Citation Nr: 21025827 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-06 867 DATE: April 29, 2021 ORDER Entitlement to a rating in excess of 70 percent for the period from July 1, 2015 to July 23, 2019 for chronic paranoid schizophrenia with cocaine, cannabis, and alcohol abuse is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s schizophrenia manifested with occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. For the entire appeal period, the Veteran’s service-connected schizophrenia precluded the Veteran from obtaining substantial gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for the period from July 1, 2015 to July 23, 2019 for chronic paranoid schizophrenia with cocaine, cannabis, and alcohol abuse have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9201 (2019). 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from August 1989 to May 1991. In September 2020, the Veteran died. His mother, the appellant, has been named as a substitute claimant in the current appeal. This matter was before the Board in September 2018 and June 2020 in which the Board remanded the matter for further development. As remand directives have been substantially complied with, the Board will proceed with adjudication of the claims. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a rating in excess of 70 percent for the period from July 1, 2015 to July 23, 2019 for chronic paranoid schizophrenia with cocaine, cannabis, and alcohol abuse. Disability ratings 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 the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran’s schizophrenia has been assigned a 70 percent rating for the period on appeal and evaluated under Diagnostic Code 9201 which uses the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9201. Under the General Formula for Mental Disorders (General Formula), 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). 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 inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9201. The maximum schedular rating of 100 percent is warranted when 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; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9201. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment; but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126 (b). The Board has reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). After reviewing the evidence of record, the Board finds a rating greater than 70 percent is not warranted. A higher rating would require the Veteran to exhibit total social and occupational impairment; however, the evidence does not support this finding. A review of the evidence shows that the Veteran was admitted to a substance abuse treatment program in May 2015 to June 2015. Upon being discharged, the Veteran began mental health outpatient treatment with individual psychotherapy and medication management. In a July 2015 VA mental health outpatient visit, the Veteran reported being tremulous and requested his earlier dose of benztropine. He reported sometimes hearing voices calling his name and he admitted to being paranoid. The examiner noted the Veteran did not appear irritable, anxious, distressed, helpless, hopeless, or depressed. His affect appeared normal and appropriate with good spontaneity and some sense of humor. The Veteran’s thinking was superficial, but he was focused and organized. Insight and judgment were noted as fair, and no thought disorder was appreciated. Subsequently in July 2015, the Veteran was evaluated for a transitional program where he reported that he wanted to stay sober so he can go back to work. He reported a history of auditory hallucinations, indicating the last time he heard voices was last month. He indicated the voices are not derogatory in nature and that he usually hears voices calling his name. The Veteran denied current or past suicidal/homicidal ideation. Upon examining the Veteran, the examiner noted his hygiene and grooming appeared to be good, and eye contact was good. The Veteran described his mood as good and denied any current depression or anxiety, and he had no current thoughts of self-harm or to others. He was noted as pleasant and cooperative; thinking was logical and goal-directed; insight was partial, and judgment was noted as fair. The Veteran was admitted into the program and began group therapy from July 2015 to November 2015. A November 2015 vocational rehabilitation note shows the Veteran found employment as a dishwasher at Strong Hospital. A February 2016 vocational rehabilitation note shows that he was still employed on a part-time basis and was working 20 hours per week. In a May 2016 mental health visit, the Veteran reported that he was doing well at that time. The examiner noted that although the Veteran reported being in recovery since May 2015, it was evident that he relapsed and was currently drinking to excess. In a November 2016 mental health visit, the Veteran reported no deterioration in his mental health. He admitted that he occasionally hears voices, but he did not want medication adjustments. He also reported drinking “a couple” of drinks each day and declined a referral for treatment. He reported working at a local restaurant on a half time basis, but that he did not want to work more than this because he had a roommate to help pay his bills. The examiner noted the Veteran seems to be functioning fairly well at this time. In a February 2017 mental health visit, the examiner noted he expected to see the Veteran six months later; however, the Veteran came in earlier and asked the examiner to include a note in his records supporting his increased rating claim. He reported that he continues to work about 20 hours each week at a local restaurant and admitted to drinking seven days each week and smoking one pack of cigarettes a day. The examiner noted the Veteran showed minimal interest in dealing with either issue, but he appeared to be functioning well in terms of mental health. During his May 2018 mental health visit, the examiner noted that the Veteran has remained on his usual medications and continues to use nicotine and he was drinking daily. He further noted the Veteran declined treatment and no longer embraced sobriety as a goal. Nevertheless, the examiner noted the Veteran was functioning at baseline. The examiner continued to note the same in the Veteran’s subsequent October 2018 and April 2019 mental health visits. Additionally, the Veteran reported continued satisfaction with his current medications and that he has cut down on alcohol to three drinks twice a week. Based on the above and remaining evidence, the Board finds a higher rating is not warranted. As noted above, the examiner consistently noted the Veteran was functioning well in terms of mental health, even after the Veteran relapsed and began drinking. In addition, his mental status examinations consistently showed his affect appeared normal and appropriate; he did not appear irritable, anxious, distressed, helpless, hopeless, or depressed; and he was focused and organized. Although the Veteran reported hallucinations and paranoia, these were not persistent as he reported that these occurred occasionally. Moreover, his hallucinations and paranoia did not render him totally impaired socially and occupationally as the Veteran continued to work part time. The Board further notes that while the Veteran reported having suicidal ideation in his July 2019 mental disorders examination, VA treatment records show otherwise as he consistently denied suicidal ideation, and he was found to be a low risk for suicide in November 2016 and November 2017 suicide risk assessments. Additionally, he received negative suicide screens in October 2018 and April 2019. Therefore, as the Veteran’s schizophrenia did not result in total social and occupational impairment, a 100 percent rating is denied. 1. Entitlement to a TDIU. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58 (2019) the Court clarified that substantially gainful employment contains economic and noneconomic components. The Court provided guidance as to the meaning of a veteran’s ability to “secure and follow” such employment, noting that attention must be given to: the veteran’s occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Id. at 73. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). For the entire appeal period, the Veteran has been service-connected for schizophrenia at 70 percent disability. Thus, the Veteran met the schedular criteria for a TDIU. A review of the evidence shows that the Veteran consistently reported working as a part-time dishwasher for the entire appeal period. This was noted in VA treatment records and in his July 2020 VA Form 21-8940, application for TDIU. Additionally, in his July 2019 mental disorders examination he reported working as a dishwasher until he developed carpal tunnel and could no longer work. The Board notes, however, that in his July 2019 examination he also reported that that he would occasionally call in due to depression and emphasized that there are times when he feels paranoid and does not go as a result. He also stated that he is often depressed and knows he will never get better from schizophrenia. In his September 2015 mental disorders examination, the examiner found that the Veteran’s psychiatric symptoms cause occupational and social impairment due to mild symptoms; however, the examiner noted symptoms likely to cause significant impairment such as depressed mood, suspiciousness, flattened affect, impaired abstract thinking, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and inability to establish and maintain effective relationships. These same symptoms were reiterated in his July 2019 mental disorders examination, and the evidence also shows reports of occasional hallucinations and paranoia. As a result, it was determined that the Veteran’s psychiatric symptoms caused occupational and social impairment with deficiencies in most areas. Further, VA treatment records include a letter written in October 2015 from the Veteran’s psychiatrist to a social service agency in which the psychiatrist noted that the Veteran would only be suitable for low level employment. The Board also notes a May 2015 VA treatment record where the Veteran reported that he completed one year of college. Similarly, in his TDIU application, he reported having one year of college and no additional education or training. He further reported his earnings per month were $1200.00 and that he made $10K in the past 12 months. Notably, the Veteran’s ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Although the Veteran worked part-time throughout the entire appeal period, the Board finds his employment was marginal, at best. The Board also finds the symptoms associated with his schizophrenia would have likely caused severe occupational and social impairment. As a result, the Board finds the preponderance of evidence favors the claim. Accordingly, entitlement to TDIU is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, 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.