Citation Nr: 21010979 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 15-04 255 DATE: February 26, 2021 ORDER A rating in excess of 30 percent for schizophrenia prior to August 29, 2009, is denied. FINDING OF FACT For the period prior to August 29, 2009, the Veteran’s schizophrenia was productive of no more than definite impairment of social and industrial adaptability; the Veteran’s psychiatric disorder was not productive of considerable impairment of social and industrial adaptability, or from November 7, 1996, occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW Prior to August 29, 2009, the criteria for a rating in excess of 30 percent for schizophrenia for have not been met. 38U.S.C. §§ 1155, 5107; 38C.F.R. §§4.1, 4.3, 4.7, 4.126, 4.130. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1954 to October 1963. This matter returns to the Board after remand in October 2016, April 2019, and March 2020 for further development. The procedural history of this claim is discussed at length in the October 2016 Board remand and will not be repeated here; however, it is noted that this appeal stems from a June 30, 1980, informal claim for an increased rating for a service-connected psychiatric disorder that has remained pending. Although the rating for the Veteran’s service-connected schizophrenia was increased to 100 percent effective August 29, 2009, given that the June 1980 informal claim remained pending, this increase does not represent a full grant of the benefits sought on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In March 2020, the Board granted an initial 30 percent rating for schizophrenia and remanded the issue of entitlement to a higher rating. The RO implemented the Board’s grant in a May 2020 decision. By way of a June 2020 VA Form 10182 the Veteran attempted to appeal the May 2020 decision in the Board Hearing docket of the modernized review system created by the Appeals Modernization Act (AMA). However, as explained in the Board’s October 26, 2020, notice letter, the Veteran cannot opt-into the AMA system as the May 2020 rating decision implemented a partial grant of entitlement to a higher rating for schizophrenia following a Board remand, and the issue of entitlement to a higher rating remains pending in the legacy (non-modernized) system because it was not an initial decision on or after the effective date of the AMA, which is February 19, 2019. See 38 C.F.R. §§ 3.2400, 19.2. In addition, in a November 2020 letter, because the Veteran had indicated he wished to have a hearing with a Veterans Law Judge, the Board asked the Veteran to clarify whether he seeks a hearing before a Veterans Law Judge. The Veteran had 30 days from the November 3, 2020, letter to provide a response, or his case would be decided without a hearing. To date, the Veteran has not responded to the notice. Accordingly, the Board will adjudicate his appeal without a hearing. A rating in excess of 30 percent for schizophrenia prior to August 29, 2009, is denied. The Board finds that entitlement to a rating of in excess of 30 percent for service-connected schizophrenia is not warranted prior to August 29, 2009. The schedular criteria for psychotic disorders that were in effect at the beginning of the rating period at issue in this appeal were amended effective February 3, 1988. See 53 Fed. Reg. 23 (January 4, 1988). The schedular criteria were amended again effective November 7, 1996. See 61 Fed. Reg. 52695 (Oct. 8, 1996) (amending the sections of the VA schedule for rating mental disorders); see also 38 C.F.R. § 4.130 (general rating formula for mental disorders) (2009). The Board is required to consider the claim in light of both the former and revised schedular rating criteria. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change. However, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467(1997). The Applicable Diagnostic Criteria Prior to February 3, 1988, the General Rating Formula for Psychotic Disorders stated that a 10 percent evaluation was assigned for slight impairment of social and industrial adaptability; a 30 percent evaluation was assigned for definite impairment of social and industrial adaptability; a 50 percent evaluation was assigned for considerable impairment of social and industrial adaptability; a 70 percent evaluation was assigned with lesser symptomatology such as to produce severe impairment of social and industrial adaptability; and a 100 percent evaluation was for active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. Effective February 3, 1988, the applicable regulation provided that a10 percent evaluation was assigned for mild impairment of social and industrial adaptability; a30 percent evaluation was assigned for definite impairment of social and industrial adaptability; a 50 percent evaluation was assigned for considerable impairment of social and industrial adaptability; a 70 percent evaluation was assigned with lesser symptomatology such as to produce severe impairment of social and industrial adaptability; and a 100 percent evaluation was assigned for active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. The term “definite” has been defined as “distinct, unambiguous, and moderately large in degree,” representing a degree of social and industrial inadaptability that was “more than moderate but less than rather large.” VAOPGCPREC 9-93, 59 Fed. Reg. 4752 (1994); see also Hood v. Brown, 4 Vet. App. 301 (1993). Finally, effective November 7, 1996, 38C.F.R. §4.130 relating to rating mental disorders, provides that: - a10 percent rating will be assigned for a psychiatric disorder which is productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication’ - a 30 percent rating will be assigned for a psychiatric disorder which is productive of 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, and mild memory loss (such as forgetting names, directions, recent events) - a 50 percent rating will be assigned for a psychiatric disorder which is productive of occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring 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 or forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships; - a 70 percent rating will be assigned for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 an inability to establish and maintain effective relationships; and - a 100 percent rating will be assigned for total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an 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. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Application of Rating Criteria As the Veteran is in receipt of a 30 percent rating prior to August 29, 2009, his claim turns on whether his schizophrenia was productive of considerable impairment of social and industrial adaptability, from November 7, 1996, occupational and social impairment with reduced reliability and productivity. As detailed above, considerable impairment of social and industrial adaptability is more severe than definite, which supports the current 30 percent rating and is characterized by “distinct, unambiguous, and moderately large in degree,” representing a degree of social and industrial inadaptability that was “more than moderate but less than rather large.” VAOPGCPREC 9-93. In applying the relevant diagnostic criteria as set forth above, the Board finds that a rating in excess of 30 percent is not warranted for the period prior to August 29, 2009. The credible medical and lay evidence of record show that the Veteran’s service-connected schizophrenia has been productive of no more than “definite” (i.e., more than moderate) impairment of social and industrial adaptability throughout the appeal period. Moreover, the evidence does not support a finding of considerable impairment of social and industrial adaptability, or from November 7, 1996, occupational and social impairment with reduced reliability and productivity. Although there is no medical evidence of record that was generated between 1979 and June 2008, there is relevant evidence concerning the severity of the Veteran’s schizophrenia and the social and occupational impairment caused by this disability during the relevant time period. Notes on June 5, 2008, and August 12, 2009, include negative depression screens. The August 2009 note, which was not for mental health treatment, indicates a history of schizophrenia, but that the Veteran was stable and not on medication. During a November 2009 VA examination, the Veteran reported that he worked in construction, laid bricks, engaged in concrete work, and has driven truck as part of construction work over the years since 1971. It was noted that he had not held regular employment since 2007. With regard to social impairment, he reported that he and his second wife divorced in 1968 and he married a third time in 1972, but he and his third wife separated in 1981 and have not reconciled. He reported having three adult sons, two of which he had relationships with and one with whom he was estranged. He reported killing another man in a bar fight in 1990, for which he served 18 months in jail. He was also incarcerated from 1973 to 1987 for assault but has had no legal problems since 1999. At the time of the November 2009 VA examination, he was living in his own home. In light of the Veteran’s reported history, the November2009 VA examiner observed that the Veteran social and vocational adjustment “have proven somewhat marginal” ever since the early 1960s. The examiner noted that his history showed that his “social adjustment has been chronically poor, and there has been abundant friction with the law.” The examiner further stated, “[i]t is this examiner’s opinion that the [Veteran’s] social, vocational, and interpersonal adjustment have proven compromised ever since his time in the U.S. Army.” It was noted that the Veteran’s schizophrenia made him cognitively and behaviorally disorganized in response to even routine vocational stress and would cause him to demonstrate reduced reliability and productivity in the workplace. The examiner stated that the Veteran was prone to belligerence in response to stress or emotional threat and can be expected to manifest problems with anger and temper in a work setting. The Board finds the examiner’s opinion highly probative as it contains clear conclusions with supporting data and a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Likewise, the June 2012 VA examiner noted that the Veteran’s history and provided an opinion concerning the effects of his schizophrenia on occupational and social functioning. After an interview with the Veteran, the June 2012 VA examiner found that the Veteran endorsed disturbance specific to stress and frustration tolerance, with isolative and socially avoidant behavior. The examiner acknowledged the Veteran’s history of aggressive behavior, which resulted in frequent interaction with law enforcement. The examiner found that the Veteran’s reliability and productivity within vocational settings has, historically, been compromised by his thought disorder, and found that his mental health symptoms affect his ability to get along with others in any setting including a work setting. When considering the Veteran’s history, the examiner noted that the Veteran is easily stressed and he responds poorly in stressful situations, stating that he is likely to respond with anger, with increased impaired judgment at those times. It was further noted that the Veteran’s mental health symptoms also likely affect his overall attentional abilities and his ability to stay focused would likely deteriorate when upset or under stress. The Board acknowledges that the July 2012 examiner was discussing the Veteran’s level of functional impairment at the time of the examination in 2012; however, the examiner clearly noted that his opinion was based on the Veteran’s past behavior, indicating that Veteran has had these same difficulties throughout the appeal period. Moreover, the Veteran has also competently and credibly reported during his examinations that his psychological problems have not grown worse over time, indicating that his condition has been relatively static. He has reported in numerous written statements and at his hearing before a Decision Review Officer that he has had difficulty maintaining employment throughout his life due to his schizophrenia. The Board finds that this evidence, along with the opinions of the November 2009 and June 2012 VA examiners, demonstrates “definite” impairment of social and industrial adaptability because the evidence shows that the Veteran’s social and industrial inadaptability has been more than moderate. Consequently, a rating of 30 percent is warranted throughout the appeal period. By extension, the evidence does not show that prior to August 29, 2009, the Veteran’s schizophrenia was not productive of considerable impairment of social and industrial adaptability, from November 7, 1996, occupational and social impairment with reduced reliability and productivity, either of which would warrant a 50 percent rating. Given the absence of evidence relevant to the period prior to August 2009, in March 2020, the Board remanded the appeal, providing the Veteran an opportunity to obtain treatment records from this period and requesting that an examiner attempt provide a retrospective opinion regarding the severity of the Veteran’s schizophrenia prior to August 2009. Critically, the Veteran provided no records or evidence to support a rating in excess of 30 percent for schizophrenia. Additionally, in July 2020, following detailed review of the evidence of record and interview with the Veteran, a VA psychologist opined that he could not render an opinion regarding the severity of the Veteran’s schizophrenia prior to August 2009. The psychologist explained that given the absence of mental health treatment during that period, it would be impossible for him to provide a rationale for any opinion he might provide. Given the examiner’s reasoned response, the Board finds that the examination substantially complied with the directives of the July 2020 remand. For the reasons discussed above, the Board finds that the evidence of record does not support a finding that prior to August 29, 2009, the Veteran’s schizophrenia was productive of considerable impairment of social and industrial adaptability, or from November 7, 1996, occupational and social impairment with reduced reliability and productivity. Critically, the Board’s decision is not predicated on the absence of evidence. Instead, the opinion is predicated on the evidence of record. Indeed, the above discussed evidence does not establish that the Veteran’s psychiatric disorder was productive of considerable impairment of social and industrial adaptability, from November 7, 1996, occupational and social impairment with reduced reliability and productivity. Accordingly, the Board finds that a rating in excess of 30 percent for schizophrenia prior to August 29, 2009, is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joshua R. Castillo, 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.