BVA9405232 DOCKET NO. 89-26 495 ) DATE ) ) ) THE ISSUE 1. Entitlement to a total schedular rating for schizophrenia, paranoid type, currently evaluated as 70 percent disabling. 2. Entitlement to a total disability rating based upon individual unemployability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Sandra L. Smith, Associate Counsel INTRODUCTION The veteran had active service from May 1970 to February 1972. This matter came before the Board on appeal from an April 1989 rating determination of the Montgomery, Alabama, Regional Office. The notice of disagreement was received in May 1989. The statement of the case was issued in June 1989. The substantive appeal was received in July 1989. The case was remanded by the Board in March 1990 and again in June 1991. Following the completion of the requested development, the supplemental statement of the case was issued in September 1991. In a June 1992 decision, the Board granted a 70 percent evaluation for the veteran's disability and remanded the case for additional development as to the issue of total disability for compensation based on individual unemployability under 38 C.F.R. § 4.16. Following the completion of the requested development, the RO continued the 70 percent evaluation for schizophrenia, paranoid type and denied the claim for a total rating based upon individual unemployability in a rating decision dated in May 1993. A supplemental statement of the case was issued in June 1993. The case was returned and docketed at the Board in November 1993. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his symptoms are of such severity as to entitle him to a total disability rating for schizophrenia, paranoid type. He further contends that he is not employable because his disability and the effect of the medications consumed daily make it unfeasible to pursue employment. Furthermore, both the VA's own counseling psychologist and the Social Security Administration have determined that the veteran is unemployable. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). The Board has determined that only those items listed in the "Certified List" attached to this decision and incorporated by reference herein are relevant evidence in the consideration of the veteran's claim. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence warrants a 100 percent schedular disability evaluation for schizophrenia; thus, the issue of a total disability rating based upon individual unemployability is moot. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's schizophrenia, paranoid type, is manifested principally by paranoid delusions, hearing voices, insomnia, poor insight and bad judgment. Severe impairment of social and industrial adaptability is shown. 3. The veteran has a high school education and work experience as a factory laborer, orderly, and correction officer. He has not worked since 1977 and has been drawing Social Security disability compensation for several years. 4. The veteran's service-connected disability has resulted in severe social and industrial impairment. He is on a heavy medication program. His condition makes it dangerous for the veteran to work around vehicles, machinery or firearms. He can not drive. He is hospitalized 1 to 3 times a year and has frequent regular appointments at a VA medical center. 5. The veteran is unemployable due to his service-connected disability. CONCLUSION OF LAW The criteria for an evaluation of 100 percent for schizophrenia, paranoid type, are met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.7, 4.10, 4.16(c), 4.19, 4.129, 4.130, 4.132, Code 9203 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). 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 and that no further assistance is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). Historically, the veteran was diagnosed to have manic-depressive psychosis of manic type while in service. Following a VA psychiatric examination in 1975, which found mild to moderate social and industrial impairment, service connection was established for schizophrenic reaction which was rated as 10 percent disabling. The veteran was afforded another VA examination in April 1978. It was noted that he was preoccupied with one thought -- he believed that he was "the pimp for the world." He complained of auditory hallucinations and was described as paranoidal. In December 1978 the veteran was granted a 50 percent disability rating for paranoid schizophrenia by a decision of the Board. In November 1981 the veteran was examined by the Social Security Administration (SSA) for purposes of determining eligibility for disability compensation. Copies of psychiatric evaluation reports, dated in November 1981, show that the veteran was observed to have definite paranoid delusions. He admitted to occasionally hearing voices. His ability to synthesize and answer questions was adequate. It was noted that he had very poor insight to his condition and poor motivation. One examiner's impression was paranoid schizophrenia with continuing difficulty maintaining any type of job, secondary to his mental illness. That examiner suspected that the veteran would have increasing difficulty with this. Another psychiatric examiner noted that the veteran's interpersonal relationships appeared to be extremely poor and that his perception of the external world and reality were extremely poor. He also appeared to be drifting downward in social status. The Social Security records also contain a psychiatric evaluation report, dated in January 1980, which found that the veteran displayed no evidence of any hallucinations or delusions although he reported some vague feeling at times of being the pimp of the world. The impression was passive aggressive personality. The examiner felt the veteran at times exaggerated the degree of his symptoms and that he could work if properly motivated. Based upon a field investigation and an October 1983 VA psychiatric examination, the veteran's disability rating was reduced to 30 percent in 1983. This reduction was upheld by a decision of the Board in April 1984. The veteran was afforded another VA examination in December 1985. The examination report noted that the veteran continued to report he was the "pimp of the whole world." He also complained of auditory delusions. It was estimated that the social and industrial inadaptability was moderately severe to severe. The diagnosis was paranoid schizophrenia. Subsequently, the veteran's disability rating was increased to 50 percent by a decision of the Board in March 1987. VA medical records show that the veteran was hospitalized in October 1989 for psychotic symptoms but progressed steadily when placed on medication and given therapy. In March 1990, outpatient treatment records revealed the veteran continued to hear voices and his adjustment was considered to be only fair. In July 1990 the veteran was subjected to a VA psychiatric examination. The examination report noted a blunted affect and slow monotonous voice. The veteran was guarded and evasive during the examination, but admitted to auditory hallucinations, reporting that he heard angels singing and a voice talking to him. He denied suicidal or homicidal ideations. His associations were loose. His insight and judgment were intact. He had paranoid delusions in which he thought people were plotting or talking about him. The examiner considered that the industrial and social impairment was moderate to severe. The veteran was hospitalized in a VA hospital in January 1991 for his psychiatric disorder. His complaints included auditory hallucinations and paranoid delusions. With medication adjustment, his condition improved and on discharge, he was stable. He was to be followed at the mental hygiene clinic. The veteran was hospitalized again at a VA facility from May to July 1991. At admission he admitted to not taking any medication. The veteran reported auditory hallucinations and expressed paranoid ideation. Following adjustment of his medications, and attendance in group therapy, he indicated that his hallucination had decreased. His affect improved. A letter from the veteran, dated in November 1991, states that the veteran lived with his mother who cooked and cleaned for him. His mother also helped the veteran shop for groceries and clothing. He indicated that he continued to have paranoid delusions, hear command voices in his head, and to believe that he is "the pimp of the world." In March 1991 the veteran was evaluated by a VA rehabilitation counselor. The narrative report shows that he attended college for 10.5 months. From 1972 to 1974 he attempted to work as a laborer in a factory, but left due to sickness. He then worked as an orderly in 1974 and 1975 and again was released because of sickness. In 1975 he worked as a correction officer and was released in 1977 due to sickness. The veteran had not worked since 1977 and had been drawing Social Security disability compensation for several years. The examiner noted that the veteran appeared to be on heavy medication. His wife indicated that he continued to hear voices and "move away" from people. The veteran did not drive. During the day he watched TV and listened to music. He visited his parents, sister and children for short periods of time. He appeared to have little patience and to be somewhat restless. The examiner found that the veteran had a serious employment handicap and that achievement of a vocational goal was not reasonably feasible. The veteran was again hospitalized at a VA hospital from February 1992 to March 1992 with complaints of depression and nervousness. On admission the veteran appeared somewhat disorganized in thinking, delusional and actively hallucinating. He was continued on antipsychotic medications and given supportive therapies. He showed gradual alleviation of his symptoms and became more appropriate in his behavior. The diagnosis was schizophrenia, schizo-affective type. The prognosis at discharge was guarded. Disability evaluations are based upon objective findings of impairment as shown by recent medical evidence. The paranoid schizophrenia is currently rated as 70 percent disabling. This evaluation contemplates severe impairment of social and industrial adaptability. In order to be entitled to the next higher evaluation, the evidence must demonstrate active manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.132, Code 9203. The law also provides that, in cases in which the only compensable service-connected disability is a mental disorder assigned a 70 percent evaluation, and such mental disorder precludes a veteran from securing or following a substantially gainful occupation; then, in such cases, the mental disorder shall be assigned a 100 percent schedular evaluation under the appropriate diagnostic code rather than a total disability rating based upon individual unemployability. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(c). 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 § 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." See also VA G.C. Prec. Op. 75-91 (VA Dec. 27, 1991). The United States Court of Veterans Appeals (the Court), in Moore v. Derwinski, 1 Vet.App. 359 (1991), and Ferraro v. Derwinski, 1 Vet.App. 326 (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 in Timmerman v. Weinberger, 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. Moore, 1 Vet.App. at 358-59. 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 symptoms as well as the effects of the strong medication necessary to partially control these symptoms severely compromise the veteran's ability to perform tasks of even a manual nature. Indeed, it appears highly unlikely that the veteran would be able to perform work he has done in the past such as working in a factory, or duties associated with working as a correctional officer. Two of the least taxing classes of work are light work and sedentary work. Although neither light work nor sedentary work is defined for VA benefits purposes, regulations applicable to the Social Security Administration do define them and we find these definitions to be helpful. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even if the weightlifting may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. 20 C.F.R. § 404.1567(b) (1993). Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 404.1567(a)(1993). The Board finds, based on the evidence of record that the veteran's schizophrenia would not seem to warrant a schedular award in excess of 70 percent disabling. His symptoms have been classified as moderate to severe, and there have been recent repeated psychotic exacerbations without periods of long remission inbetween. On the basis of this evidence the disability picture more nearly approximates severe impairment of social and industrial adaptability than the criteria for a 100 percent disability rating. We note that the veteran is fully oriented, exhibits no impaired cognition, and generally relates in an appropriate manner despite the presence of active psychotic symptoms. However, the Board further finds that, given the symptomatology demonstrated from the veteran's disability, it is most unlikely that the veteran would be able to obtain and maintain employment. Given the severity of symptoms and the degree of medication required, combined with his education and work experience, the Board finds that he is unemployable. Therefore, under the provisions of 38 C.F.R. § 4.16(c) a 100 percent schedular rating is warranted. Consequently the veteran's claim for an increased evaluation for his service- connected schizophrenia, paranoid type, should be granted. As the veteran has been granted a 100 percent schedular rating, the issue of entitlement to a total disability rating based upon individual unemployability is now moot and the claim should be dismissed. ORDER A 100 percent schedular evaluation for schizophrenia, paranoid type, is granted, subject to the laws and regulations governing the payment of monetary benefits. The claim for a total disability evaluation based on individual unemployability is dismissed. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * F. H. AYER (MEMBER TEMPORARILY ABSENT) HOLLY E. MOEHLMANN (CONTINUED ON NEXT PAGE) *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) 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. 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.