Citation Nr: 21076450 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-20 808 DATE: December 23, 2021 ORDER Entitlement to a 100 percent disability rating for other specified schizophrenia spectrum and other psychotic disorder with depression, posttraumatic stress disorder (PTSD), and unspecified neurocognitive disorder (hereinafter "schizophrenia") from August 31, 1956 to August 14, 2018 is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, from August 31, 1956 to August 14, 2018, the Veteran's schizophrenia manifested in total occupational and social impairment. CONCLUSION OF LAW The criteria for a 100 percent rating from August 31, 1956 to August 14, 2018 for schizophrenia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.125, 4.126, 4.130, Diagnostic Code 9201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 1953 to December 1955. In July 2020, the Board of Veterans' Appeals (Board) issued a decision denying entitlement to a rating in excess of 70 percent for schizophrenia from August 31, 1956 to August 14, 2018. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2021 Order, the Court granted a Joint Motion for Partial Remand of the parties and remanded the case to the Board for action consistent with the Joint Motion. Increased Rating - Schizophrenia Entitlement to a rating in excess of 70 percent for schizophrenia from August 31, 1956 to August 14, 2018 The Veteran contends he is entitled to a rating in excess of 70 percent for service-connected schizophrenia for the period on appeal. Specifically, the Veteran's representative asserts the Veteran was 100 percent disabled beginning in June 1956, when he was involuntarily hospitalized for his psychiatric symptoms. See Veteran's Brief in Support of Appeal, February 12, 2018. 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. The Veteran's psychiatric disability is rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 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. In effect before November 7, 1996, the General Rating Formula for Psychoneurotic Disorders (VA Schedule) stated that 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 9201. Since November 7, 1996, under the amended criteria, 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 Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Evidence relevant to the level of severity of the Veteran's schizophrenia during this portion of the appeal period includes VA treatment records, a November 2015 VA examination, and lay statements from the Veteran and his family members. In addition, evidence relevant to the severity of the Veteran's schizophrenia during this portion of the appeal period, but received outside of the appeal period, include private treatment records from June 22, 1956 through August 30, 1956 and a February 2020 private doctor's evaluation. Treatment records from the Veteran's hospitalization from June 1956 to August 1956 indicate the Veteran was confused, delusional, and experiencing auditory hallucinations upon admission. Treatment providers reported 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 December 2014 VA treatment record indicates the Veteran endorsed depression; irritability and "blowing up,"; lying in bed for hours; periods of anger over the past 60 years; occasional nightmares, resulting in kicking and struggling in bed on occasion; uncomfortable in crowds; avoids memories of the military; frequently yelling and occasionally hitting his wife in anger; did not interact with other frequently; and can be confused at times. The Veteran indicated he last worked 35 years prior doing art shows, and as an artist and jazz musician. Mental status examination showed the Veteran had fair grooming and hygiene; normal eye contact; normal speech; mostly linear thought processes that was circumstantial at times; denied suicidal and homicidal ideations; denied delusions and obsessions; denied auditory, visual, or tactile hallucinations; mood was "alright"; affect was congruent with mood; oriented; memory limited; attention limited; and fair insight and judgment. A February 2015 VA treatment record references the Veteran's psychiatric symptoms, to include chronic depression, anxiety, anger, labile mood swings, flashbacks, nightmares, hypervigilance, startle response, and insomnia. Mental status examination indicated that the Veteran was oriented to person, place, and time and thoughts were "within normal limits." The VA treatment provider indicated there was no evidence of hallucinations, delusions, paranoid ideation, or 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 he has been married for 56 years to his wife, with whom he has two children. He reported he has one sibling, a brother, with whom he is on good terms with. The Veteran indicated 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. He reported receiving mental health treatment from the VA since December 2014 and confirmed he was involuntarily hospitalized in 1956 as a result of his schizophrenic psychosis. His wife, who accompanied the Veteran during the examination, reported 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 he feels depressed and has been depressed since the military. The Veteran's wife reported he frequently yells and becomes angry with her, sometimes even hit her out of anger in the past. The Veteran reported not frequently interacting with others. His wife indicated 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 denied hallucinations or thoughts of suicide. The VA examiner indicated the Veteran's primary symptoms included 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. The VA examiner noted he was argumentative, his mood was irritable, and on several occasions during the examination he became irritable and angry at his wife. The VA examiner indicated the Veteran's thought process was goal directed, but he takes a long time to respond to questions and appeared to have difficulty comprehending issues or tasks. The VA examiner remarked there was no evidence of hallucinations or delusions, and 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 2016 VA examination addendum, the VA examiner indicated the Veteran was argumentative, irritable, and irritable and angry with his wife without reason on several occasions during the examination. The Veteran's thought processes were goal directed but took a long time to respond to the questions; he appeared to have difficulty comprehending complex issues and tasks. The examiner indicated the Veteran would not be able to hold or sustain a job as a result. In a January 2020 lay statement, the Veteran's wife indicated she met the Veteran in 1957 and at that time, he did not like interacting with others and preferred to be alone. She reported the Veteran would often become agitated and was easily irritable. She stated the Veteran would often talk endlessly about "bizarre things" that "did not make any sense." She stated the Veteran struggled with severe anxiety, paranoia, and suspiciousness. Throughout their marriage, she observed the Veteran had trouble getting along with co-workers, had trouble focusing, and would often obsess over his thoughts and actions. She stated the Veteran would get confused between reality and his thoughts, had "memory problems" and could not remember dates, places, or conversations. She reported because of his symptoms, he was unable to work a steady job. She indicated the Veteran was extremely impulsive; he would quit jobs and decide to move out of the family home for no reason. She stated 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." She stated throughout their marriage, the Veteran has not handled stress well. She stated his delusions and paranoia has worsened throughout the years. In a February 2020 lay statement, the Veteran's son reported 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. He stated the Veteran was extremely isolated from others, never joined the family in the community, and rarely took part in church activities. He indicated the Veteran never really had friends and would limit his interaction to family members. He stated the Veteran thought most people were out to get him and hurt him. He stated the Veteran has been extremely paranoid and suspicious, often having delusions that others are trying to harm him. He stated most recently the Veteran has struggled with communicating and caring for himself and has become completely dependent upon family members. At a February 2020 private evaluation completed by Dr. M.C, Dr. M.C. reported the Veteran evidenced classic signs and symptoms for a primary thought disorder beginning during his active service and persisting throughout the present day, the progression of such symptoms was severe and pervasive, and was completely disabling both socially and occupationally for the Veteran. Dr. M.C. opined the Veteran's mental illness led to complete social and occupational dysfunction where the Veteran functioned on the fringe of society without the capacity for prosocial activity. Dr. M.C. opined the Veteran became completely unemployable due to his psychiatric symptoms since 1956. During his February 2020 interview, Dr. M.C. noted the Veteran reported symptoms of his schizophrenia that included feeling bizarre, violent, threatening, and driven by psychotic thought processing when interacting with individuals; deteriorating relationships with friends, family, and acquaintances; auditory and visual hallucinations; alteration in causal relationships; and self-medication with alcohol abuse. Dr. M.C. noted from 1956 and forward, his symptoms never remitted and the Veteran experienced many periods of complete dysfunction, adverse circumstances, destructive behavior, multiple treatments, and inpatient hospitalization. He was incapable of relationships due to his mental illness; the Veteran had periods of severe psychotic thought and was completely confused about the symptoms he experienced. Regarding occupational functioning, Dr. M.C. noted the Veteran worked a variety of jobs but struggled due to intolerance of interactions with others and inability to effectively communicate. The Veteran reported his memory, focus, and concentration had been very poor since 1956; he was unable to maintain any type of meaningful employment since 1956. During his occupational history, the Veteran reported he consistently heard voices, thought others were out to harm him, and experienced visual hallucinations of the devil. Therefore, Dr. M.C. concluded his schizophrenia symptoms have remained persistent from 1956 to the present day; were severe; and had persistent delusions, hallucinations, disorganized speech, and pervasive negativistic symptoms. In addition, Dr. M.C. concluded the Veteran was severely and pervasively mentally ill from 1956 going forward. Dr. M.C. opined the Veteran was never able to maintain consistent, meaningful, and gainful employment, and his behavior was socially and publicly severely altered by his schizophrenia. With respect to his employment, the Veteran and his wife reported he had a variety of odd jobs that were all short-lived, did not provide a living wage, and were fraught with the Veteran's propensity for unpredictable and violent behavior dating back to 1956. Dr. M.C. found the Veteran had consistently been a danger to himself, coworkers, the public, and supervisors as a result of his schizophrenia. Dr. M.C. opined the Veteran was thoroughly and completely disabled from psychiatric disease, and in reality, had been so since his discharge from active service in 1955. An April 2021 lay statement submitted by the Veteran reported following his separation from active service, he could not maintain a job due to his constant psychiatric episodes; severe delusions; inability to maintain regular employment; stopped working full-time in 1977; could not work due to inability of interacting with others, angry outbursts, negative thoughts, paranoia, anger, and being upset. Resolving reasonable doubt in favor of the Veteran, the Board finds the evidence warrants a 100 percent rating for the period on appeal. Looking to the criteria in effect before November 7, 1996, a 100 percent rating is warranted 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. Looking to the amended criteria, 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. Resolving reasonable doubt in favor of the Veteran, the Board finds the nature, severity, and frequency of his schizophrenia symptoms and resulting impairment throughout the appeal period warrants a 100 percent rating under both criteria. The Board gives probative weight to the Veteran's and his family member's lay statements describing the nature, severity, and frequency of the Veteran's schizophrenia symptoms and the resulting functional impact from 1956 to 2018. The Veteran and his family are competent to report observable symptoms and the statements are consistent with later treatment records. The record reflects the Veteran was in virtual isolation in the community and had total repudiation of reality from his hospitalization in June 1956. The record shows consistent unemployment, depressed mood, angry outbursts, periods of violence that demonstrates impaired impulse control, social isolation, paranoia, inability to interact with others at work, impaired familial relationships, and inability to interact with others. The record shows periods of confusion, delusion, experiencing auditory hallucinations, memory loss and disorientation of time or place. The Veteran's wife reported angry outbursts without provocation, violence toward her, confusion, social isolation, bizarre behavior, periods of incapacitation, delusions, auditory and visual hallucinations, disorientations, and minimal social interaction. The Veteran and his wife consistently endorsed the Veteran being socially isolated, distrustful of others, and extreme anger and irritability with members of his family and the public. This is consistent with his demonstrated aggression at his VA examinations and February 2020 private evaluation. Although the Veteran has remained married throughout the period on appeal to his wife, the Board notes the relationship has been regularly characterized as strained, fearful of the Veteran, and with periods of violence and angry outbursts. The Board gives probative weight to Dr. M.C.'s February 2020 opinion that the Veteran's schizophrenia symptoms have remained persistent from 1956 to the present day; were severe; with persistent delusions, hallucinations, disorganized speech, and pervasive negativistic symptoms. Dr. M.C. concluded the Veteran was severely and pervasively mentally ill from 1956 going forward. Dr. M.C. opined the Veteran was never able to maintain consistent, meaningful, and gainful employment, and his behavior was socially and publicly severely altered by his schizophrenia. Dr. M.C. opined the Veteran was thoroughly and completely disabled from psychiatric disease, and in reality, had been so since his discharge from active service in 1955. The Board finds this opinion credible because Dr. M.C. reviewed the claims file and interviewed the Veteran and his wife. Dr. M.C. is a psychologist and noted throughout the interview, he compared the Veteran's statements regarding different phases of his life to the medical record to confirm there was consistency and veracity to his presentation. The clinician opined there was no evidence of factitious symptomology, malingering, or other evidence he was trying to manipulate the mental health care system. Dr. M.C.'s opinion relied on treatment records and lay statements, which as noted above, the Board finds credible and gives probative weight. In summary, resolving reasonable doubt in favor of the Veteran, the Board finds the nature, severity, and frequency of the Veteran's psychiatric symptoms and resulting functional impairment most closely approximated the criteria for a 100 percent rating for the appeal period. Accordingly, a 100 percent rating for schizophrenia from August 30, 1956 to August 14, 2018 is warranted. TESS WINKLER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.