Citation Nr: 1738245 Decision Date: 09/12/17 Archive Date: 09/22/17 DOCKET NO. 13 00 605A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a rating in excess of 30 percent from October 30, 2003, to August 31, 2006, and 70 percent from September 1, 2006, to December 16, 2008. REPRESENTATION Veteran represented by: Kathy A. Lieberman, Attorney ATTORNEY FOR THE BOARD M. Showalter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1974 until March 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the San Juan, Puerto Rico Department of Veterans Affairs (VA) Regional Office (RO). In May 2010, the Board ordered that service connection for schizophrenia be granted. Subsequently, the RO granted staged ratings for schizophrenia, assigning a 30 percent evaluation beginning on October 30, 2003, a 70 percent evaluation beginning on September 1, 2006, and a 100 percent evaluation beginning on December 17, 2008. The Veteran disagreed with these staged ratings, arguing that his disability picture more appropriately matched the 100 percent evaluation "effective October 30, 2003." In other words, the Veteran is seeking an increased rating for the first two periods of his staged rating evaluation. Accordingly, the Board has recharacterized the appeal as a claim for increased rating, rather than an earlier effective date for service connection. The Board notes that the Veteran currently has a 100 percent evaluation for schizophrenia beginning December 17, 2008. Because this rating constitutes the maximum benefit for the disability, an increased rating for this period is not under appeal. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT The Veteran's schizophrenia manifested in total occupational and social impairment, including persistent delusions and hallucinations, persistent danger of hurting self or others, and intermittent inability to perform activities of daily living from October 30, 2003, to the present. CONCLUSIONS OF LAW A disability rating of 100 percent is warranted for the Veteran's schizophrenia beginning October 30, 2003. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.73, 4.125, 4.130 Diagnostic Code 9201 (2016). REASONS OR BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, the Board is granting in full the benefit sought on appeal. Assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and does not need to be addressed. Legal Criteria: Initially, the Board notes that it has reviewed all of the evidence in the record, 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 of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided. 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 4. 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. Under diagnostic code (DC) 9201, schizophrenia is rated 30 percent when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupation 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). 38 C.F.R. § 4.130, Code 9201. A 50 percent evaluation 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. Id. 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 work-like setting); inability to establish and maintain effective relationships. Id. 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 of 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. 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); see Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not limited to those symptoms listed in the General Formula. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). 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. Id. Where an appeal is from the initial rating assigned with the award of service connection for a disability, the entire history of the disability must be considered and, if appropriate, separate "staged" ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Competent (that is, qualified) medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements contained in medical treatises, scientific articles, or research reports. 38 C.F.R. § 3.159(a)(1). Competent (that is, qualified) lay evidence means evidence not requiring that the person providing it have specialized education, training, or experience. Lay statements are qualified to establish than an event or circumstance occurred if the statements are provided by a personal who has personal knowledge of matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing observable symptoms or reporting that a medical provider gave them a diagnosis in the past. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay evidence may be qualified to establish that an event or injury occurred during service, or that a chronic disability began during service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board will grant the Veteran's claim if the evidence supports the claim or is in relative equipoise. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background: The Veteran was diagnosed with paranoid schizophrenia in July 1987. In a letter dated August 1987, a psychologist recommended the Veteran be hospitalized because his psychotic symptoms were a threat to himself and his community. In October 1987, the Veteran underwent a psychiatric evaluation where he reported seeing "an Indian woman" for several years. His wife at the time reported that the Veteran often talked to himself and had become aggressive since they were married. She reported that he tried to kill her. At that time, the Veteran was diagnosed with schizophrenia with intermittent explosive behavior. In March 1992 treatment records, the physician noted that the Veteran had poor personal hygiene and was generally suspicious and apprehensive. The physician noted that the Veteran had previous hospitalizations for his mental health and a history of not complying to his medication regiment. The Veteran reported that he had ideas of self-harm as well as "persecutory delusions," reporting that he believed that there were groups of people in the hospital trying to kill him and throw "roaches" in his bed while he was hospitalized. He also had perceptual disturbances, stating that he could hear the "voice of an Indian" commanding him to destroy and kill himself. In correspondence dated February 1993, the Veteran's spouse reported that her husband's mental conditioned was deteriorating every day. She stated that he suffers from depression and nightmares. She said that he often talked to himself. At a Board hearing in August 1997, the Veteran reported that after he was discharged from service, his mental health quickly deteriorated. He reported that when he returned to his home in Puerto Rico, he was regularly disoriented, violent, and asocial. He reported having difficulties with his friends and family. Since he had returned to the island, the Veteran reported that he had been hospitalized six times. He reported that he was awarded social security benefits in 1989 for his mental disability. The Veteran's wife also testified, reporting that the Veteran suffers from nightmares and aggression. In a psychiatric evaluation dated December 2001, the Veteran reported that he had been hospitalized four times in connection with his psychiatric symptoms. He reported symptoms of delusional thinking, auditory and visual hallucinations, and disturbed, aggressive behavior. He reported that he could not relate to his family or neighbors because of his irritability and paranoid issues. The physician noted that the Veteran appeared anxious, depressed, and guarded and that paranoid delusions caused his judgment and reasoning to be impaired. VA treatment notes from November 2003 show that the Veteran did not report delusions, no suicidal or homicidal ideations, and was noted to have intact cognitive function. Similarly, VA treatment notes from May 2004 show that the Veteran did not report delusions or paranoid thinking, but did report depressed mood. VA treatment notes from September 2006 show that the Veteran reported delusions, hallucinations, and nightmares. The physician noted that the Veteran was disheveled and poorly groomed and that his thought process was "irrelevant; at times, incoherent." The physician also indicated poor judgment and insight. The examiner noted that the Veteran denied homicidal or suicidal thoughts, but reported "ideas of killing men who have killed children." In VA treatment notes from November 2007, a physician noted that the Veteran had "little improvement since last visit." The Veteran reported continuing hallucinations, anxiety, and depression. He also reported having "premonitions." He reported that he recently was found at a gas station without remembering how he had gotten there. Correspondence dated April 8, 2008, from a private psychologist noted that the Veteran's schizophrenia was at least as likely as not related to the Veteran's service. She opined that the Veteran's psychiatric disability began during the 1970's while the Veteran was in service, as he began to show signs of a "prodromal phase" for schizophrenia. She described in detail how the Veteran's reported symptoms at this time were a foundation for his developing schizophrenia. VA treatment records from June 2008 show that the Veteran reported depression, low motivation, nightmares, and hallucinations. At that time he denied that the hallucinations were giving him commands. He also denied homicidal or suicidal ideations. In a December 2008 VA examination, the Veteran reported having several recurrent nightmares, including one where his inner organs were being "taken out and replaced with plastic, including his heart, his intestines." He also reported "being followed" and believing that "there is a spiritual entity, an Indian, who is with him." He reported that the "Indian" talks to him. He described this as a good entity, but then also the presence of a "bad entity" that wished him harm. He says he can only see the "bad entity" in the dark shadows of mirrors. He reported that these hallucinations and delusions were persistent and were accompanied by homicidal and suicidal ideations. The Veteran reported that despite medication, he could not sleep through the night because of these delusions. The examiner noted that the Veteran had poor interpersonal relations because he "turned aggressive" and attacked others after provocation. The examiner noted that the Veteran had questionable judgment, as he had provided answers that were not completely logical. The examiner noted that the Veteran had been hospitalized several times in the past two decades in connection with his schizophrenia. VA treatment records from July 2009 show that the Veteran was hospitalized after he had attempted suicide by jumping out in front of a moving car. The Veteran reported ongoing depression, anxiety, guilt, and having occasional "death wishes." He reported auditory hallucinations. While he was hospitalized, the physician noted that the Veteran was "fragile" and had "poor control of impulse and should continue to be admitted... to prevent self-harm or harm to others." The physician noted that he was also suffering from withdrawal from alcohol dependence. In September 2009, VA treatment records show no reported hallucinations or delusions at that time. In December 2009, the Veteran reported having suicidal ideas precipitated by command hallucinations. He reported multiple suicide attempts in the past and worsening symptoms such as sadness, crying spells, poor appetite, poor sleep, loss of concentration, and fatigue. In February 2010, the Veteran was again hospitalized after reporting suicidal ideations. In the notice of disagreement dated August 2011, the Veteran noted that he was determined "totally disabled" by the Social Security Administration based on the primary diagnosis of schizophrenia as of October 30, 2003. He also noted that the VA had granted him a pension as of that date as well. Analysis: The record clearly shows that the Veteran's diagnosed schizophrenia has been a longstanding disability that has affected the Veteran's life beginning shortly after his separation from service. It is also clear from the record that the Veteran's schizophrenia has caused severe and debilitating symptoms that have affected every aspect of the Veteran's life. His delusional thinking and hallucinations have not only caused detrimental mental and physical harm to himself, but have also threatened the wellbeing of those around him. The issue on appeal is the appropriate rating for this disability. As his rating currently stands, the RO has provided the Veteran with staged ratings based on the medical evidence beginning on the original effective date for the disability, October 30, 2003. The Board notes that the 30 percent evaluation beginning October 30, 2003, through August 31, 2006, and 70 percent evaluation beginning September 1, 2006 through December 16, 2008, correspond to his symptoms as documented in available VA treatment records during these periods. Accordingly, his symptoms as documented in VA treatment records in 2003 weren't as severe as they were in 2006, when he began to report delusions and hallucinations again. Furthermore, the RO provided the 100 percent evaluation beginning December 17, 2008, based on a VA examination in that month that showed persistent hallucinations and delusions that compelled the Veteran to self-harm and harm others. But after reviewing the evidence, the Board finds that a 100 percent evaluation is appropriate for the entire period on appeal. While the RO mapped the rating to the symptoms shown in VA treatment records, other evidence including the history of the Veteran's illness, the Veteran's pension benefits, as well as Social Security benefits show that he was in fact totally disabled from October 30, 2003, onward. A 100 percent evaluation corresponds to symptoms such as gross impairment of thought processes, persistent delusions or hallucinations, persistent danger to self or others, and inability to maintain personal hygiene. The Veteran's symptoms during this period map very closely to these symptoms in the 100 percent evaluation. While his symptoms may have waxed and waned through VA treatment notes, it is clear from his long history of mental treatment and the determinations made by the VA for his pension and the Social Security Administration that he was completely disabled from October 30, 2003 to the present. Accordingly, a 100 percent evaluation is warranted for the period on appeal. ORDER Entitlement to an increased rating of 100 percent beginning October 30, 2003 for schizophrenia is granted. ____________________________________________ JAMES D. RIDGWAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs