January 5, 1986. Hence, the full benefit sought on appeal is granted. Total Disability Rating Based on Individual Unemployability (TDIU) The United States Court of Appeals for Veterans Claims (Court) has held that entitlement to a TDIU is an element of all appeals for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). A TDIU is provided where the combined schedular rating for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a) (2012). A TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. If VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for TDIU moot where 100 percent schedular rating was awarded for the same period); Locklear v. Shinseki, 24 Vet. App. 311, 318, footnote 2 (2011). As the Board is granting an initial 100 percent rating for paranoid schizophrenia for all claim periods on appeal and a 100 percent rating is in effect since the effective date of service connection, the question of entitlement to a TDIU is not at issue in this case. ORDER Entitlement to an initial 100 percent rating, from February 1, 1974 through July 17, 1975, from November 1, 1975 through August 12, 1979, and from April 1, 1980 through January 5, 1986, for paranoid schizophrenia, is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs