Citation Nr: 1820980 Decision Date: 04/09/18 Archive Date: 04/19/18 DOCKET NO. 14-02 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable rating for hearing loss. 2. Entitlement to a rating in excess of 50 percent for schizophrenia, paranoid type. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel INTRODUCTION The Veteran had active naval service from September 1950 to May 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 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). FINDINGS OF FACT 1. In July 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeal on the issue of hearing loss was requested. 2. The occupational and social impairment from the Veteran's schizophrenia more nearly approximates total for the period on appeal. 3. A 100 percent rating for a psychiatric disorder has been granted; as such, the issue of entitlement to TDIU is rendered moot. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for a rating of 100 percent for schizophrenia, paranoid type, have been met for the entire period on appeal. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9201 (2017). 3. TDIU is moot. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While a veteran's entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Hearing Loss An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Acquired Psychiatric Disorder In addition to the laws and regulations outlined above, considerations in evaluating mental disorders include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on this basis. 38 C.F.R. § 4.126(b). DC 9201 specifically addresses schizophrenia; however, all psychiatric disabilities are evaluated under a General Rating Formula for Mental Disorders. Under the General Rating Formula, the Veteran's current 50 percent rating is warranted 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; and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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 relationship. A 100 percent rating is warranted with 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran asserts that his schizophrenia, paranoid type, is worse than is contemplated by the current rating. January 2010 VA treatment notes indicated that the Veteran complained of feeling excessively paranoid, especially when driving, and that he reported making unnecessary turns because of recurring beliefs that he was being followed. His wife was with him at his treatment and further attested that his paranoia and hypervigilance had been very severe. The Veteran also reported very strained relationships with his wife and others and a lack of socialization. He further reported that he was engaged in a custody battle for his granddaughter which even further deteriorated his condition. The examiner noted poor eye contact, slowed motor function, a depressed mood, hypervigilance, paranoia, and delusions. In April 2010, a treating VA physician noted that the Veteran had worsening symptoms as due to stress. The Veteran stated that he continued to be very paranoid, and that he constantly felt that people were looking at him while he was out. Again, his motor function was slow and his eye contact was poor, along with severe hypervigilance and paranoia. Later in April 2010, he was afforded a VA examination. The examiner diagnosed psychosis and paranoid schizophrenia for which the Veteran consistently received treatment, and was on anti-psychotics, anti-depressants, and anti-anxiety medication, along with individual psychotherapy. The Veteran reported an inability to go outside because he constantly felt that people were looking at him and whispering about him. He also stated that he suffered from depression, increased anger, and intermittent homicidal thoughts, reporting that he researched how to get a gun in the past. The examiner noted that his affect was constricted, he was anxious, and had a lot of paranoid ideations. The examiner opined that the Veteran continued to have paranoid ideations that affected his functioning, with exacerbations by his everyday life, such as the death of his daughter. However, the examiner noted that the Veteran had symptoms well before his daughter's death, and had always had increased difficulty dealing with stressors. The examiner stated that the Veteran's condition severely affected his thinking, judgment, family relations, work, and mood. Finally, the examiner opined that the Veteran exhibited reduced reliability and productivity due to his paranoid ideations and mood problems, which would affect his relationships, mood, and functioning. In March 2011, the Veteran reported to his regularly treating VA physician for further help. Again, he reported depression, irritability and paranoia. The examiner noted that his symptoms had continued to worsen, with increased irritability and paranoia, and opined that he had a poor prognosis for recovery. Also noted was poor grooming, slowed motor function, depression and irritability. As a result, the examiner opined that the Veteran's psychiatric disorder continued to render him totally and permanently disabled. In April 2011, the Veteran submitted a statement reporting homicidal tendencies which surfaced occasionally, and increased paranoia which caused his wife to become responsible for approximately 90 percent of their finances. He also reported long periods of irritability and instant anger for apparently no reason. In August 2013, VA treatment notes indicated that he was still having regular hallucinations and increased paranoid ideations. In a September 2013 VA examination, the examiner continued the diagnosis of schizophrenia, paranoid type. The examiner reflected that the Veteran was hospitalized as recently as 2010 for psychiatric issues and that he consistently sought treatment for psychosis. The examiner noted that the Veteran suffered from a depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty in adapting to stressful circumstances, including work or a work like setting, and persistent delusions or hallucinations. Furthermore, he reported hearing voices at night that called him a fool, and nightmares approximately one to two times per week. The examiner opined that the Veteran suffered from occupational and social impairment with reduced reliability and productivity. The examiner stated that the Veteran continued to be increasingly paranoid and suffered regularly from hallucinations and that he would have much difficulty dealing with others. The Veteran has been receiving regular treatment and mental health counseling at his local VA Medical Center throughout the entire period on appeal, and well before. While the two occupational and social impairment assessment opinions of record seem in stark contrast, his symptoms appeared consistent through the entire period on appeal. Based on the above, the Veteran is entitled to a 100 percent rating for schizophrenia, paranoid type, for the entire period on appeal. In this regard, his regular treating VA physician opined that he was totally and completely disabled by his psychiatric disorder. Furthermore, the examiner also stated that the Veteran was increasingly paranoid, suffered from hallucinations, and would have extreme difficulty dealing with others. It is clear from the consistent medical evidence of record that the Veteran experiences great difficulty being in public, interacting with people, including his family, and that he struggles with constantly increasing feelings of irritability, hypervigilance, and paranoia, as well as poor grooming and homicidal ideations. The conclusions reached by the Veteran's regular mental health provider, to include the specific opinion that he was totally and completely disabled, is assigned great probative weight due to frequency and regularity of treatment. Furthermore, the treating physician's findings largely comport with the findings of both VA examiners and the Veteran's symptoms appeared consistent throughout. Therefore, the overall disability picture more accurately reflects that the Veteran's social and occupational impairment is total and that a100 percent rating is warranted for the entire period on appeal. Therefore, the appeal is granted. TDIU As noted above, the Veteran has now been granted a schedular rating of 100 percent for an acquired psychiatric disability for the entire time on appeal. A 100 percent rating under the Schedule for Rating Disabilities means that a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994) (citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990)). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. As is potentially relevant here, VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). Specifically, SMC may be warranted if a veteran has a 100 percent rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. At 294 (analyzing 38 U.S.C. § 1114 (s)); see also 75 Fed. Reg. 11,229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). Notably, such a scenario is not present here. In order to obtain SMC for the relevant period, the evidence would have to establish that the Veteran's remaining service-connected disabilities entitled him to TDIU. However, his remaining service-connected disabilities were not rated at 60 percent or more, including tinnitus at 10 percent, hepatitis at 0 percent, and bilateral hearing loss at 0 percent. Thus, evidence weighs against a finding that his remaining service-connected disabilities alone have prevented him from obtaining or sustaining any kind of employment, including sedentary employment and referral to the Director of Compensation Service for extraschedular consideration is not required. Therefore, the issue of entitlement to a TDIU is moot. Finally, the appellant has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER The appeal for entitlement to a compensable rating for hearing loss is dismissed. Entitlement to a 100 percent rating for schizophrenia, paranoid type, is granted, subjected to the laws and regulations governing the award of benefits. Entitlement to TDIU is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs