Citation Nr: 1806286 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-10 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for schizophrenia prior to September 20, 2017. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability prior to September 20, 2017. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1944 to February 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Jurisdiction was subsequently transferred to the Detroit, Michigan RO. The instant claims were previously before the Board in March 2017 when they were remanded for additional development. In November 2017, the RO increased the Veteran's evaluation for schizophrenia to 100 percent disabling, effective September 20, 2017. Since the Veteran has been in receipt of a total disability rating since September 20, 2017, the claim of entitlement to TDIU during this period is moot. For this reason, the Board has recharacterized the issue on appeal to encompass consideration of TDIU prior to September 20, 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to TDIU prior to September 20, 2017 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT For the period prior to September 20, 2017, the Veteran's schizophrenia had been productive of occupational and social impairment with reduced reliability and productivity, but did not result in deficiencies in most areas and was not productive of total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for schizophrenia prior to September 20, 2017 have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations, VA has a duty to notify and assist the claimant in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided in a letter dated April 2010. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and VA medical records have been obtained, as have relevant private medical records identified by the Veteran. The Veteran was provided VA examinations for his schizophrenia in April 2010 and September 2017. The Board finds that these examinations and the associated reports were adequate. Along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim. The examination reports were based on examination of the Veteran by an examiner with appropriate expertise who thoroughly reviewed the claims file. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). In March 2017 the Board remanded the claim for further development and adjudicative action, to include providing the Veteran a VA examination to address the current severity of his schizophrenia. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The requested development has been completed and associated with the claims file. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Therefore, VA has satisfied its duties to notify and assist, additional development efforts would serve no useful purpose, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). As noted in the introduction, the Veteran's schizophrenia was rated at 50 percent disabling from March 3, 2010 and is presently rated as 100 percent disabling from September 20, 2017. The criteria for evaluating schizophrenia are found at 38 C.F.R. § 4.130, Diagnostic Code 9201. A 30 percent rating is assigned when there is 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 evaluation is assigned 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation 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; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the VA's general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The nomenclature employed in the rating formula is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126(b). One factor for consideration is the Global Assessment of Functioning (GAF) score, which was a scale, considered prior to the publication of Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition as reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). The American Psychiatric Association has since determined that the GAF score has limited usefulness in the assessment of the level of disability. Noted problems include lack of conceptual clarity and doubtful value of GAF psychometrics in clinical practice. 79 Fed. Reg. 45093 (August 4, 2014). Nevertheless, when in use, a GAF score of 61 to 70 is 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. GAF scores ranging between 51 and 60 are assigned when there are 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). GAF scores ranging between 41 and 50 are indicative of 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). See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994). After a review of all the evidence of record, lay and medical, the Board finds that the Veteran's psychiatric symptoms meet or more nearly approximate the criteria for a 50 percent rating prior to September 20, 2017, but do not meet or more nearly meet the criteria for a 70 percent or 100 percent rating. The Veteran was afforded a VA examination in April 2010. The examiner commented that the Veteran had impairment with significantly reduced reliability and productivity. The Veteran reported worry, nervousness, irritability, paranoia, depression, and difficulty trusting people. He noted that he had been married to his wife for 63 years and had several grown children to whom he was very attached. He also had a lot of friends. The examiner noted that the Veteran's mental disorder was not causing him any occupational problems, though it appeared that he retired early due to continuing paranoia. In July 2013, the Veteran reported that he was sleeping 24 hours a day and as a result, was not eating meals and could not take care of his house or do his daily activities. The clinician found that the Veteran also had anxiety and dementia, but that he was not displaying any visible signs or symptoms from schizophrenia. His thoughts were clear, goal-directed, linear, and rational. The Veteran did not report any auditory or visual hallucinations, delusions, or suicidal or homicidal ideations. He was well-dressed with good grooming and hygiene, alert, oriented, cooperative, with good eye contact and interaction. His speech was normal. He reported interrupted sleep and worry. A psychiatry nursing note from September 2013 found the Veteran to be well-groomed, alert and oriented. His recent and remote memory were fair, and the Veteran reported forgetfulness. His concentration was focused, thought content was organized, and speech was regular. The Veteran denied any hallucinations and reported getting an adequate amount of sleep and that he had a good appetite. VA treatment records from October 2013 show that the Veteran had difficulty in comprehension, was experiencing circumstantial thoughts, and had constricted affect. He denied any active suicidal or homicidal thoughts, plan, or intent. The physician noted that the Veteran was functioning independently, and had fair grooming and hygiene, and was not showing any other signs or symptoms of schizophrenia. A May 2016 psychiatry progress note indicates that the Veteran was hospitalized for blood clot and pneumonia. The Veteran's daughter stated that she noticed that the Veteran's behavior changed, as though he was hallucinating. She notified the hospital of her father's psychiatric history and he was put back on his medication. The dosage of a different medication was lowered but the Veteran still experienced anxiety. Upon mental status examination, the Veteran was appropriately dressed, cooperative and friendly with appropriate affect and euthymic mood. He reported episodes of anxiety and denied the presence of hallucinations, delusions, or suicidal or homicidal ideations. He was alert and oriented and displayed good insight and judgment. A GAF score of 60 was assigned. The examiner noted a history of bipolar disorder, but did not note a history of schizophrenia or discuss the impact of the Veteran's schizophrenia on his psychiatric symptoms. In June 2017, the Veteran received treatment for bipolar disorder. On psychiatric examination, the Veteran was casually dressed with fair grooming and good eye contact. His speech was clear and coherent; his thought process was ruminative with no psychosis, suicidal or homicidal ideations. His judgment was limited. A GAF score of 50 was assigned. Based on the record, the Board finds that the Veteran's condition did not worsen such that a rating in excess of 50 percent is warranted prior to September 20, 2017. The evidence of record shows that the Veteran's schizophrenia caused no more than moderate deficiencies in his mental functioning prior to September 20, 2017. As stated above, the Veteran did not endorse any delusions, hallucinations, obsessions, or compulsions. Although cognizant that the Veteran reported suicide ideation in his May 2010 notice of disagreement, in examinations prior to this and after he denied homicidal or suicidal thoughts. Considering this evidence, the Board finds that he self-report in a notice of disagreement is outweighed by this comprehensive psychological evaluations both before and after this report. The evidence weighs against a finding of suicidal ideation during any period in appellate status. Further, he exhibited average insight, good judgment, and linear, logical and coherent thought process and content. His symptoms prior to September 20, 2017 caused no more than occupational and social impairment with reduced reliability and productivity. The Board has considered the Veteran's arguments and all of the evidence, but finds that his symptoms prior to September 20, 2017 have not been of the frequency, severity, and duration to warrant the assignment of a rating in excess of 50 percent. His symptoms have not caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood nor have his symptoms resulted in total occupational and social impairment. Therefore, a rating in excess of 50 percent is not warranted prior to September 20, 2017. ORDER Entitlement to a rating in excess of 50 percent for schizophrenia prior to September 20, 2017 is denied. REMAND The Board sincerely regrets the additional delay, but finds that further development is needed before the Veteran's claim for TDIU prior to September 20, 2017 can be decided. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such 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). The central inquiry is determining whether a TDIU is warranted is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, prior to September 20, 2017 the Veteran was service-connected for schizophrenia, evaluated as 50 percent disabling; and tinnitus, evaluated as 10 percent disabling. His combined rating was 60 percent. 38 C.F.R. § 4.25. Therefore, he did not meet the criteria for a schedular TDIU prior to September 20, 2017. If the schedular criteria are not met, TDIU may still be granted on an extraschedular basis. See 38 C.F.R. § 4.16(b). The rating boards are required to submit to the Director, Compensation and Pension Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). Here, the Board finds that the claim warrants referral to the Director, Compensation and Pension Service. The August 2010 addendum to the April 2010 VA examination noted that the Veteran retired early because of his chronic psychological problems. The Veteran described leaving his job early secondary to paranoia which the examiner noted was consistent with schizophrenia. The record also reflects that the Veteran attained a seventh grade education by the age of sixteen and was drafted into the Army two years later in 1944. After separation, he worked as a truck driver and at General Motors doing maintenance for 31 years before retiring for reasons explained above. The record reflects that the Veteran has been unemployed throughout the duration of the appeal. Given the above evidence suggesting that the Veteran's schizophrenia may render him unable to maintain or follow substantially gainful employment, the Board finds that the criteria for referral of the TDIU claim for extraschedular consideration have been met. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Refer the claim for entitlement to an extraschedular TDIU prior to September 20, 2017 to the Director, Compensation and Pension Service for a determination as to whether the Veteran is entitled to assignment of a TDIU under the provisions of 38 C.F.R. § 4.16 (b). 2. Thereafter, readjudicate the Veteran's claim for entitlement to an extraschedular TDIU prior to September 20, 2017. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case. Allow an appropriate period of time for response before returning the claim to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs