Citation Nr: 1737705 Decision Date: 09/07/17 Archive Date: 09/19/17 DOCKET NO. 12-16 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for schizophrenia, paranoid type. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD C. O'Donnell, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1970 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for schizophrenia, paranoid type, with a rating of 10 percent, effective August 5, 2002. The Board remanded the case for further development most recently in March 2016. That development has been completed and the case has since been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. FINDINGS OF FACT For the relevant period on appeal, the Veteran's schizophrenia was productive of occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for schizophrenia, paranoid type, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9203 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2014); 38 C.F.R. § 3.159(b) (2016); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Here, the RO provided the Veteran with an adequate pre-adjudication VCAA notice in regard to his claim by a letter dated in July 2010. With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The Veteran's service treatment records and DD Form 214 are on file. Additionally, there are no outstanding post-service treatment records which the Veteran has specifically identified and authorized VA to obtain. 38 U.S.C.A. § 5103A(c) (West 2014); 38 C.F.R. § 3.159(c)(2), (3) (2016). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran was afforded a VA examination for his schizophrenia in March 2017, pursuant to the Board's March 2016 remand. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the March 2017 opinion, when taken together and with other evidence of record, is adequate to decide the case. The opinion sufficiently addresses the central medical issue in this case to allow the Board to make a fully informed determination and is supported by rationale. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (holding that "examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). The examiner's opinions were predicated on a full reading of all available records, including the Veteran's service treatment records, post-service treatment records, as well as the Veteran's lay statements. Barr, 21 Vet. App. 303, 312; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2016). Additionally, as noted above, the March 2017 opinion was obtained pursuant to the Board's March 2016 remand and is sufficient to decide this claim. The Board finds substantial compliance with the March 2016 remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with Board's remand instructions). The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim, and he did, in fact, participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Governing Law In January 2010, the RO granted the Veteran service connection for his schizophrenia, and assigned an initial disability rating of 10 percent, effective August 5, 2002. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "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). For the period on appeal, the Veteran's schizophrenia has been rated as 10 percent disabling under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, DC 9203. Pursuant to the rating formula, a 10 percent rating requires occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication 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 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 rating requires occupational and social impairment, but with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, 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 task); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for even greater occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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); and inability to establish and maintain effective relationships. The maximum rating of 100 percent requires total occupational and social impairment due to such symptoms as: 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; and memory loss for names of close relatives, own occupation, or own name. The use of the term "such as" in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." "Although the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of [occupational and social] impairment." Id. III. Analysis The evidence of record includes a September 2002 psychological assessment, the Veteran appeared to have good hygiene, was alert, coherent, and fully oriented to person, place and time. The Veteran had goal oriented and logical thoughts, and he denied suicidal and homicidal ideations. His memory appeared to be intact, and his sleep and appetite were normal. The Veteran reported that he had not had any hallucinations for at least a 21 month period prior to the date of the assessment, and he that he did not experience depression. In an October 2008 mental status report, the Veteran was noted as having a neat appearance, and was well oriented to person, place and time. His speech was clear and he was prompt with responses. The Veteran denied having had psychotic symptoms, as well as suicidal or homicidal ideations. He also denied having had hallucinations, delusions, or depersonalization. Further, there were no signs of impairment to memory, judgment, or general knowledge. Prison documents of record indicate that the Veteran maintains his mental health with medication compliance. In a March 2017 VA examination, the Veteran, who has been incarcerated since 1973, reported that he worked in a chapel as a clerk and orderly, and that he assisted with Sunday services. He reported that his schizophrenia had been controlled with medication for over 20 years, and that he was currently taking Prozac and Risperdal. To that end, he reported that his hallucinations and depression were controlled with continuous medication, and that the medication helped him sleep. The examiner noted that the Veteran was adequately groomed and fully oriented to person, place and time, in addition to being polite, pleasant and cooperative throughout the examination. The Veteran's thought process appeared organized, his speech was coherent, and he had good judgment and insight. There were no signs that the Veteran was experienced psychosis, and he denied suicidal or homicidal ideations. Moreover, the Veteran did not report any additional symptoms for his schizophrenia. Following the examination, the examiner opined that the Veteran's schizophrenia was productive of occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. Based on the evidence of record, lay and medical, the Board finds that the Veteran's overall disability picture more closely approximates the criteria for a 10 percent evaluation throughout the pendency of the appeal, which contemplates occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. The aforementioned evidence does not show that during the period on appeal, the Veteran had 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), as would warrant a 30 percent evaluation. Nor does the Board find that the Veteran's symptoms would more closely approximate any higher evaluation. In fact, the evidence before the Board indicates that, throughout the period on appeal, the Veteran's symptoms were controlled by continuous medication. To that end, the Veteran consistently denied suicidal and homicidal ideations, as well as hallucinations. As shown above, the Veteran was repeatedly noted as being neatly groomed, alert and oriented. Moreover, his thought processes were logical, coherent, and goal directed, and he did not report having any obsessional rituals. A review of the record shows that his insight and judgment were intact, and he did not have issues with memory loss. The Veteran did not report difficulties with sleep, and he did not report experiencing depression or panic attacks. Further, the Veteran reported no difficulties with his job as an orderly at the prison chapel, or with social interactions. Overall, the Veteran has not demonstrated symptoms consistent with the general level of impairment warranting a 30 percent evaluation or higher during any period throughout the pendency of his appeal, or akin to the symptoms listed as found in the rating criteria. During the period on appeal, the Veteran experienced impairment. However, the Board finds that the opinion of medical professionals, as well as the Veteran's lay assertions, demonstrate that the Veteran's symptomatology and level of impairment most closely approximates those assigned under a 10 percent evaluation, as was assigned to the Veteran throughout the period on appeal. See 38 C.F.R. § 4.130, DC 9203. When all of the evidence and findings contained therein are considered in totality, the Board finds that the Veteran has been shown to have levels occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Board concludes that the preponderance of the evidence is against a finding that an evaluation in excess of 10 percent is appropriate for any period on appeal, and the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. ORDER Entitlement to an initial disability rating in excess of 10 percent for schizophrenia, paranoid type, is denied. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs