Citation Nr: 1333445 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-00 359A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 30 percent for service-connected schizophrenia prior to April 5, 2011. 2. Entitlement to a rating in excess of 50 percent for service-connected schizophrenia after April 5, 2011. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to February 1970 and from October 1972 to May 1973, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that confirmed and continued a 30 percent disability rating for service-connected schizophrenia. In a September 2011 rating decision, the RO increased the disability rating to 50 percent, effective April 5, 2011. By way of background, a September 1993 rating action confirmed and continued a 30 percent disability evaluation for schizophrenia. Within one year of this determination, the Veteran did not express disagreement with this disability evaluation, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b); 20.201 (2013); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). As such, the September 1993 rating action became final. FINDING OF FACT For the entire appeal period, the Veteran's schizophrenia has been manifested by occupational and social impairment with deficiencies in most areas, especially judgment and thinking, due to such symptoms as speech intermittently illogical, obscure, or irrelevant; poor insight and judgment; thinking sometimes tangential and illogical; an incident of grossly inappropriate behavior; and an incident of memory loss for a close relative. CONCLUSION OF LAW For the entire appeal period, the criteria for a rating of 70 percent for schizophrenia have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and 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)(1). The notice requirements apply to all five elements of a service connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. The Board finds that VA has satisfied its duty to notify. Specifically, a January 2009 letter, sent prior to the decision on appeal, provided notice regarding what information and evidence was needed to substantiate his claim for increased rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The same letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained and considered. The Veteran was provided with VA examinations in February 2009 and June 2011. The Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected schizophrenia as they included interviews, physical examinations, and review of the claims file. The Veteran has not reported, nor does the record show, that his service-connected schizophrenia has worsened in severity since the most recent examination in 2011. As such, a new examination is not required. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The Board finds that all relevant facts have been properly developed, and all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). During the appeal period, the Veteran's schizophrenia has been rated 30 percent disabling before April 5, 2011, and 50 percent thereafter. He contends that throughout the entire appeal period his schizophrenia has been more severe than these ratings and that he is entitled to a higher evaluation. The Veteran's schizophrenia is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411 (2013). Ratings are assigned according to the manifestation of particular symptoms. 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). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. 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). When determining the appropriate disability evaluation to assign for psychiatric disabilities, however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013.) Under the General Rating Formula for Mental Disorders, a 30 percent rating 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for 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 for 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 that 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 for 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, Diagnostic Code 9411 (2013). Following a review of the relevant evidence of record, which includes VA and private treatment records dated after January 2008, the Veteran's lay statements, and VA examination reports dated February 2009 and June 2011, the Board concludes that the Veteran's schizophrenia warrants a rating of 70 percent, but not higher, effective January 15, 2009. The Board finds that for the entire appeal period the Veteran's schizophrenia has been manifested by occupational and social impairment with deficiencies in most areas, especially thinking and judgment, due to such symptoms as speech intermittently illogical, obscure, or irrelevant; poor insight and judgment; thinking sometimes tangential and illogical; an incident of grossly inappropriate behavior; and an incident of memory loss for a close relative. The evidence shows that the Veteran has serious deficiencies in the areas of thinking and judgment. Private physician Dr. Gale stated in September 2008 that the Veteran had weakened judgment and low insight due to his psychosis and that he denied all psychiatric problems. He dismissed his psychiatric hospitalization as a "misunderstanding." At his February 2009 VA examination, he reported that he had no major psychiatric symptoms in the last year, despite the fact that he had been hospitalized for an acute episode just five months earlier. At an April 2011 General Psychiatric Assessment, the VA psychiatrist noted poor insight, fair to limited judgment, questionable to poor reliability, thought processes that were at times illogical and tangential, and symptom minimization. VA treatment records dated October 2011 through October 2012 repeatedly state that the Veteran "has no insight into his mental illness" and did not understand why he needed to keep taking medication that he had been taking for decades. (emphasis added) It appears he has not taken his Prolixin injections since March 2012. VA treatment records show that in July 2012 his judgment was limited to poor. The June 2011 VA examiner found the Veteran was a very poor historian and his thinking was sometimes tangential and illogical. She summarized: He has little insight into his condition; he denies any current symptoms and denied any history of mental health symptoms. . . . He does not appear to have any significant problems performing day to day activities. However, speech is intermittently illogical which would impede work and social relationships. [Records show h]e has a history of disorganized speech and grossly disorganized behavior but there is no way to know how often these symptoms are occurring (as the Veteran denied that they ever occurred and there are only a couple of mental health records since his last exam). These symptoms likely make it impossible to work during the time he is experiencing them. . . . Disorganized speech and disorganized behavior likely impact social relationships during symptom flares in that his behavior is unpredictable and others would be uncomfortable around him. Therefore, the evidence shows that while the Veteran's symptoms may sometimes be more moderate or mild, during a flare-up or abstention from medication, his symptoms are serious and result in significant social and occupational impairment. The medical opinions of record concur that the Veteran is a poor historian with little insight into his mental illness who minimizes symptoms. Thus, resolving reasonable doubt in favor of the Veteran, it is likely that his symptoms and flare-ups are more frequent and severe than reported by the Veteran. The Board has also considered the Veteran's Global Assessment of Function (GAF) scores assigned during the course of the appeal. The GAF is a scale indicating the psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness. A GAF score between 21 and 30 indicates behavior considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation). A GAF score between 31and 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, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). GAF 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). A GAF score between 51and 60 indicates 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 coworkers). GAF scores of 61 to 70 are indicative of some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. A GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. DSM-IV; Massey v. Brown, 7 Vet. App. 204, 207 (1994). For the majority of the appeal period, the Veteran's GAF scores have reflected serious symptoms. He was hospitalized for several days in September 2008 after stopping his psychiatric medication and experiencing an acute exacerbation of his symptoms. At admission, he was assigned a GAF of 25, reflecting that his behavior was considerably influenced by serious impairment in communication or judgment. He had been acting grossly inappropriately, walking down the middle of a highway in traffic, and law enforcement had to taze him five times to subdue him and transport him to the hospital. Upon discharge, his GAF had improved to 50, indicating his symptoms were still serious. From April 5, 2011 to October 2012, the Veteran's GAF scores were consistently between 47 and 49, reflecting serious symptoms and serious impairment in social and/or occupational functioning. The Board acknowledges that the Veteran was assigned higher GAF scores of 60, 65, and 75 in February 2009, February 2011, and June 2011 that suggest milder symptoms. However, psychiatrists who have treated and examined the Veteran have consistently reported that he is a poor historian with remarkably little insight into his condition who minimizes (and often denies) symptoms and psychiatric history, despite his multiple hospitalizations and documented history of schizophrenia for more than 30 years. Notably, the GAF of 75 was assigned in February 2009 based on an inaccurate history that omitted his September 2008 hospitalization. Taking the Veteran's history and all of the evidence into account, the Board finds that the GAFs ranging from 47 to 50 most accurately describe the Veteran's serious symptomatology. Conversely, the Board finds that the symptoms do not more nearly approximate a rating of 100 percent under the General Rating Formula as they are not of such a severity or frequency to result in total occupational and social impairment. There is no evidence or medical opinion that the Veteran is totally occupationally and socially impaired. In this regard, there is no evidence in the record of gross impairment in thought processes or communication; persistent delusions or hallucinations; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for own occupation, or own name. The evidence shows that the Veteran has effective and close relationships with family members, has consistent good hygiene, and can perform daily activities. There are no documented delusions, hallucinations, disorientation to time or place, or memory loss for his name or occupation. There is evidence of grossly inappropriate behavior in September 2008 that led to his hospitalization. However, this appears to be an isolated incident during the appeal period after the Veteran had been off of his medication for some time. Similarly, there is one instance of his daughter reporting that the Veteran had not recognized his four-year old granddaughter when he was off of his medication. This is a single incident of memory loss for a close relative. The Board does not find that these two isolated incidents are sufficient to result in total occupational and social impairment warranting a 100 percent disability rating. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Board finds that the Veteran demonstrated symptoms characteristic of a 70 percent rating (speech intermittently illogical, obscure, or irrelevant) that have resulted in deficiencies in most areas, especially judgment and thinking. The Board notes that the evidence of record shows that the Veteran has additional symptomatology that is not enumerated in the rating criteria, including thinking sometimes tangential and illogical, and poor insight and judgment. The Board finds that the Veteran's disability picture and symptomatology, taken as a whole and in combination with the objective mental status examinations, have most nearly approximated the criteria for a 70 percent rating for the entire appeal period. The Board finds that the Veteran's symptoms have been stable throughout the appeal and therefore staged ratings are not appropriate. Francisco. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The United States Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's schizophrenia is characterized by occupational and social impairment with deficiencies in most areas, especially judgment and thinking, due to such symptoms as speech intermittently illogical, obscure, or irrelevant; an incident of grossly inappropriate behavior; and an incident of memory loss for a close relative. These manifestations are contemplated in the applicable rating criteria. The Board has carefully compared the level of severity and symptomatology of the Veteran's schizophrenia with the criteria found in the rating schedule. The Board has also considered symptoms of thinking sometimes tangential and illogical, and poor insight and judgment that are not found in the rating schedule. In sum, the Board finds that the Veteran has not described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation. Rather, his descriptions of schizophrenia symptoms are consistent with the degree of disability addressed by such evaluation. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. Finally, the Court has held that entitlement to a TDIU is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. As there is no evidence of unemployability due to the Veteran's schizophrenia, the question of entitlement to a TDIU is not raised. ORDER Effective January 15, 2009, a 70 percent rating for schizophrenia is granted, subject to the law and regulations governing payment of monetary benefits. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs