Citation Nr: 20049902 Decision Date: 07/27/20 Archive Date: 07/27/20 DOCKET NO. 17-20 808 DATE: July 27, 2020 ORDER Entitlement to a 100 percent disability rating for other specified schizophrenia spectrum and other psychotic disorder with posttraumatic stress disorder (PTSD) and unspecified neurocognitive disorder (hereinafter, schizophrenia) from June 22, 1956 to August 30, 1956 is granted. Entitlement to a disability rating in excess of 70 percent for schizophrenia from August 30, 1956 to August 14, 2018 is denied. FINDINGS OF FACT 1. For the period from June 22, 1956 to August 30, 1956, the Veteran’s schizophrenia resulted in virtual isolation in the community and produced totally incapacitating psychoneurotic symptoms. 2. From August 30, 1956, until the effective date of the total rating on August 14, 2018, the Veteran's schizophrenia was primarily manifested by occupational and social impairment with deficiencies in most areas such as work, thinking and mood due but not by more severe manifestations of symptoms that more nearly approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 100 percent disability rating for schizophrenia, from June 22, 1956 to August 30, 1956, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.132, Diagnostic Code (DC) 9440 (1993). 2. The criteria for entitlement to a disability rating in excess of 70 percent for schizophrenia from August 1956 to August 14, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 9201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from October 1953 to December 1955. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). As a preliminary matter, the Board notes that this claim has been before the Board twice before. In April 2018, the claim was remanded to the Agency of Original Jurisdiction (AOJ) for additional development, to include an addendum medical opinion and obtaining outstanding treatment records. Then, in December 2019, the Board granted an earlier effective date for the Veteran’s service-connected schizophrenia and remanded the Veteran’s claim for an increased disability rating for such disability prior to August 14, 2018 for additional development. By way of history, service connection for schizophrenia was initially granted in a November 2015 rating decision, assigning a disability rating of 70 percent disabling, effective March 11, 2015. The Veteran filed a notice of disagreement in October 2016 for both the evaluation of this disability and the effective date of service connection. Subsequently, in October 2019, the AOJ increased the Veteran's disability rating for schizophrenia from 70 to 100 percent disabling effective August 14, 2018. However, the Veteran still perfected his appeal for an earlier effective date and increased rating prior to August 14, 2018. In a December 2019 Board decision, the Veteran was granted an earlier effective date for his service-connected schizophrenia, allowing service connection to be effective June 22, 1956. In that same decision, the Board also remanded the claim of entitlement to a disability rating in excess of 70 percent prior to August 14, 2018, to complete development and obtain evidence for the new period on appeal, i.e., from June 22, 1956 to August 13, 2018. INCREASED RATING Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's psychiatric disability is rated pursuant to 38 C.F.R. § 4.130, DC 9201, which corresponds to schizophrenia. Significantly, prior to November 7, 1996, psychiatric disorders were evaluated under 38 C.F.R. § 4.132 (General Rating Formula for Organic Mental Disorders). Effective November 7, 1996, 38 C.F.R. § 4.132 was re-designated as 38 C.F.R. § 4.130, which included then-new rating criteria for psychiatric disorders (General Rating Formula for Mental Disorders), which match the criteria today. Where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to an appellant applies (unless otherwise provided). Karnas v. Derwinski, 1 Vet. App. 308 (1991). VA has also issued a General Counsel opinion, which held that VA must first determine whether the revised version is more favorable to the Veteran, which may require the Board to apply both the old and new versions of the regulation. VAOPGCPREC 3-2000 (2000). If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. Id. Thus, while the Board must apply both the former and the revised versions of the regulation for the period prior to and subsequent to the regulatory change, an effective date based on the revised criteria may be no earlier than the date of the change. Id.; DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Accordingly, in this case, the Board must apply the previous version of the General Rating Formula for Organic Mental Disorders for the period prior to November 7, 1996, while for the period on and after that date, the Board must apply whichever version is most favorable to the Veteran. As in effect before November 7, 1996, the General Rating Formula for Psychoneurotic Disorders (VA Schedule) stated that a 70 percent rating was assigned when the ability to establish and maintain effective or favorable relationships with people is severely impaired. The psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent rating was assigned when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; or when there are totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior; or when the veteran is demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9440. Since November 1996, under this Code, a 70 percent evaluation 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); and the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if there is 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. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. In addition, the rating 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. Further, when rating the level of disability from a mental disorder, the extent of social impairment is considered, but a rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126. 1. Entitlement to a 100 percent disability rating for schizophrenia from June 22, 1956 to August 30, 1956 is granted. The Veteran contends that he is entitled to a rating in excess of 70 percent for the period on appeal. Evidence relevant to the level of severity of the Veteran's psychiatric disability includes private treatment records from June 22, 1956 through August 30, 1956. Treatment records from the Veteran’s hospitalization during this time period indicate that the Veteran was confused, delusional, and experiencing auditory hallucinations upon admission. Treatment providers reported that the Veteran was extremely irritable and agitated. The Veteran was not oriented to time and place and could not recall much of his past experiences or personal history. The treatment providers described the Veteran as “catatonic.” Following several sessions of electric shock treatment, the Veteran’s hallucinations resolved, and his psychiatric state began to improve. Treatment records indicate he was still confused but became more sociable and “less anxious and disturbed.” A preponderance of the evidence warrants a finding of a 100 percent rating for the period during which the Veteran was hospitalized. The record reflects that the Veteran was in virtual isolation in the community and had total repudiation of reality. Treatment records from his hospitalization during the relevant period on appeal reflect that the Veteran was confused, delusional, and experiencing auditory hallucinations. Further, the evidence reflects memory loss and disorientation of time or place during the relevant period. The Veteran’s hospitalization records indicate that the Veteran was not oriented to time and place and “could not recall much of his past experiences or personal history.” Examining the evidence holistically, the Board finds that from June 22, 1956 to August 30, 1956, the Veteran experienced totally incapacitating psychoneurotic symptoms. See 38 C.F.R. § 4.132, Diagnostic Code 9440 (prior to November 1996). Therefore, resolving any reasonable doubt in favor of the Veteran, a 100 percent disability rating is warranted for the period from June 22, 1956 to August 30, 1956. Notably, as will be discussed more fully below, in more recent examination, the Veteran confirmed that he worked for 20 years, and his last hospitalization was this one in 1956. Therefore, the evidence does not support that after his release from hospitalization, the total disability continued. 2. Entitlement to a disability rating in excess of 70 percent for schizophrenia from August 30, 1956 to August 14, 2018 is denied. As mentioned above, the Veteran contends that he is entitled to a disability rating in excess of 70 percent for the entire period on appeal. Evidence relevant to the level of severity of the Veteran’s schizophrenia during this portion of the appeal period includes VA treatment records from February 2015, a November 2015 VA examination, and lay statements from the Veteran and his family members. A February 2015 VA treatment record references the Veteran’s psychiatric symptoms, namely “chronic depression, anxiety, anger, labile mood swings, flashbacks, nightmares, hypervigilance, startle response, and insomnia[.]” Upon mental status examination during this evaluation for PTSD, the VA treatment provider indicated that the Veteran was oriented to person, place, and time and that the Veteran’s thoughts were “within normal limits.” The VA treatment provider indicated there was no evidence of hallucinations, delusions, or paranoid ideation; further, no suicidal or homicidal ideation. The Veteran was afforded a VA examination in November 2015. The VA examiner confirmed the Veteran’s diagnoses as other specified schizophrenia spectrum and other psychotic disorder, as well as unspecified neurocognitive disorder. During the clinical interview the Veteran reported that he has been married for 56 years to his wife, with whom he has two children. He reported that he has one sibling, a brother, with whom he is on good terms with. The Veteran indicated that upon separation from the military, he worked at a Veterans Hospital as a nurse’s aide, and then transitioned into retail and worked at various department stores for a combined total of 20 years. The Veteran reported that he has been receiving mental health treatment from the VA since December 2014 and confirmed that he was involuntarily hospitalized in 1956 as a result of his schizophrenic psychosis. His wife, who accompanied the Veteran during the examination, reported that during that time period the Veteran experienced “hearing voices, and was wandering the streets in the summer with a long coat on.” Regarding symptomatology, the Veteran reported that he feels depressed and has been depressed since the military. The Veteran’s wife reported that he frequently yells and becomes angry with her, sometimes even having hit her out of anger in the past. The Veteran reported that he does not frequently interact with others. His wife indicated that the Veteran can be confused at times. The Veteran denied any history of increased energy or decreased sleep or any other manic symptoms. The Veteran also denied any hallucinations or thoughts of suicide. The VA examiner indicated that the Veteran’s primary symptoms include depressed mood; anxiety; suspiciousness; mild memory loss; impairment of short-and-long-term memory; difficulty in understanding complex commands; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; inability to establish and maintain effective relationships; impaired impulse control; and grossly inappropriate behavior. Upon behavioral observation, the VA examiner indicated that the Veteran dressed appropriately, was alert, coherent, maintained good eye contact throughout the clinical interview. The VA examiner noted that he was argumentative, and his mood was irritable. Further, on several occasions during the examination, the Veteran became irritable and angry at his wife. The VA examiner indicated that the Veteran’s thought process was goal directed, but that he takes a long time to respond to questions and appeared to have difficulty comprehending issues or tasks. The VA examiner remarked that there was no evidence of hallucinations or delusions, and that the Veteran was not suicidal or homicidal. The Veteran did not know the month and thought the year was 2016. However, the Veteran did know the name of the current President and knew where the examination was taking place. The VA examiner reported the Veteran’s “insight and judgment superficially adequate.” In sum, the VA examiner indicated that overall, the Veteran exhibited occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In a January 2020 lay statement, the Veteran’s wife indicated that she met the Veteran in 1957 and that at that time, he did not like interacting with others and preferred to be alone. The Veteran’s wife reported that the Veteran would often become agitated and was easily irritable. The Veteran’s wife stated that the Veteran would often talk endlessly about “bizarre things” that “did not make any sense.” The Veteran’s wife stated that the Veteran struggled with severe anxiety, paranoia, and suspiciousness. Throughout their marriage, the Veteran’s wife observed that the Veteran had trouble getting along with co-workers, had trouble focusing, and would often obsess over his thoughts and actions. The Veteran’s wife stated that the Veteran would get confused between reality and his thoughts and that he had “memory problems” and could not remember dates, places, or conversations. The Veteran’s wife reported that the Veteran did not consistently take his psychotropic medications, and that because of his symptoms, was unable to work a steady job. The Veteran’s wife indicated that the Veteran was extremely impulsive; he would quit jobs and decide to move out of the family home for no reason. She also stated that while he mostly withdrew socially, there were some days when he would socialize with friends from church; however, the next day, he would become extremely paranoid and suspect that “people are trying to kill him.” The Veteran’s wife stated that throughout their marriage, the Veteran has not handled stress well. The Veteran’s wife also stated that his delusions and paranoia has worsened throughout the years. In a February 2020 lay statement, the Veteran’s son reported that while he was growing up, he observed the Veteran struggle with anger management and impulse control, stating that he would often hear the Veteran yelling and arguing, throwing things, and breaking things. The Veteran’s son stated that the Veteran was extremely isolated from others, and never joined the family in the community and rarely took part in church activities. The Veteran’s son indicated that the Veteran never really had friends and would limit his interaction to family members. The Veteran’s son stated that according to the Veteran, “most people were out to get him and hurt him[.]” The Veteran’s son stated that the Veteran has been extremely paranoid and suspicious, often having delusions that others are trying to harm him. The Veteran’s son stated that most recently, the Veteran has struggled with communicating and caring for himself, and that he has now become completely dependent upon family members. The Board finds that, from August 30, 1956 to August 14, 2018, a disability rating in excess of 70 percent is not warranted for the Veteran's service-connected psychiatric disability. The Board finds that the evidence of record does not show consistent symptomatology of the frequency or severity that warrants a 100 percent disability rating under either the prior or the current rating criteria. In consideration of the rating criteria in effect prior to November 1996, a total rating would be warranted if the evidence demonstrated totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior; or when the veteran is demonstrably unable to obtain or retain employment. The evidence above demonstrates that the Veteran was aware of reality and able to function in society, holding a job for 20 years and maintaining his ability to function in his daily activities, including maintaining a relationship with his wife and family. While he did experience significant symptoms that affected his functioning, the 70 percent rating is indicative of a high level of impairment. In relation to the current criteria, while the above medical evidence generally shows that the Veteran's psychiatric disorder results in occupational and social impairments with significant deficiencies in most areas of his life, including work, family, and social relationships, and other activities of daily living, which supports a 70 percent disability rating, there is no evidence of total occupational and social impairment for the period on appeal. The Veteran has been married for over 50 years and has a relationship with his children, as well as a good relationship with his brother. Although he does not regularly socialize or interact with others outside the family much, he is still able to maintain his familial relationships discussed above. As such, there is no indication that he has total social impairment. Additionally, there is no evidence of gross impairment in thought processes or communication, as the Veteran was able to effectively communicate with most VA examiners and treatment providers, and the VA examiner indicated that the Veteran had a goal-directed thought process. While there have been reports throughout the record of the Veteran experiencing hallucinations, these instances seem to have been acute and have since resolved and are not representative of a consistent or primary symptom of the Veteran’s schizophrenia. Further, the Veteran has denied auditory or visual hallucinations since hospitalization for his catatonic episode in 1956. Although the record does reflect that the Veteran is consistently paranoid and suspicious, the evidence of record does not indicate that the Veteran generally exhibits grossly inappropriate behavior; during the November 2015 VA examination the VA examiner indicated that the Veteran dressed appropriately, was alert, coherent, maintained good eye contact throughout the clinical interview. Notably, the Veteran was able to work for 20 years during the period in question, which further supports that while he was impaired, it was not total. The Veteran has consistently denied experiencing suicidal or homicidal ideation, thus, the weight of the evidence of record indicates that the Veteran is not a persistent danger of hurting self or others. While the Veteran has experienced some disorientation to time and memory loss, most of the evidence of record indicates that he is able to perform activities of daily living, such as personal care and hygiene, and that his insight and judgment is adequate. Further, the Veteran himself reported that he was able to obtain gainful employment, albeit at his will, throughout the period on appeal. Therefore, total occupational impairment has not be shown by the evidence of record. As such, the already assigned 70 percent disability rating is appropriate. As required by Mauerhan, the Board has looked at all the factors and evidence identified above to determine whether the Veteran has met or more closely approximated the criteria for a maximum 100 percent rating. However, when considering the overall evaluation of the examples which may support the 100 percent rating, the frequency, duration and severity of symptoms, the Veteran's capacity for adjustment, and the examiner's assessments of the Veteran's overall psychological, social and occupational functioning, the Board must conclude that the Veteran's psychiatric disability has not met or more closely approximated the criteria for a 100 percent rating at any relevant time. In this respect, the evidence demonstrates that from August 30, 1956 to August 14, 2018, the Veteran could still effectively converse with the VA examiner and VA treatment providers, and generally manage his daily activities. The weight of the evidence of record indicates that the Veteran was not psychotic or out of touch with reality during this period. Overall, the evidence has not shown that his psychiatric disability manifested the type, extent and severity of symptoms demonstrating "total occupational and social impairment" within the meaning of the rating schedule during the period on appeal. In so holding, the Board has generally found the statements of the Veteran to be truthful and credible evidence in support of this claim, which has been relied upon in awarding further compensation. However, even when considering these statements, the Board finds that the criteria for a rating greater than 70 percent have not been met. To the extent that the descriptions provided by the Veteran can be construed as supporting a higher rating still, the Board places greater probative weight to the clinical findings of the VA physicians who have greater expertise and training than the Veteran in evaluating the extent and severity of a psychiatric disability. There is no doubt of material fact to be resolved in his favor. 38 U.S.C. § 5107(b). As such, a disability rating of 70 percent, and no higher, is warranted from August 30, 1956 to August 14, 2018. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maietta, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.