92 Decision Citation: BVA 92-25528 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 89-14 323 ) DATE ) ) ) THE ISSUES 1. Entitlement to restoration of a 100 percent schedular rating for paranoid schizophrenia. 2. Entitlement to a total rating based on 38 C.F.R. 4.16(c). ATTORNEY FOR THE BOARD M. S. Raubertas, Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from rating decisions of the St. Petersburg, Florida, Regional Office (hereinafter the RO). The veteran had active military service from March 1977 to January 1978. By rating action in December 1988, the veteran's rating for paranoid schizophrenia, which had been evaluated as 100 percent disabling from January 1, 1980, was reduced to 70 percent disabling from April 1, 1989. The veteran submitted a notice of disagreement in January 1989. A statement of the case was issued in March 1989. A substantive appeal was received in May 1989. The Board remanded this case for additional development of the medical evidence in July 1989. The veteran received a Department of Veterans Affairs (VA) psychiatric examination, and a supplemental rating action confirming the prior rating of 70 percent was issued in November 1989. A supplemental statement of the case was issued in December 1989. Additional medical evidence was received from private physicians and a supplemental rating action confirming the prior rating of 70 percent was issued in July 1991. A supplemental statement of the case was also issued in July 1991. The case was received and docketed at the Board in November 1991. The Board again remanded the case in January 1992 for additional development of the medical evidence as well as due process considerations. The requested development was accomplished and the veteran's 70 percent disability evaluation was confirmed by rating action in April 1992. Entitlement to a total disability rating based on 38 C.F.R. 4.16(c) was also denied. A supplemental statement of the case was issued to the veteran in April 1992. The case was received and docketed at the Board in July 1992. It is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that the RO committed error in reducing his total disability evaluation to 70 percent disabling. In essence, he maintains that his psychiatric disorder has not improved and he remains totally disabled. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that a preponderance of the evidence is against the claim for an increased schedular evaluation for paranoid schizophrenia and for a total rating based on 38 C.F.R. 4.16(c). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. The veteran's psychiatric disorder is manifested by pathology inclusive of a blunted affect, fantastic ideas, and some impairment of judgment and insight. 3. The veteran is oriented with good reasoning and no ideas of reference, hallucinations, or paranoia. 4. More than severe impairment of social and industrial adaptability due to service-connected paranoid schizophrenia has not been shown and there has been sustained and material improvement in the veteran's symptoms. 5. The veteran's only compensable service-connected disability is a mental disorder assigned a 70 percent evaluation and such mental disorder does not preclude the veteran from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The schedular criteria for a rating in excess of 70 percent for paranoid schizophrenia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.343, 3.344, and Part 4, including Code 9203 (1991). 2. A total rating based on 38 C.F.R. § 4.16(c) is not warranted. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 4.16(c) (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS We note that we have found that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, we find that he has presented a claim which is plausible. 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 mandated by 38 U.S.C.A. § 5107(a) (West 1991). The veteran's service medical records show that he was hospitalized after six months of active duty in September 1977. On a mental status examination on admission he showed extreme disorganization with much use of scientific terminology, inappropriate mood and affect, and a belligerent and uncooperative attitude. He had a disheveled appearance and spoke rapidly in a monotone voice with slurred speech. His affect was flat and he had confused and illogical thinking with marked looseness of association and ambivalence. His thought content was bizarre and there was a definite grandiose quality to his thinking. Memory and calculation ability was impaired. Abstract abilities were impoverished and concrete. Judgment and insight were assessed to be poor. Psychological testing was consistent with serious psychological problems and unconventional thought processes including delusions, hallucination, poor concentration and grandiosity, and paranoid mentation. He improved with medication. The final diagnosis was schizophrenia, paranoid type, acute, severe, manifested by persecutory and grandiose delusions, pressured speech, loose associations, flat affect and religious preoccupation. He was considered to have severe impairment of social and industrial adaptability. The veteran was afforded a disability discharge because of severe paranoid schizophrenia. The veteran was hospitalized in a VA medical facility in January and February 1978. Treatment was ineffective because the veteran refused to recognize the need for it. The diagnosis was paranoid schizophrenia. A rating action in September 1978 awarded service connection for paranoid schizophrenia and assigned a 70 percent disability evaluation effective from January 21, 1978. A VA psychiatric examination in December 1979 noted that the veteran had auditory hallucinations. He was disheveled in appearance and had a noticeably flat affect. He was, however, cooperative and his speech was coherent and relevant without delusional thinking. He was well oriented and his memory was intact. Although he had good judgment, he had no insight. It was noted that the veteran had worked only irregularly since discharge from service. Based on this evaluation, a rating action in January 1980 assigned a 100 percent disability evaluation for the veteran's paranoid schizophrenia, effective from January 1, 1980. The veteran was hospitalized for paranoid schizophrenia in VA medical facilities in July 1981, August 1981 and September 1981. He was next examined by the VA in May 1982. At that time his paranoid schizophrenia was in remission. He reported that he was relatively asymptomatic as long as he took his medication. He indicated that he still had occasional auditory hallucinations. His affect showed some anxiety and was extremely flattened. Delusional thinking was noted. A VA examination in May 1984 showed the veteran's psychiatric difficulties to be in remission. It was indicated that the veteran cut grass for miscellaneous income. He was oriented, alert, and his sensorium was clear. There was no impairment of memory or evidence of a thought disorder. There was no paranoid ideation and his speech and communication were good. Based on this examination, a rating action in June 1984 reduced the veteran's 100 percent disability evaluation for schizophrenia to 70 percent disabling, effective from September 1, 1984. Additional evidence was submitted by the veteran, including statements from M. B. Mann, M.D., dated in July 1984 and E. C. Miller, M.D., dated in January 1985. These statements essentially indicated that the veteran remained regressed, and even while in remission he was continuing to experience auditory hallucinations and delusional ideas. It was noted that the veteran had only occasional employment and was considered incapable of sustained vocational effort. A VA examination for compensation purposes conducted in July 1985 shows that the veteran had a flat affect and no insight. Nevertheless, he did not have hallucinations or delusions as long as he maintained his medication. He was well oriented and his memory and judgment were intact. He was considered to be severely disabled both socially and industrially. Based on this evidence, the rating action of August 1985 reinstated the veteran's 100 percent disability evaluation for paranoid schizophrenia, effective January 1, 1980. By rating action in December 1988, the veteran's disability evaluation for schizophrenia, paranoid type, was reduced to 70 percent disabling, effective from April 1, 1989. Diagnostic Code 9203 of the VA's Schedule for Rating Disabilities provides that a 100 percent disability evaluation will be assigned for undifferentiated schizophrenia where active psychotic manifestations of such extent, severity, depth, persistence or bizarreness are present so as to produce total social and industrial inadaptability. A 70 percent evaluation is warranted with lesser symptomatology such as to produce severe impairment of social and industrial adaptability. 38 C.F.R. Part 4, Code 9203. The applicable regulations provide that a total disability rating, when warranted by the severity of the condition, will not be reduced, in the absence of clear error, without an examination showing material improvement in the mental condition. Consideration must be given as to whether any improvement was attained while working or actively seeking work. 38 C.F.R. § 3.343(a). The Court of Veterans Appeals has held in Karnas v. Derwinski, 1 Vet.App. 308 (1991) that the relevant period during which material improvement must be shown is from the date of the last examination on which the 100 percent disability evaluation was sustained. In the present case, the VA examination of December 1986 showed that the veteran continued to complain of hallucinations. He had delusional ideas of reference to the effect that music on television was about him. His only activity was watching television and he lived with and was cared for by his sister. Mental status examination revealed a disheveled man with poor personal hygiene. His affect was quite flattened. There was no insight. Otherwise, he was cooperative and his speech was coherent and relevant. He was well oriented and his memory was intact and judgment good. It was noted that the veteran's paranoid schizophrenia had been stabilized for many years and had not required rehospitalization, but was quite regressed and severely incapacitating, both socially and industrially. Based on this examination, a rating action of January 1987 continued the 100 percent disability evaluation for paranoid schizophrenia. The veteran was again examined by the VA in November 1988. At that time, the veteran stated that he spent his time walking, reading, and doing work in the neighborhood. He denied delusions or hallucinations. He was oriented, alert, and there were no signs of paranoia. His judgment and insight were fair and his speech and communication were considered good. In the examiner's opinion, the veteran was capable of working full time and if he continued to take his medication as prescribed, his symptoms would probably be controlled. At the time of the examination, he appeared well compensated. The diagnosis was paranoid schizophrenia by history, competent. It was based on this examination that the rating action of December 1988 reduced the veteran's disability evaluation for paranoid schizophrenia to 70 percent disabling. Evidence received since the December 1988 rating action includes a VA examination in October 1989. The veteran related an "unbelievable" tale in which he stated his problems began in 1976 when he was monitoring radiation caused by extraterrestrial spacecraft. On mental status examination the veteran was alert, pleasant, and anxious to justify his story. He was fluent and his vocabulary reflected a high level of information and intelligence. Aside from the fantastic ideas that he reported there was no looseness of association. His reasoning was well ordered and there were no ideas of reference or persecution. He did feel, however, as if he were a fugitive because of the information he was privy to. His affect was somewhat blunted. His mood was appropriate and his reasoning and calculation were good. Judgment and insight were questionable, but he was able to handle hypothetical problems relating to daily living fairly well. Social and vocational impairment was considered to be not terribly impaired. The diagnosis was delusional (grandiose) psychotic disorder. He was considered competent. Also received were statements from E. Miller, M.D., dated in April 1990 and June 1991 and from M. Mann, M.D., dated in July 1990. Although current dates had been affixed to the statements, the contents were identical with those received in January 1985 and July 1984 from Dr. Miller and Dr. Mann, respectively. Thus, the information in the statements did not refer to the veteran's current psychiatric condition. Also of record is a VA hospitalization discharge summary dated in May 1991 showing that the veteran had referred himself to a drug rehabilitation program at the hospital. The veteran did not, however, appear to be truly motivated to enter into recovery and he was found to have obtained cocaine while at the facility. He received an irregular discharge. The diagnoses were observation for schizophrenia and cocaine dependence. While the record taken as a whole certainly shows that the veteran has a significant psychiatric disorder, his current manifestations do not cause more than severe social and industrial impairment. In this regard, we note that the veteran was apparently well compensated on the November 1988 VA examination. He appeared to be essentially asymptomatic while taking his medication as prescribed. The VA examination of October 1989 did note delusional thinking. His affect was blunted and his judgment and insight were considered questionable. Nevertheless, there was no looseness of associations and his reasoning was well ordered. He did not have hallucinations or paranoia. His social and industrial impairment was not considered to be greatly impaired. Finally, while the veteran was rehospitalized in May 1991, the discharge summary shows that this was a voluntary referral for drug treatment. Inasmuch as more than severe social and industrial impairment has not been shown, the schedular criteria for a rating in excess of 70 percent have not been met. 38 C.F.R. Part 4, Code 9203. We also find that material improvement under the ordinary conditions of life has been shown as required by 38 C.F.R. § 3.343. Specifically, the VA examination of December 1986, which is the last examination on which the RO continued the 100 percent disability evaluation, showed that the veteran had hallucinations and delusions. His affect was flattened and his personal hygiene was poor. He had little insight. He was considered to be severely incapacitated both socially and industrially. By contrast, the VA examination of November 1988 on which the RO reduced the veteran's disability evaluation to 70 percent indicated that the veteran was essentially asymptomatic. Thus, there was no evidence of delusions, hallucinations, or paranoia. His judgment and insight were fair and his speech and communication were good. He was considered to be capable of working full time. While the veteran certainly continued to have an underlying psychiatric disorder, it was well controlled with medication. In addition, we note that the examiner considered the veteran capable of working full time and it was noted that he had been working in the neighborhood. Thus, we conclude that material improvement under the ordinary conditions of life had been shown. 38 C.F.R. § 3.343. Similarly, we find that a review of all of the evidence of record clearly shows that sustained improvement has been demonstrated. Pertinent examinations are found to have been "full and complete." 38 C.F.R. § 3.344. 38 C.F.R. § 4.16(c) provides that the schedular rating should be increased to 100 percent disabling where the veteran's only service-connected disability is a psychiatric disorder rated 70 percent disabling and the disorder precludes him from securing or following substantially gainful employment. See Swan v. Derwinski, 1 Vet.App. 20 (1990); Akles v. Derwinski, 1 Vet.App. 118 (1991). In the present case, the veteran's only compensable service-connected disability is a psychiatric disorder evaluated as 70 percent. In evaluating whether the veteran's psychiatric disorder precludes substantially gainful employment we note that the VA Adjudication Manual M21-1, para. 50.55(8) defines substantially gainful employ- ment as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to their particular occupation in the community where the veteran resides." This suggests a living wage. Ferraro v. Derwinski, 1 Vet.App. 316 (1991). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore v. Derwinski, 1 Vet.App. 83 (1991). Initially, we note that the veteran reported on a VA Form 21-8940, received in March 1982, that he had not worked full time since 1977. Nevertheless, as previously indicated, the VA examiner in November 1988 indicated that the veteran was capable of working full time. At that time the veteran was apparently doing work in his neighborhood. We also note that a different VA examiner indicated in October 1989 that the veteran was "not terribly impaired" socially and vocationally. During a period of hospitalization at a VA facility in May 1991, the veteran was noted to be currently employed in an unskilled field. He has recently indicated that he completed a 7th grade education. During the May 1991 hospitalization, he was treated primarily for cocaine dependence, was found to be not truly motivated towards "recovery", was discovered to be in possession of cocaine during his hospital course, and was discharged irregularly after 10 inpatient days. The veteran's cocaine dependence, we would submit, obscures symptomatology offered as supportive of a finding that the veteran is unable to work, or experiences total social and industrial inadaptability, by reason of his psychiatric pathology. While the veteran may not be engaged in substantially gainful employment, the medical evidence in its entirety indicates that he is capable of doing so. Accordingly, we find that a total rating based on 38 C.F.R. § 4.16(c) is not warranted. ORDER Restoration of a 100 percent schedular rating for paranoid schizophrenia is denied. A total evaluation for paranoid schizophrenia based on 38 C.F.R. § 4.16(c) is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 JEFF MARTIN IRVIN H. PEISER, M.D. E. W. SEERY NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), 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.