Citation Nr: 18150452 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 09-16 286 DATE: November 15, 2018 ORDER An increased evaluation of 70 percent, but no higher, for schizophrenia, paranoid type, is granted, effective August 23, 2006. Entitlement to a total disability due to individual unemployability is granted, effective December 1, 2006. FINDINGS OF FACT 1. From August 23, 2006, the Veteran’s schizophrenia has resulted in functional limitation most closely approximating occupational and social impairment with deficiencies in most areas. Specifically, the evidence demonstrates social and occupational impairment with deficiencies in mood, work, judgment, and thinking. It has not been productive of total social and occupational impairment. 2. Since December 1, 2006, the Veteran’s service-connected schizophrenia has precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. From August 23, 2006, the criteria for an increased evaluation of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU are met, effective December 1, 2006. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to February 1969 and from March 1969 to March 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The RO in Denver, Colorado certified the appeal to the Board. The Veteran’s claims file remains in the jurisdiction of the Denver RO. In November 2008, the Veteran testified before a Decision Review Officer (DRO). A transcript of the hearing has been associated with the claims file. In August 2017, the Board denied the Veteran’s claims of entitlement to a rating in excess of 50 percent for schizophrenia prior to March 22, 2012, and entitlement to a rating higher than 70 percent from March 22, 2012. Following the August 2017 decision, the Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (the Court). In a May 2018 Joint Motion for Partial Remand, the Secretary of VA and the Veteran (the parties) moved the Court to vacate the August 2017 Board decision to the extent that it denied the Veteran’s claim of entitlement to a disability rating in excess of 50 percent for service-connected schizophrenia, paranoid type, prior to March 22, 2012. The Court granted the motion and dismissed the remaining issue on appeal in a June 2018 order. As the claim for a higher rating prior to March 22, 2012 has been remanded, the issue of entitlement to a TDIU due to service-connected schizophrenia is also before the Board because the issue has been raised by the Veteran during the course of this appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that, in the context of an initial adjudication of a claim of entitlement to service connection or in the context of a claim for an increase “a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability”). Thus, the issues currently on appeal include TDIU due to service-connected schizophrenia prior to March 22, 2012. Increased Rating Prior to March 22, 2012 Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). As detailed above, the claim period is from November 22, 2002 and thereafter. under the criteria. The relevant rating criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411 are as follows. A 50 percent rating is assigned 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. Id. A 70 percent rating is assigned 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 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 assigned 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. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that the use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In light of new lay evidence as well as the August 2018 Psychological Evaluation Report obtained after the May 2018 Joint Motion for Partial Remand, the Board finds that the Veteran’s schizophrenia symptoms during the appeal period most closely approximate a 70 percent disability rating. Specifically, the evidence demonstrates social and occupational impairment with deficiencies in mood, thought, judgment and work. Although medical evidence documented certain symptoms more or less severe throughout the period under review, the Board views the evidence in the light most favorable to the Veteran and finds that the severity of his schizophrenia more closely approximated the 70 percent rating criteria. In a September 2007 letter (re-filed in November 2008), Dr. K.R. recorded symptoms of depression, anxiety, posttraumatic stress disorder symptoms, and auditory/visual hallucinations. She stated that these symptoms have been increasing in severity within the last year. She elaborated about the Veteran’s auditory hallucinations, explaining that “he perceives them as real people and real voices (although he knows they are not real) and at times he would find himself talking to them aloud.” The examiner described the Veteran as suffering from paranoid schizophrenia “significantly” and “chronically.” The examiner observed “that his symptoms are pervasive and have impacted all areas of his life throughout the years.” The Board finds the September 2007 letter to be the most probative piece of evidence assessing the severity of the Veteran’s schizophrenia prior to March 22, 2012. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Dr. K.R.’s statement is based upon several years of treating the Veteran’s psychiatric symptoms. Further, unlike the August 2018 Psychological Evaluation Report, Dr. K.R.’s correspondence offers a contemporaneous evaluation of the Veteran. Additionally, the Board notes that VA progress notes during the claim period generally do not document the Veteran’s reports of hallucinations and delusions. Dr. K.R. offered meaningful insight into this discrepancy of the record. Dr. K.R. found that the Veteran “learned a maladaptive coping style of dealing with his PTSD symptoms, perceptual abnormalities, and paranoid ideations . . . he continues to be unable to fully articulate and effectively describe his symptoms of psychosis both past and present.” With his current medication regimen, she found the Veteran more “unaware of experience ing perceptual abnormalities and decreased ideation regarding thought insertions . . . .” Additionally, an October 2007 VA examiner supported Dr. K.R.’s assessment of delusions and hallucinations. Specifically, the examiner detailed one of the Veteran’s reported hallucinations, which prompted the Veteran to stop working. The Veteran explained that the incident occurred while he was working the cash register at Macy’s in December 2006. A “Caucasian woman was in the line and he experienced her features turning in Vietnamese features.” The Veteran reported that he “freaked out.” He heard a voice say “you never killed a Vietcong so here’s your chance.” According to the Veteran, he left suddenly and never returned to his job. Overall, the examiner characterized the frequency of the delusions and hallucinations as intermittent. The examiner also addressed the Veterans’ other psychiatric symptoms. In particular, the examination report stated that the Veteran endorsed orientation with normal limited, appropriate behavior, speech within normal limits, appropriate thought process, normal abstract thinking, memory within normal limits, and judgment not impaired. The examiner found that the Veteran has difficulty establishing and maintaining effective work/school and social relationships because he appears to be unable to maintain work and has very limited social relationships. In regard to the Veteran’s family life, the examiner described him as “able to sustain a marriage for many years and to have some contact with family members.” In offering an impression of schizophrenic reaction paranoid type, the examiner stated “[i]t does appear that claimant, for unclear reasons, had an increase in psychotic symptoms, and due to this stopped working. Since receiving psychiatric medication and treatment, he has improved but likely would still be subject to decompensation with increased stressors, including work.” The August 2018 Psychological Evaluation Report offers further support in finding that the Veteran’s psychiatric symptoms are productive of social and occupational impairment in most areas. Following a telephone interview, Dr. D.E.B. authored a twelve-page report documenting his findings and assessments. Dr. D.E.B. concluded that, from August 2006 through 2012, the Veteran consistently exhibited “severe psychiatric symptoms including depression, anxiety, intense anger, irritability, chronic paranoia, difficulty concentrating, social isolation/avoidance, sleep impairment and early acute situational psychosis, affecting the ability to function independently, appropriately and effectively.” As the examination was not conducted in-person and evaluated retrospectively symptoms exhibited over six years ago, the Board assigns limited probative value to this evaluation report. Nevertheless, the evaluation report provided a concise history and a thorough evaluation of the Veteran’s mental health disability. The Board finds that the Veteran’s symptoms, specifically depression, anxiety, sleep impairment, paranoia, isolation, intermittent hallucinations, and intermittent delusions, have resulted in occupational impairment with deficiencies in most areas. In so finding, the Board considered the record as a whole and finds Dr. K.R.’s September 2007 letter and the October 2007 VA examination report highly probative as verifying the Veteran’s reports of intermittent hallucinations and delusions. Also, the reports relied on an in-person interview of the Veteran, detailed discussions of the Veteran’s medical and employment history, explained its findings, and provided supporting rationales. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Other favorable evidence included the Veteran’s April 2018 affidavit and the August 2018 Psychological Evaluation Report. Due to the nature of the schizophrenia symptoms, and as illustrated in the Veteran’s report of leaving his employment after a hallucinating incident, the Board finds that, throughout the appeal period, the Veteran’s schizophrenia has resulted in occupational and social impairment with deficiencies in work, judgment, thinking, and mood. Thus, this impairment has resulted in deficiencies that more nearly approximate the criteria for a 70 percent disability rating throughout the appeal period. In addressing why the criteria for a schedular rating higher than 70 percent are not met, the Board notes that the record does not reflect that the Veteran has demonstrated the symptoms associated with a 100 percent rating, or other symptoms of similar severity, frequency, and duration. Between August 2006, and March 2012, the record does not include reports of the Veteran experiencing homicidal ideations, or persistent suicidal ideations. The record supports that the Veteran’s hallucinations and delusions were intermittent. The September 2007 letter acknowledge the hallucinations increasing in severity, but did not address its frequency during the claim period. The October 2007 VA examiner described “occasional auditory hallucinations” and “intermittent hallucinations.” While the Veteran averred in April 2018 that he experienced persistent hallucinations during the claim period. Contemporaneous treatment records, however, do not support the Veteran’s contentions. See e.g., November 2006, July 2008, October 2008, and June 2008 VA Progress Notes (documenting no reports of hallucinations.) The Board finds the contemporaneous medical reports denying persistent hallucinations to be more probative. Additionally, throughout the claim period, the Veteran has demonstrated the ability to complete daily living tasks. At the October 2007 examination, the Veteran presented appropriate appearance and hygiene. Also, the examiner noted that the Veteran drove himself to the examination. In regard to his social relationships, the Veteran maintained a relationship with his wife and family. For example, July 2008 and June 2010 VA treatment records documented a stable relationship with his wife. Also, in October 2008, the Veteran reported feeling “blessed” that he and his wife can aid family members in the Philippines. As such, the behavior and relationship documented with his family does not demonstrate total social impairment. In determining that the criteria for a 100 percent rating are not met, the Board has considered the lay assertions, including the Veteran’s own statements and testimony, as to his symptomatology and the severity of his condition. Those statements primarily describe symptoms, such as irritability, depression, anxiety, intermittent hallucination and delusions as well as isolation, which are contemplated by the 70 percent, rather than the 100 percent, rating criteria. In any event, to the extent entitlement to a 100 percent rating based on those symptoms is claimed, the Board concludes that the findings during medical evaluation, which do not reflect total occupational and social impairment, are more probative than the lay assertions of record. The Board has accordingly relied heavily on the VA examinations and VA treatment showing limitation of function that, at most, approximates the criteria for a 70 percent evaluation. The record does not demonstrate an increase in severity to warrant an effective date earlier than August 23, 2006. Under 38 C.F.R. § 3.400(o)(2), the Board may assign a retroactive effective date up to one year prior to the date of claim if it is factually ascertainable that an increase in disability occurred within the year prior to claim filing. In particular, the Veteran’s increase in severity of hallucinations and delusions were not documented until September 2007. There, Dr. K.R. stated that the severity occurred within the last year. Also, the 2018 Psychological Evaluation Report concluded that the Veteran’s symptoms manifested deficiencies in most area from August 2006, but not earlier. VA progress notes prior to August 2006 do not demonstrate an increase in severity. In short, based on the evidence and analysis above, the Board finds the criteria for a rating of 70 percent for PTSD, but no higher, are met during the entire period under review. Accordingly, a 70 percent rating, but no higher is granted effective August 23, 2006. Entitlement to a TDIU Despite having determined that a 100 percent schedular rating for schizophrenia is not warranted, the competent and probative evidence of record shows that throughout the pendency of the appeal, the Veteran has been unable to obtain or maintain gainful employment due to his service-connected schizophrenia. In determining whether the Veteran is eligible to receive TDIU benefits, the Board observes that the Veteran is service-connected for schizophrenia (now 70 percent disabling, effective August 23, 2006) and coronary artery disease (30 percent disabling, effective August 23, 2006). The assigned combined evaluation for the Veteran’s service-connected disabilities meets the criteria for schedular consideration of TDIU. See 38 C.F.R. § 4.16(a). The Board acknowledges that the Veteran has not been employed since December 2006. As documented in the October 2007 VA examination report, the Veteran left his position at Macy’s because of a severe hallucinations incident. Further, the August 2018 Psychological Evaluation Report stated that the Veteran’s “severe symptom presentation has more likely than not rendered the Veteran unable to secure and follow substantially gainful employment since December 2006 when he last worked to the present.” The record does not reveal a specific date as to when the Veteran left his last place of employment. In reviewing the evidence, the Board finds entitlement to a TDIU due to the schizophrenia disability is warranted effective December 1, 2006, the earliest date that the Veteran displayed an inability to maintain gainful employment. (Continued on the next page) S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel