92 Decision Citation: BVA 92-11010 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 88-46 299 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for Parkinson's disease. 2. Entitlement to a compensable evaluation for synovitis of the left knee. 3. Entitlement to an increased evaluation for schizophrenia, currently rated 70 percent disabling. 4. Entitlement to a total disability rating based upon individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD F. H. Ayer, Counsel INTRODUCTION The veteran had active military service from March 1943 to February 1946. This matter came before the Board of Veterans' Appeals, hereinafter the Board, from a July 1987 rating determination of the New York, New York, Regional Office. The notice of disagreement was received in July 1987. The statement of the case was issued in September 1987. The substantive appeal was received in September 1987. Supplemental statements of the case were issued in April 1988 and June 1988. The appeal was received at the Board in August 1988 and docketed in September 1988. The claims file was then referred to the veteran's accredited representative, Disabled American Veterans, and that organization submitted additional written argument to the Board in November 1988. In a decision of the Board dated in February 1989, the case was remanded to the regional office for additional development. Supplemental statements of the case were issued in July 1990 and September 1990. The appeal was received and docketed at the Board in December 1990. The claims file was then referred to the veteran's accredited representative, Disabled American Veterans, and that organization submitted additional written argument to the Board in February 1991, April 1991, and July 1991. In a decision of the Board dated in August 1991, the case was remanded to the regional office for additional development. A supplemental statement of the case was issued in September 1991. The appeal was received and docketed at the Board in December 1991. The claims file was then referred to the veteran's accredited representative, Disabled American Veterans, and that organization submitted additional written argument to the Board in March 1992. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has Parkinson's disease which was caused by his service-connected schizophrenia or medication prescribed for the schizophrenia. The veteran further contends that increased evaluations are warranted for his left knee disability and schizophrenia because of increased symptomotology. The veteran also contends that he is unable to obtain or retain any form of substantially gainful employment due to his psychiatric disability. He says he was only able to retain employment in his brother's courier service because of their relationship but he was let go after the business was sold. He maintains he has not worked since that time and has no prospects for future employment. DECISION OF THE BOARD For the reasons and bases hereinafter set forth, it is the decision of the Board that the preponderance of the evidence is against the claims for service connection for Parkinson's disease and for a compensable evaluation for synovitis of the left knee. The preponderance of the evidence is against the claim for a schedular disability evaluation in excess of 70 percent for schizophrenia. However, the record supports the assignment of a total disability rating based upon individual unemployability prior to the enactment of 38 C.F.R. § 4.16(c) and a 100 percent schedular evaluation by operation of 38 C.F.R. § 4.16(c) thereafter. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claims has been obtained by the regional office. 2. Parkinson's disease is not shown in service or for many years thereafter. 3. Parkinson's disease was not caused by a service-connected disability or treatment prescribed for such a disability. 4. The veteran's left knee disability includes limitation of flexion to 120 degrees. 5. The veteran's schizophrenia is productive of not more than severe social and industrial impairment. 6. Service connection is in effect for synovitis of the left knee and schizophrenia. A noncompensable evaluation is in effect for the former and a 70 percent schedular evaluation for the latter. 7. The veteran has two years of college education and work experience with a courier service and as an accounting clerk, a salesman and a typist. 8. The veteran is unemployable due to service-connected disabilities. CONCLUSIONS OF LAW 1. Parkinson's disease was not incurred in or aggravated by the veteran's active military service, may not be presumed to have been incurred in service, and is not proximately due to or the result of a service-connected disease or injury. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(a) (1992); 38 C.F.R. §§ 3.307, 3.309, 3.310(a) (1991). 2. The criteria for a compensable evaluation for synovitis of the left knee are not met. 38 U.S.C. §§ 1155, 5107(a) (1992); 38 C.F.R. §§ 3.321(b)(1), 4.7 and Part 4, Codes 5257, 5260 (1991). 3. The criteria for a schedular disability evaluation in excess of 70 percent for schizophrenia are not met. 38 U.S.C. §§ 1155, 5107(a) (1992); 38 C.F.R. Part 4, Code 9204 (1991). 4. The criteria for a total disability rating based upon individual unemployability before March 1, 1989, are met. 38 U.S.C. §§ 1155, 5107(a) (1989); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (1989). 5. The criteria for a 100 percent schedular evaluation, pursuant to 38 C.F.R. § 4.16(c), for schizophrenia from March 1, 1989, are met. 38 U.S.C. §§ 1155, 5107(a) (1992); 38 C.F.R. §§ 4.16(c) and Part 4, Code 9204 (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are well-grounded within the meaning of 38 U.S.C. § 5107(a). That is, we find that he has presented claims which are plausible. We are also satisfied that all relevant facts have been properly developed and that no further assistance is required to comply with the duty to assist him mandated by 38 U.S.C. § 5107(a). I. Parkinson's Disease Service connection may be granted for disease or injury incurred in or aggravated by wartime service. 38 U.S.C. § 1110. Service connection may also be granted for Parkinson's disease when a veteran serves ninety (90) days or more during a period of war and that disease becomes manifest to a degree of 10 percent within one year from date of termination of such service. In such an instance, the disease is presumed to have been incurred in service even though there is no evidence of it during the period of service unless there is affirmative evidence to the contrary to rebut this presumption. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The veteran is seeking service connection for Parkinson's disease but he neither alleges it began in service or within one year following separation from service, nor is this shown. Rather, the veteran alleges that it was caused by his service-connected schizophrenia. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). There is no clinical evidence or other credible evidence of record which demonstrates that schizophrenia causes Parkinson's disease. Parkinson's disease is thought to be caused by degeneration of certain neurons in the brain that synthesize a neurotransmitter, called dopamine. J. Hole, Jr., Human Anatomy and Physiology, 280 (2nd ed. 1981). Parkinson's disease can be drug induced by high doses of neuroleptic drugs, such as Thorazine, Mellaril, Trilafon, Stelazine, Prolixin, Haldol, and Navane, which are often used to control schizophrenia, and by high doses of reserpine which is often used in the treatment of hypertension. 2 Cecil, Textbook of Medicine, 2094, 2144 (18th ed. 1988). The manifestations of the disease are usually reversible with decreased dosage or discontinuance of therapy. Id., 2144; Physicians' Desk Reference, 1319, 1978 (39th ed. 1985). The clinical records do not show that the veteran was ever given any of the aforementioned drug types. However, in February 1973, the veteran testified that he had previously been given Thorazine and, in 1985, a history of Thorazine use for two years right after service was reported. In September 1976, the veteran reported that he was then taking reserpine twice a day for hypertension. In November 1984, it was noted that the veteran had been off hypertensive medication for five years and that he had previously been on medication for six months. The veteran is service connected for schizophrenia but not for hypertension. Therefore, if Parkinson's disease was caused by reserpine, there is no basis to service connect it. Service connection could be granted for Parkinson's disease on a secondary basis if it were shown to have been caused by Thorazine prescribed for treatment of the veteran's schizophrenia. However, such a correlation is not shown. Thorazine was only used, if at all, right after separation from service. Parkinson's disease was first shown in 1984, approximately 35 years after the last reported use of Thorazine. Thus, it would be unreasonable to conclude that the use of Thorazine 35 years earlier in unreported dosages had any relationship with the veteran's development of Parkinson's disease. Furthermore, and perhaps more significantly, the veteran was evaluated in 1985 by a neurologist well versed on Parkinson's disease, Dr. Mayeux, who concluded that the veteran had idiopathic Parkinson's disease. This is a primary form of the disorder rather than a secondary form, the latter of which includes drug-induced cases. 2 Cecil, Textbook of Medicine, 2143 (18th ed. 1988). In addition, on examination by the VA in 1990, the examining physician opined that there was no etiologic relationship between the veteran's schizophrenia and his Parkinson's disease. Therefore, service connection is not warranted. II. Synovitis of the Left Knee Historically, the veteran sustained a left knee injury in service in 1943. At the time of separation in 1946, the knee was slightly symptomatic and characterized as synovitis. A 10 percent evaluation was later assigned. Since the veteran's separation from service, the knee has been relatively asymptomatic and, in 1962, his evaluation was reduced from 10 percent to noncompensable. Similar findings have been demonstrated since this time. Current clinical findings show no tenderness of the left knee, no effusion, and no ligament problems. Range of motion was from 0 to 120 degrees and X-rays revealed no abnormalities. The examiner characterized the veteran's knee problems in 1990 as insignificant. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. 38 C.F.R. Part 4, Code 5257. Limitation of flexion of either leg to 60 degrees warrants a noncompensable evaluation. A 10 percent evaluation requires that flexion be limited to 45 degrees. 38 C.F.R. Part 4, Code 5260. Current clinical findings show the only left knee impairment to be limitation of flexion of that knee to 120 degrees. This clearly does not meet the criteria for a 10 percent evaluation pursuant to Diagnostic Code 5260 and, absent any additional left knee pathology or symptoms, the Board is of the opinion that the demonstrated left knee disability is less than slight in degree. In fact, the disability of the left knee was felt to be insignificant by a Department of Veterans Affairs (VA) examiner in 1990. Therefore, we conclude that the preponderance of the evidence is against the veteran's claim for a higher disability rating. In this case, there is no question as to which evaluation should be assigned so 38 C.F.R. § 4.7 is inapplicable. It is also not demonstrated that the left knee requires frequent hospitalizations for treatment nor does it markedly interfere with employment capabilities. Accordingly, an extraschedular evaluation is not warranted. III. Increased Evaluation for Schizophrenia The veteran's schizophrenia is currently aassigned a 70 percent schedular evaluation on the basis that severe impairment of social and industrial adaptability is shown. 38 C.F.R. Part 4, Code 9204. The next higher schedular evaluation is 100 percent. To warrant a 100 percent schedular evaluation for schizophrenia, the evidence must show active psychotic manifestations of such extent, severity, depth, persistence, or bizarreness as to produce total social and industrial inadaptability. 38 C.F.R. Part 4, Code 9204. The veteran's psychiatric symptomotology is discussed in some detail below and primarily involves various phobias. However, the evidence does not demonstrate that the service-connected psychiatric symptomotology produces more than severe impairment. Total inadaptability is not shown. IV. Total Rating Based on Individual Unemployability The veteran's service-connected disabilities, synovitis of the left knee and schizophrenia, affect his left knee and mental stability. The nature of the veteran's left knee disability has been previously described and we will not further elaborate herein. Historically, with regard to the veteran's psychiatric disability, the records show he experienced severe anxiety and other symptoms during service in 1945 which dissipated by the time of his separation from service in 1946. After service, he was treated at a private facility beginning in 1947 due to fear and shakiness. It was then reported that the inservice symptoms had progressed. He had obsessive ruminant activity that bordered on the bizarre. Treatment continued through 1953. In 1953, the veteran was hospitalized and the diagnosis was schizophrenic reaction, acute, severe, manifested by feelings of purity, superhuman feelings, psychomotor hyperactivity and paranoid ideation. The veteran was again hospitalized beginning in 1962. On VA examination in 1962, he had marked tension and increased psychomotor activity, was very circumstantial, preoccupied and compulsive, and had an obsessive fear of immobility, fainting, crowds and subways. He continued in a day hospital program through December 1963. On VA examination in February 1964, his schizophrenia was felt to be in partial remission. Similar findings were made in 1967. He was hospitalized again in 1972 due to increased anxiety related to his inability to perform adequately on his job due to his numerous phobias. Following VA examination in 1973, his evaluation was increased from 30 percent to 50 percent. In a 1987 decision the Board specifically held that manifestations of the schizophrenia included sleep disturbance, phobias and panic attacks. An increase to 70 percent was granted on the basis that severe impairment was present. The Board also notes that the veteran has two years of college education and work experience with a courier service and as an accounting clerk, a salesman and a typist. In this regard, the Board notes that the veteran's last employment with the courier service was more or less gratuitous and based upon a familial relationship with the owner. The law provides that, before a total disability rating based upon individual unemployability may be granted, it must be shown that the veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to his level of education, special training and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. With respect to the laws and regulations pertaining to the VA, neither the United States Code nor the Code of Federal Regulations offers a definition for "substantially gainful employment" or "substantially gainful occupation." The VA adjudication manual, M21-1, Section 50.55(8) defines "substantially gainful employment" as "that which is ordinarily followed by the nondisabled to earn a livelihood with earnings common to the particular occupation in the community where the veteran resides." The United States Court of Veterans Appeals, hereinafter the Court, in Moore v. Derwinski, U.S. Vet. App. No. 90-133 (July 10, 1991), and Ferraro v. Derwinski, U.S. Vet. App. No. 90-444 (June 24, 1991), noted that, since the foregoing terms were ill defined by the laws and regulations pertaining to the VA, much could be learned from the decisions of the United States Circuit Courts of Appeals which had considered the question of whether a Social Security disability claimant was able to engage in "substantial gainful activity." The Court, in Moore, noted in particular the following standard announced by the 8th Circuit in Timmerman v. Weinburger, 510 F. 2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total "basket case" before the Courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The thrust is whether a particular job is realistically within the physical and mental capabilities of the claimant. We find this standard to be particularly helpful in this case in interpreting the aforementioned laws and regulations. The evidence in this case shows that the veteran's psychiatric disability, particularly his multiple phobias and severe anxiety, seriously compromise his ability to perform tasks requiring interrelationships with others, to operate in the normal workday world, and to get himself from his home to his work place. He is tearful, timid, and has tremors of the hands, an intense affect, circumstantiality, and tangentiality, as well as panic attacks, anxiety, and numerous phobic reactions. The latter include fears of crowds, public transportation, subways, tunnels, and the marketplace in general. Furthermore, his ability to deal adequately with these phobias is significantly compromised. Although the criteria for a 100 percent schedular rating are not met, the Board concludes that, given the symptomatology demonstrated, it is most unlikely that the veteran would be able to perform any form of substantially gainful occupation. Accordingly, we find that a total disability rating based upon individual unemployability is warranted. The Board also recognizes that 38 C.F.R. § 4.16(c) became effective March 1, 1989, and has direct applicability to this case. Therefore, in view of our decision above, the provisions of 38 C.F.R. § 4.16(c) mandate that a 100 percent schedular evaluation be assigned effective March 1, 1989. ORDER Service connection for Parkinson's disease and a compensable evaluation for synovitis of the left knee are denied. An increased schedular evaluation for schizophrenia is denied. However, a total disability rating based upon individual unemployability prior to March 1, 1989, and a 100 percent schedular evaluation pursuant to 38 C.F.R. § 4.16(c) from March 1, 1989, are granted subject to the law and regulations governing the payment of monetary benefits. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 M. SABULSKY HARRY M. McALLISTER, M.D. J. U. JOHNSON NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.