92 Decision Citation: BVA 92-13871 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-48 428 ) DATE ) ) ) THE ISSUE Entitlement to earlier effective dates for an award of service connection for schizophrenia, undifferentiated type, prior to August 21, 1985, and for an award of a 100 percent disability evaluation therefor, prior to August 8, 1989. REPRESENTATION Appellant represented by: Public Advocate for Veterans Affairs, Puerto Rico WITNESSES AT HEARING ON APPEAL Veteran's father and spouse. ATTORNEY FOR THE BOARD R. K. ErkenBrack, Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision in November 1988 of the Department of Veterans Affairs (VA) San Juan, Puerto Rico, Regional Office, (RO). The veteran served on active duty from December 1984 to July 16, 1985. The notice of disagreement was received in September 1989, in the form of a claim that he had been unemployable due to his nervous condition since separation from service in July 1985. A hearing was held before the hearing officer at the RO in March 1991; the veteran was not present but his father and wife testifed on his behalf. By rating decision later in March 1991, a 100 percent disability evaluation was assigned for the disability effective from August 8, 1989, the date of VA hospital admission for treatment of the disability. The notice of disagreement with this effective date was received in June 1991. The statement of the case was issued in August 1991, but did not address the issue as to an earlier effective date for the grant of service connection prior to August 21, 1985, which had been assigned by the decision in November 1988. The substantive appeal was received later in August 1991. The veteran has been represented throughout his appeal by the Public Advocate for Veterans Affairs, Puerto Rico, which presented a statement on the appeal at the RO in October 1991. The appeal was received at the Board in November 1991, and the case is now ready for appellate review. The Board has assumed jurisdiction over the issue of an earlier effective date for the award of service-connection for the disability prior to August 21, 1985, because we find that an allowance with respect thereto is clearly in order. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in substance, that service connection for schizophrenia should have been effective since July 1985, with an assignment of a 100 percent disability evaluation effective from that time. He states, in the alternative, that a 100 percent disability evaluation should be effective at least from February 1986, when a 70 percent disability evaluation was granted. He reports hospitalization on various occasions for schizophrenia in support of his claim. He maintains that his service-connected condition has been of such extent and severity as to produce a total impairment of social and industrial adaptability from its onset. He states that the symptoms and diagnosis of his psychiatric disorder have been almost the same since February 1986, up to the present time. He emphasizes that he has been unable to engage in or sustain any gainful employment since his discharge from service in July 1985. DECISION OF BOARD For the reasons and bases hereinafter set forth, it is the decision of the Board that service connection for schizophrenia, undifferentiated type, should be retroactive to the day following the veteran's separation from service, July 17, 1985, and it should be rated retroactively as 100 percent disabling from that date. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. In July 1985, the veteran filed a claim for service connection of a nervous disorder. 3. VA psychiatric examination in August 1985 diagnosed a schizophreniform disorder, held incompentency to handle VA benefits and disclosed mutism, delusional thinking auditory hallucinations, neurovegetative signs of anxiety, disorientation and psychomotor retardation. 4. In April 1986, the originating agency erroneously denied service connection for a schizophreniform disorder on the basis that a chronic compensable psychosis had not been diagnosed during the one year postservice presumptive period. 5. Pursuant to a July 1986 reopened claim, service connection was granted for schizophrenia, undifferentiated type, from August 21, 1985, rated at 70 percent, by the RO in a rating decision in November 1988. 6. The veteran's claim for a total compensation rating based on individual unemployability was received on September 5, 1989. 7. By RO decision in March 1991, schizophrenia, undifferentiated type, was rated 100 percent from August 8, 1989. 8. The complete clinical evidence shows, in all probability, that schizophrenia, undifferentiated type, was present from the time the veteran was separated from service and that it should have been rated as 100 percent disabling from that time primarily because it has precluded the veteran from being able to secure and follow substantially gainful employment. CONCLUSION OF LAW The requirements for earlier effective dates of July 17, 1985, for the award of service connection and for the award of a 100 percent disability evaluation for schizophrenia are met. 38 U.S.C.A. §§ 1131, 1155, 5107(a), 5110 (1991); 38 C.F.R. §§ 3.303(b), 3.400(b)(2)(ii)(o)(1)(2), Part 4, §§ 4.125, 4.126, 4.130, 4.132, Diagnostic Code 9204 (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The legal and factual issues presented on the record are: 1. Whether chronic schizophrenia was manifested on and after July 17, 1985, in order to support the award of service connection back to that date? 2. Whether schizophrenia was shown to be totally disabling; that is, productive of the veteran's inability to obtain and retain substantially gainful employment, on and after July 17, 1985? We find that 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 plausible claims. We are also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). The service medical records show that the veteran had difficulty speaking English and recounted recurring headaches beginning in 1985. In May 1985, he passed out and was taken for medical treatment by ambulance. Bystanders stated that he was sitting on his bunk with complaints of head pain and pressure when he became very disorderly, hitting and kicking walls. A past history of emotional distress was indicated. He had been seen in a mental hygiene clinic three times. When the ambulance arrived he was lying on the ground hitting the ground with his fists and tossing and turning on the ground. He was very upset and holding his head. He did not speak much English but an interpreter indicated that he had a past history of head pain for a week, off and on, and also was combative and uncommunicative and in emotional distress. He was put in restraints and and transported lying supine in an ambulance to the hospital. He was able to walk with assistance to the emergency room. He apparently had been trying to survive in his unit and had become depressed, complained of a constant severe headache, and had been found by his unit bashing his head against the wall, yelling and screaming, and pounding on the wall. He stated that he had to go home to his family to have his headache cured because no one in the Army knew how to cure headaches. He admitted to being lonely and homesick and feeling abandoned. He was treated in intensive milieu therapy assisted by a Spanish speaking person and he was evaluated and found to be unfit to remain in the service. Plans were made for his discharge. He was delighted at this prospect and his headache disappeared and he was discharged to his unit pending his discharge. Adjustment disorder with depression, dependent personality disorder and headache from tension were diagnosed. It also was noted that he had passive behavior and an anxious mood or affect. On a report of psychiatric evaluation in May 1985 he reportedly was unable to cope with the stress of military life because of the presence of a personality disorder which had led to his inability to function as a soldier. The veteran was seen by VA on August 21, 1985, for a referral diagnosis of nervousness. No C-folder or clinical records were available for review. He did not know whether he was married or not. He did not recall his military dates. He knew he was not in combat. He could not tell whether he was hospitalized, psychiatrically or not, while in the military. No record of VA hospitalization and no record of any psychiatric treatment was indicated. There was no prior evaluation in the records. He did not go out alone, did not drive, did not cook and did not go to church. He handled money very incompetently, apparently, according to his father; his hygiene was poor and so was his self-care. He usually needed prompting, and just sat around the house, sharing very little with his family and nothing with strangers. He had a moderately severe anxiety tension syndrome. He had verbal aggressiveness. He communicated very little. His concentration was diminished. There were episodes of confusion. There were occasional crying episodes with depression. He was afraid at night. He heard voices that called him and invited him to fight. He was irritable and suffered from insomnia and memory disturbances. He had related poorly to people and was usually retarded in his actions. He thought that people wished him badly and talked badly about him. He was essentially suspicious and withdrawn. He complained of constant frontal and nuchal headaches, which sometimes made him faint and vomit. He claimed that he sometimes saw double. He was mixed up and gave erratic answers. He looked sickly. His attire was disheveled. He acted very coldly. He usually kept silent, stating that his head hurt, and communicated very little. He showed poor reality awareness. His speech was slow and hesitant, with poor intonation and no speech defects. He was impulsive, anxious to a moderately severe degree, confused, disoriented, perplexed, preoccupied and poorly organized. There were poor eye contact without scanning and moderately severe neurovegetative signs of anxiety. He appeared stressed and coped poorly with the interview. He was withdrawn, slow and detached. He had psychomotor retardation. Communication was slow with an evident thought disorder manifested by some mutism, inappropriateness, vagueness and poverty of thought. There were somatic preoccupation, poorly organized delusional thinking and auditory hallucinations; the suicidal risk was possibly mild to moderate. Affect was restricted and blunted. There was poor control of rage. The predominant mood was irritability with depression. Self-esteem was low. He was very distractible. He was disoriented in the three spheres. His memory was poor at all levels. Attention was poor. Concentration was poor. Calculation was poor. Information also was poor. The factor of intelligence was poor. There was a great deal of concretistic thinking, poor judgment and no insight. Schizophreniform disorder was diagnosed. His social and industrial adjustment over the previous year had been grossly impaired. He was not competent to handle VA benefits. The VA neurologic examination in September 1985 showed that the veteran had a history of having had no major disease and that he had done fairly well until around six months before, when episodic headaches started. These were described as preceded by blurring of vision and a sensation of things turning around. This was followed by tactile pain over the frontal area, which later on generalized, becoming progressively severe, at times unbearable. He referred that he was desperate when it was too severe. His headaches were accompanied by general malaise, occasionally by nausea and vomiting, and were not alleviated by bed rest or common analgesics. Headaches occurred on a daily basis; he had headaches almost constantly. He stated that he had been hospitalized for headaches during active service but did not remember what tests were done. He complained that when pain was severe he lost his mind, started screaming, heard voices and had neck pain. The pertinent clinical impression was shown as vascular headaches with a tensional component. In May 1986, D. L. Coira, M.D., a psychiatrist, interviewed the veteran. He had treated the veteran since August 1985. The veteran complained that, since separation, he was isolated at home with severe headaches, hearing voices calling him and ordering him to fight, thinking that somebody persecuted him, becoming aggressive with relatives and verbalizing self-destructive tendencies. He had been referred in August 1985 to the San Juan VA Hospital, with the impression of "acute schizophrenic episode." His facial expression was sad and suspicious. He was anxious, tense and apprehensive. He was partially oriented at the time. He had low self-esteem with feelings of hopelessness and worthlessness, multiple somatizations, low frustration tolerance, poor control of his aggressive impulses, ideas of reference, persecutory delusion, auditory hallucinations and suicidal and homicidal ideations. His capacity for comprehension, calculation and learning was poor. His mood was depressed. Affect was blunted. Judgment was poor. Insight was poor. Memory was poor for all events. Intellect was handicapped. Schizophrenia, paranoid type, was diagnosed. The prognosis was guarded. It was stated that he should continue intensive psychiatric treatment in order to prevent further deterioration of his mental health. VA results of psychological tests were received in September 1986. They indicated that the veteran had poor insight capacity. His attitude toward life was full of negativism. He had a distrustful attitude. Deep-seated feelings of rejection were felt by him. He had strong difficulty in establishing positive interpersonal contacts. He harbored strong resentment and hostility toward people in general, but he was also prone to get depressed frequently. He had a tendency to withdraw from social participation and his behavior was of a rather schizoid nature. Strong insecurity feelings were evident and he was quite unstable, emotionally. Affect was shallow. His defenses were primitive and had proven to be ineffective. He lacked the coping skills to deal effectively with his problems. Hospitalization for observation and evaluation to clarify the diagnostic picture was recommended. On a VA examination in October 1986, the veteran came accompanied by his father. Neither the C-folder nor clinical records were on hand. He was not working. He reportedly had been hospitalized in Kentucky for psychiatric reasons and also for his headaches. The veteran was living with his father so that somebody could take care of him. He did not go out alone. He did not drive, occasionally went to church accompanied by his father, handled money poorly, had poor hygiene, had poor self-care, and usually needed prompting. He slept most of the time or otherwise he was walking around or sometimes he took off and disappeared and then he had to be searched for. He shared poorly with his family and did not share with strangers. He complained of poor relations with people. There also was psychomotor retardation. He had paranoid delusional thinking. He was highly suspicious and withdrawn. He had many anxiety dreams about the devil persecuting him. He also had many neurovegetative signs of anxiety. He had a severe anxiety tension syndrome. He denied the use of alcohol or drugs. He became physically and verbally aggressive and had diminished appetite and concentration. He talked to himself. There were occasional crying episodes in a lamenting type of way. He felt depressed and had difficulty controlling guilt, rage and fear. He became agitated. He felt guilty about having "killed Chinese" (this had not been confirmed, and was probably delusional). He hallucinated that people were calling him to fight and also that they called him names. He was irritable and suffered from insomnia. He stated that he saw the devil, who was looking to kill him. There was some perplexity and he needed prompting. He looked sickly. His attire was dirty and unkempt. He acted impatiently and coldly. There was fair to poor reality awareness. His speech was slow and hesitant with poor intonation and no speech defects. He was rather impulsive, extremely anxious, a little confused, disoriented, perplexed, preoccupied and poorly organized. There was poor eye contact without scanning. He lost control easily and appeared stressed by the interview. He coped poorly with the interview. He was withdrawn, slow and detached. There was diminished psychomotor activity. There were no tremors or dyskinetic phenomena. Communication was slow with marked thought disorder as manifested by some mutism, inappropriate flow, private logic, vagueness, blocking and poverty of thought. He expressed somatic preoccupation, poorly organized delusional thinking, possibly visual and certainly auditory hallucinations, anxiety dreams, self-deprecatory ideas and moderate risk of suicidal acting-out. Affect was blunted and questionably congruent. He had possibly delusional guilt feelings and poor control fear of rage. Mood was irritable, with depression. Self-esteem was low. Suicidal risk was moderate. Cognitively, he was distractible and disoriented in the three spheres. Memory was poor at all levels. Attention was poor. Concentration was poor. Calculation was poor and information was poor. Affective intelligence was grossly poor. There were marked concretistic thinking, poor judgment and no insight. The diagnosis was major affective disorder, depression, with psychosis, chronic, active. He was grossly impaired as manifested by gross impairment at all standard parameters. He was not competent to handle VA benefits. On a VA outpatient clinical report of March 1987, the veteran was shown to be unspontaneous and uncooperative and illogical at times. Content of thought centered around auditory hallucinations. He was suspicious, with persecutory ideas. An acute exacerbation of schizophrenia, paranoid type, was to be ruled out. Hospital admission was highly recommended but the veteran refused and his father also refused and signed against medical advice. The father was advised of his son's condition and the need of psychiatric treatment and the importance of a psychiatric hospitalization to evaluate and treat him because he was psychotic and it was necessary to prevent self-damage and/or damage to others. Even when all of this was communicated to the father, he refused to have his son admitted and offered that he would have a new appointment to his private psychiatrist. The records of psychiatric history were not on hand. Dr. Coira's updated reports on the veteran's psychiatric condition dated in August and October 1987 showed that it had not changed since the report of May 1986. On a VA examination in February 1988, the veteran was examined by a board of two VA examiners. The history reportedly showed that the veteran had been unable to work, to operate, and was at home talking incoherently, apparently hallucinating, crying, very hostile, aggressive, etc., since he returned home from active duty. He looked rather disheveled, very suspicious, and was very angry. He was considered in very poor contact with reality. The veteran was hallucinating. He was all the time coaxing his father to take him out and go back home. There was no way to establish rapport or a coherent communication with the veteran. The board opined that he was completely psychotic. It was recommended that he should be hospitalized for evaluation and treatment. It was the impression of the board that the veteran would not accept any hospitalization and the board also had the feeling that the father would not accept hospitalization because of his tendency to protect his son. It was the opinion of the board that the veteran was psychotic, probably a thought disorder, schizophrenic, and that a social service field survey should be performed before reaching a final diagnosis. The board unanimously disagreed (emphasis added) with the diagnosis of personality disorder, given for the reason of separation from service, because there was no evidence in the record to confirm such a diagnosis, mainly in a person who evidently did not speak the English language. The board had reviewed the two prior VA examinations of August 1985 and October 1986 in reaching its conclusions. A VA social and industrial field survey report in April 1988 showed that the veteran's father, wife and two neighbors were interviewed. The veteran refused to be interviewed. He requested that his father be present in the interview and commented that if he were left alone in the office he would kill someone. Also, he commented that he did not want to go to jail. The veteran's father advised that he was the only person that the veteran would obey. He described the veteran as a person who saw all things his way. He had difficulties with his wife and she had considered leaving him. He was verbally and physically aggressive toward her and their son. He had suicidal tendencies. His father felt that he had to keep all knives and ropes away from him. Suicidal attempts were not confirmed. He had been involved in several fistfights with some youths in the neighborhood and had gone out of the house to walk just in underwear, and had had insomnia. He spent the day doing nothing. The neighbors considered him to be an unstable person. He was not logical in his conversation and he jumped from one subject to another. The veteran had been observed driving his car. The veteran refused to give information. VA psychological testing in June 1988 resulted in diagnostic impressions of a histrionic personality disorder with schizophrenia, paranoid type, to be ruled out. The veteran was at a VA hospital for observation and evaluation in June and July 1988. He was unemployed. He was unshaven and suspicious. He avoided eye contact. He had persecutory delusions and appeared to be responding to auditory hallucinations. Insight and judgment were poor. He did not cooperate. His speech was incoherent and irrelevant. Affect was blunted and inappropriate. Complete mental status could not evaluated because of his psychiatric disability. He seemed psychotic with tension headaches and no focal deficit. The psychological assessment was schizophrenia, chronic, paranoid type and a histrionic personality. He could handle funds. Dr. Coira, the veteran's treating psychiatrist, reported in August 1989 that he was extremely aggressive at home with his wife and threatened that he would kill her and himself and was hearing voices calling him. Schizophrenia, paranoid type, was diagnosed. He was referred for a possible hospitalization at VA facilities, and he was admitted there on August 8, 1989, the later determined effective date for the 100 percent rating for the service-connected schizophrenia, chronic undifferentiated type. Dr. Coira indicated in November 1990 that the veteran complained since arriving home after separation of isolation, severe headaches, hearing voices calling and ordering him to fight, persecutory thoughts, aggression toward relatives, and self-destructive tendencies. He forgot everything, could not concentrate, suffered frequent crying spells, and had threatened to set his house on fire. A transcript (T.) of the personal hearing held in this case at the RO in March 1991 shows testimony from the veteran's father that he had not able to perform any appreciable work since service. T. at 4. His condition had worsened since separation. T. at 5. He had thought people were talking about him and would become hysterical and want to fight them. T. at 6. He came out of the Army with the condition he has. T. at 7. The veteran's wife stated that he started to beat her after separation. T. at 10. The complete clinical evidence supports the probability that headaches during service with adverse psychiatric symptoms constituted the original manifestations of the veteran's service-connected psychosis. The record dated subsequent to service shows that he was continually incapacitated from the disability from the time he was discharged from active duty. The psychotic disorder was diagnosed based on concurrent psychiatric findings by VA on August 21, 1985, little more than a month following separation. The history of the findings presented on that examination and first identified during service establish a sound factual basis for the conclusion that the psychotic disorder was actively present and overtly disabling from the time the veteran was separated from service. On review of the complete evidence, the VA psychiatric board of examiners in February 1988 held that the inservice diagnosis of a personality disorder given as the reason to separate the veteran was unfounded, and the findings were on the order of a psychosis at that time. It is clear on the evidentiary record that the veteran was suffering from the social and industrial effects of the chronic psychotic disorder from the date of separation and they were so severe that he has been unable to work since that time. With but few and brief periods of remission, active psychotic manifestations have included almost a complete divorce from reality with hallucinations, delusions, and lack of insight as well as judgment. Hence, the same reasons for assigning the total rating that prevailed on August 8, 1989, are shown to have been present and essentially unrelenting since his separation from service. We would make the point that the rating decision in November 1988 granting service connection for the psychotic disorder effective August 21, 1985, rated at 70 percent disabling, never became final. For all practical purposes, the veteran's notice of disagreement with that decision was received with his claim for a total rating for the disorder back to July 17, 1985, received in September 1989. That initiated this appeal. In other words, the claim up to now has remained open with respect to the earliest assignable effective date both for the award of service connection and for the award of a 100 percent disability evaluation for schizophrenia, undifferentitated type. An allowance of an earlier effective date for both the award of service connection and a total disability rating for schizophrenia, undifferentiated type, back to July 17, 1985, is warranted under the applicable laws and regulations. 38 U.S.C.A. §§ 1131, 1155, 5107(a), 5110; 38 C.F.R. §§ 3.303(b), 3.400(b)(2)(ii)(o)(1)(2), Part 4, §§ 4.125, 4.126, 4.130, 4.132, Diagnostic Code 9204. ORDER An earlier effective date of July 17, 1985, both for the award of service connection for schizophrenia, undifferentiated type, and for the award of a 100 percent disability evaluation therefor is granted, subject to the governing regulations applicable to the payment of monetary benefits. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * (MEMBER TEMPORARILY ABSENT) M. WOLOWITZ SAMUEL W. WARNER (CONTINUED ON NEXT PAGE) *38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member.