Citation Nr: 1752453 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 12-13 539 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 70 percent for schizophrenia, undifferentiated type. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disability. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Suzie Gaston, Counsel INTRODUCTION The Veteran served on active duty from January 15, 1968 to December 4, 1968. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied the Veteran's claim of entitlement to a rating in excess of 70 percent for schizophrenia, undifferentiated type, and entitlement to a TDIU. He perfected a timely appeal to that decision. In December 2016, the Board remanded the case for further evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in April 2017. There has been substantial compliance with the Board's remand directives. FINDINGS OF FACT 1. The Veteran's schizophrenia, undifferentiated type, is manifested by occupational and social impairment, with deficiencies in most areas of work, school, family relationships, thinking, judgment, and mood without total occupational and social impairment. 2. The Veteran's service-connected disability does not prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for schizophrenia, undifferentiated type, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.21, 4.130, Diagnostic Code 9204 (2017). 2. The criteria for a TDIU rating have not been met. 38 U.S.C.A. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual background & Analysis-I/R- schizophrenia, undifferentiated type. The Veteran seeks a rating in excess of 70 percent for his service-connected schizophrenia, undifferentiated type. The Veteran maintains that his symptoms are worse than reflected by the currently assigned 70 percent evaluation. 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. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When there is an approximate balance of 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; 38 C.F.R. §§ 3.102, 4.3. The severity of the Veteran's schizophrenia, undifferentiated type, is determined by the provisions of 38 C.F.R. § 4.130, DC 9204. Under the general rating formula, a 70 percent evaluation 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 which interfere with routine actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; 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; or memory loss for the names of close relatives, own occupation, or own name. The Global Assessment of Functioning score is a score reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF score of 41 to 50 is defined as denoting serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51 to 60 is defined as 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 co- workers). A GAF score of 61 to 70 is defined as 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 score of 71 to 80 indicates that, if symptoms are present at all, they are transient and expectable reactions to psychosocial stressors with no more than slight impairment in social and occupational functioning. See Carpenter v. Brown, 8 Vet. App. 240, 242-244 (1995). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words "such as" that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held 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. Id. at 118. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. As the Veteran is currently rated 70 percent for schizophrenia, undifferentiated type, the question now is whether the Veteran's schizophrenia more nearly approximates total social and occupational impairment. Based on the evidence of record, the Board finds that the Veteran has not demonstrated total impairment. Historically, in an August 1969 rating decision, the Veteran was granted service connection for depressive reaction, evaluated as 70 percent disabling, effective December 5, 1968. Subsequently, a rating action in July 1972 recharacterized the disability as schizophrenia undifferentiated type, and increased the rating to 100 percent, effective June 27, 1972. By a rating action in October 1977, the RO reduced the rating for the disability to 50 percent, effective January 1, 1978. In January 2011, the RO increased the rating from 50 percent to 70 percent, effective September 1, 2010. The Veteran's claim for an increased rating for his schizophrenia was received in March 2011. In conjunction with his claim, the Veteran was afforded a VA examination in August 2011. Following a mental status examination, the examiner reported a diagnosis of schizophrenia, chronic undifferentiated type; a GAF score of 65 was assigned. VA progress notes dated from August 2012 to December 2016 show that the Veteran received follow up evaluation for his schizophrenia. Subsequently, a DBQ examination was conducted in February 2017. The examiner noted that the Veteran's disability resulted in 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 medication. After a review of the evidence of record, the Board finds that a rating in excess of 70 percent for schizophrenia, undifferentiated type, is not warranted for any portion of the rating period on appeal. The evidentiary record clearly demonstrates that the Veteran has been diagnosed with schizophrenia, and he has exhibited symptoms of depressed mood, anxiety, sleep disturbance, disturbance of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. He also had irritable behavior, ideas of reference, suspiciousness, suicidal ideations, and social isolation. Such symptoms are contemplated by the 70 percent evaluation. 38 C.F.R. § 4.130, Diagnostic Code 9204. The record does not show, however, that the Veteran has total occupational and social impairment as is contemplated in the criteria for a 100 percent rating. In this regard, following the August 2011 VA examination, the examiner stated that there were no acute or chronic psychotic symptoms on today's examination; and, there was no evidence of grossly disorganized thought or behavior. The examiner also noted that the Veteran's symptoms are controlled by continuous medications. The examiner stated that the current examination does not show that the Veteran is totally disabled for gainful employment due to chronic schizophrenia. More recently, in February 2017, the QTC examiner opined that the Veteran's schizophrenia resulted in 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 medication. Furthermore, the Veteran does not have the symptoms listed as examples in the criteria for a 100 percent rating or symptoms of like kind. In this regard, the evidence does not suggest that he has gross impairment in thought process or communication, grossly inappropriate behavior, or memory loss, or disorientation to time or place. Significantly, the August 2011 VA examiner noted that no obsessive or ritualistic behavior was observed. He also reported that the Veteran denied any homicidal or suicidal thoughts. And, impulse control was described as good. Moreover, in February 2017, the QTC examiner described the Veteran's schizophrenia as mild. The evidence demonstrates that throughout the appeal period, the Veteran lived with his wife and had a good relationship with her and his four adult children; he described his marital and family relations as "good." Such evidence refutes a finding that the Veteran is totally socially and occupationally impaired. The Board notes that the Veteran's GAF scores throughout the appeal period, ranging from 50 to 65 assigned in August 2011, are not consistent with a rating in excess of the 70 percent assigned, and do not present an independent basis for assigning a rating in excess of the 70 percent. As noted above, the GAF scores of 50 to 65 represent moderate to serious symptoms and impairment in social or occupational functioning, but are not reflective of total social and occupational impairment. In viewing the totality of the evidence, the preponderance of the evidence is against a 100 percent disability evaluation for his psychiatric disability. In not granting a 100 percent schedular rating for his psychiatric disability, the Board is not minimizing the severity of the Veteran's symptoms. These symptoms, however, while productive of impairment, are not so severe that he can be said to be totally impaired. As discussed above, while he may have difficulty establishing and maintaining relationships with others, the evidence does not demonstrate total social and occupational impairment. Consequently, the Board finds that the preponderance of the evidence weighs against a finding of entitlement to a rating in excess of 70 percent for schizophrenia, undifferentiated type. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a rating in excess of 70 percent for schizophrenia, undifferentiated type must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). II. Factual background & analysis-TDIU. The Veteran essentially contends that he is unemployable as a result of his schizophrenia. Veteran's application for TDIU (VA Form 21-8940) was received in March 2011. He reported completing high school. He had occupational experience working with Caribe General Electric Company in production. The Veteran reported that he became too disabled to work in April 2010; he noted that he last worked full time in 2010. The Veteran indicated that he left work in 2010 because of absences from work due to his service-connected disability. Total disability ratings for compensation may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In this case, the Veteran is service connected for schizophrenia, undifferentiated type, rated as 70 percent disabling. The schedular criteria for an award of TDIU being met, the question before the Board is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of this service-connected disability. See 38 C.F.R. § 4.16 (a). The issue is whether the Veteran's service-connected disability precludes him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran's claim for a TDIU (VA Form 21-8940) was received in March 2011. In that application, the Veteran reported that he quit working in April 2010 due to absences caused by VA appointments due to the psychiatric disability. Of record is an employment information form from Caribe General Electric, dated in May 2011, indicating that the Veteran worked for the company as a set up operator from March 31, 1990 to April 30, 2010. It was also reported that the Veteran retired on April 30, 2010. On the occasion of the August 2011 VA examination, it was noted that the Veteran retired from his job in production assembly at General Electric Company in 2010. Following the examination, the examiner stated that the current examination does not show that the Veteran is totally disabled for gainful employment due to chronic schizophrenia. The examiner noted that the reason for separating from his former job as an assembler in 2010 was obstructive sleep apnea and another similar breathing related sleep disorder. Submitted in support of the Veteran's claim were records from the Social Security Administration (SSA). Among the records is the report of a disability determination explanation, dated in March 2012, which found that the Veteran was not disabled. It was determined that the impairment or combination of impairments caused by the Veteran's affective disorders and disorders of the back, does not significantly limit physical and mental ability to do basic work activities. On the occasion of a DBQ examination in February 2017, the Veteran reported that he retired in 2010, and no further employment history was reported or documented. The examiner noted that the Veteran's disability resulted in 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 medication. After a thorough review of the evidentiary record, the Board finds that the functional limitations imposed by the Veteran's service-connected disability do not render him unable to secure and follow a substantially gainful occupation. The most probative evidence of record does not demonstrate that the Veteran's service-connected disability would preclude him from being able to engage in substantially gainful employment. Significantly, as noted above, in an SSA disability determination, dated in March 2012, it was determined that the impairment caused by the Veteran's affective disorders does not significantly limit his ability to do basic work activities. In addition, the August 2011 VA examiner stated that the current examination did not show that the Veteran was totally disabled for gainful employment due to chronic schizophrenia. More recently, in February 2017, the QTC examiner opined that the Veteran's schizophrenia resulted in 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 medication. However, the Court has held that the Board is the entity that determines whether a TDIU is warranted, not the experts. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014) (explaining that "applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner"). The Board's decision rests on all of the relevant and probative evidence, not the medical opinions in isolation. In light of the foregoing, it is clear that the Veteran has experienced impairment due to his service-connected schizophrenia, undifferentiated type. However, by the assigned schedular ratings during the appeal period, the Veteran has been compensated for the symptomatology associated with his service-connected psychiatric disability. Thus, impairment of industrial capacity due to the service-connected schizophrenia has already been taken into consideration via the disability ratings assigned. The evidence does not show that the Veteran is incapable of performing the physical and mental acts required by employment due solely to his service-connected disability. As such, the evidence weighs against finding that his service-connected disability has caused unemployability. Entitlement to TDIU is thus not established. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Moreover, referral of the TDIU claim to the Director of Compensation Service for extra-schedular consideration is not warranted because the preponderance of evidence is against a finding that the Veteran's service connected schizophrenia renders him unable to secure or follow a substantially gainful occupation. ORDER Entitlement to a rating in excess of 70 percent for schizophrenia, undifferentiated type, is denied. Entitlement to TDIU is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs