Citation Nr: 0814989 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 95-28 949A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an effective date earlier than May 22, 1992 for the assignment of a 100 percent disability evaluation for schizophrenia, chronic, paranoid type. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. Rose, Counsel INTRODUCTION The veteran had active military service from August 1968 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) from a September 1994 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted a 100 percent evaluation under 38 C.F.R. § 4.16(c) for schizophrenia effective May 22, 1992. The veteran disagreed with the assigned effective date and subsequently perfected this appeal. In January 2000, the Board denied entitlement to an earlier effective date for the 100 percent evaluation for schizophrenia. The veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). By Order dated in January 2001, the Court vacated the Board's decision and remanded for readjudication. In September 2001, the Board again denied entitlement to an earlier effective date for the 100 percent evaluation and the veteran appealed this decision to the Court. By Order dated in August 2002, the Court vacated the Board's decision and remanded for readjudication. In June 2003, the Board again denied entitlement to an earlier effective date for the 100 percent evaluation. The veteran subsequently appealed this decision to the Court. In May 2004, the parties filed a Joint Motion to Remand. By Order dated May 14, 2004, the Court vacated the Board's decision and remanded the matter for compliance with the instructions in the Joint Motion. Pursuant to the Joint Motion, the parties agreed that the report of the veteran's March 22, 1988 VA examination, which indicated that the veteran was impaired in both his interpersonal relationships and the ability to be gainfully employed, constituted an informal claim for TDIU and that remand is necessary for the Board to adjudicate this pending claim. The parties to the Joint Motion also agreed that at the time of the March 1988 VA examination, the veteran did not meet the schedular requirements for TDIU. Nevertheless, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra- schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards as set forth in paragraph (a). 38 C.F.R. § 4.16(b) (2007). Finally, the parties to the Joint Motion agreed that the Board erred by failing to remand the veteran's claim for referral to the Director of the Compensation and Pension Service and that the Board must remand the pending claim for TDIU to the AMC for extraschedular condition since the Board may not assign an extraschedular rating in the first instance. The Joint Motion further indicates that if the Director determines that the veteran is not entitled to TDIU pursuant to § 4.16(b) in the first instance then the AMC should issue a supplemental statement of the case (SSOC). In September 2004, the Board remanded this claim pursuant to the instructions from the Joint Motion of May 2004. Development has been completed and the claim is again before the Board. The veteran submitted a written statement in December 2007, subsequent to the most recent supplemental statement of the case. His statement indicated that he had no interest in having a Board hearing, and he also submitted documents previously submitted and considered by the RO. This claim is ready for adjudication on the merits. FINDINGS OF FACT 1. On May 22, 1992, the RO received a statement from the veteran that was construed as a claim for entitlement to an increased evaluation for schizophrenia, paranoid type. 2. An informal claim for TDIU was received on March 22, 1988. A rating in excess of 10 percent for schizophrenia was denied in a rating decision of June 17, 1988. This decision is final. 3. It was not factually ascertainable prior to May 22, 1992 that the veteran's service-connected schizophrenia caused more than mild social and industrial impairment or that the veteran was entitled to a TDIU. An increase in the veteran's schizophrenia to 100 percent was factually ascertainable as of the May 1993 VA examination. 4. The veteran's service-connected disability was not of such a nature and severity to warrant an extraschedular rating and was not such as to prevent him from securing or following a substantially gainful occupation prior to May 22, 1992. CONCLUSION OF LAW An effective date earlier than May 22, 1992, for the assignment of a rating greater than 10 percent for schizophrenia, chronic, paranoid type, is not warranted. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. § 3.400 (2007); 38 C.F.R. §§ 4.16, 4.132, Diagnostic Code 9203 (effective prior to November 7, 1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2006), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. In the present case, the veteran's claim was received prior to the enactment of the VCAA. His claim was substantiated in September 1994 when he was granted a 100 percent evaluation for service-connected schizophrenia, paranoid type, and assigned an effective date of May 22, 1992. The veteran expressed disagreement with the effective date of the grant and was issued a statement of the case (SOC) in that regard in July 1995. He appealed the decision in August 1995. Thus his appeal was perfected prior to the requirement to provide the notice as directed by the VCAA. Following the September 2004 Board remand, the RO issued VCAA notice in June 2006. The letter specifically addressed the evidence necessary to establish an earlier effective date. He was advised of the evidence necessary to establish entitlement to an earlier effective date for his TDIU rating. The veteran responded to the letter in written statements received in April 2007. The RO issued a supplemental statement of the case (SSOC) in October 2007, which included the legal criteria considered in deciding earlier effective date claims. The veteran has not alleged that he has been prejudiced by the lack of notice of how to establish an earlier effective date in his case. Further, he also has been represented before the Court, to include the most recent Joint Motion and Court order from May 2004. The veteran has presented argument for why he is entitled to an earlier effective date. Accordingly, the Board finds that VA has satisfied its duty to notify and to assist and that under the circumstances of this case, a remand would serve no useful purpose. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Factual Background Private treatment records from Metropolitan State Hospital show that the veteran was admitted for treatment on July 27, 1971 after he was found wandering the streets, entering into other people's houses, and behaving in a very bizarre manner. The diagnostic impression was schizophrenia, chronic undifferentiated type (with catatonic features), and the degree of impairment was moderate to severe. On discharge in August 1971 it was noted that his condition was mildly improved and his prognosis was poor. On VA psychiatric examination in April 1972 it was noted that the veteran's chief complaints were "none." It was noted that he evidently had an acute paranoid schizophrenic-like episode and there were not any manifestations now. The conclusion was that there was no psychiatric disorder. Service connection for schizophrenia, chronic, undifferentiated type was originally granted in May 1972 and a 10 percent evaluation was assigned, pursuant to Diagnostic Code 9204, effective from July 27, 1971, and a noncompensable evaluation was assigned effective April 25, 1972. Treatment records from the Long Beach VAMC dated from approximately December 1979 to June 1981 show that the veteran was seen on several occasions for stress, headaches, anxiousness, nervousness, as well as somatic complaints, including chest pain. In December 1980 it was noted that he had significant somatic symptoms possibly related to anxiety. It was noted that there was some paranoid ideation. In January 1981 the impression was marked paranoid syndrome. Treatment records from the Long Beach VAMC show that in September 1987 the veteran requested to speak to a psychiatrist and requested medication for stress and anxiety. He denied depressive symptomatology. He reported he heard voices in the past, but had not heard them for awhile. He denied suicidal or homicidal ideations. His mood was slightly suspicious with a full appropriate affect. He claimed people were threatening him. There was no evidence of psychosis and the impression was paranoid disorder by history. The veteran was evaluated by another division and it was noted that he exhibited a marked lack of assertiveness that appeared to promote anxiety. The impression was adjustment disorder with anxious mood. In October 1987 he reported an improvement of anxiety symptoms. In December 1987 he reported a stable sleep pattern and noted that resuming his medication decreased delusions of being under surveillance. On VA examination in March 1988, the veteran was very vague about his employment history, revealing he had volunteered for a short time. He reported he worked for his grandparents in their small grocery store, but expressed great difficulty in handling the job. On mental status examination, he was alert and oriented in all spheres, and his speech was of normal rate and tone. He admitted to auditory hallucinations but reported he was in fairly good control of the voices. The examiner noted significant paranoia with a fixed delusional system centering around government agencies. Diagnoses included schizophrenia, paranoid type, chronic. His highest level of adaptive functioning in the past year was "poor" and it was noted that he had no friends and had not been able to keep a job. He continued to have persecutory delusions, auditory hallucinations, loose association, and flat affect despite the use of psychotropic medications. It was noted that he was impaired in his interpersonal relationships and the ability to be gainfully employed. In June 1988, the RO granted a 10 percent rating for the veteran's schizophrenia, chronic, undifferentiated type, effective from September 30, 1987. By letter dated in July 1988, the veteran was advised of the June 1988 rating decision and his appellate rights thereto. The veteran did not appeal this decision. Received from the veteran on May 22, 1992 was a Statement in Support of Claim (VA Form 21-4138), in which he requested an increased rating for his "psychosis." He reported that he had been unable to gain and retain employment since discharge but that he was employed by his grandparents, which consisted of caring for them in exchange for wages. He reported that he was being treated at the Long Beach VAMC. Additional treatment records from Long Beach VAMC showed that the veteran was seen periodically between 1988 and 1992 for medication follow-up for his schizophrenia. In September 1989 he reported stable symptoms, appeared reliable, and was cooperative, but his affect was blunted. In April 1990 the veteran denied any increase in his delusions and reported that he was living at home. In September 1990 he reported delusional material involving Communists and surveillance. In December 1990 it was noted that the veteran's family remained supportive, and that he was off neuroleptics without any increase in his present illness. In September 1991 the veteran reported that he felt well and worked in a grocery store and sometimes worked with plumbing. In November 1991 he reported feelings that he was "under surveillance." In October 1992 it was noted that he had delusions, and his affect was blunted in discussing "surveillance." On VA examination in May 1993 the veteran reported that he had never had a job other than working for his grandparents in their small grocery store. He reported that his grandfather was 90 years old and he was afraid that after his grandfather died he would go crazy if he had not convinced VA that he was under surveillance. He reported that he ran errands for his grandparents, who owned a small grocery store, and that he was paid a salary so he would have some spending money. He reported that since he visited the FBI office while on active duty, the FBI had followed him ever since. He has delusions, hallucinations, loose associations, and no interpersonal relationships in spite of medications and psychotherapy. The mental status examination was difficult because of the veteran's suspiciousness. He was normal appearing, his speech was normal, his attitude was matter-of-fact, and his mood was somewhat cautious for fear that he might say the wrong thing and be punished. He appeared appropriate except for the stories of being followed. He admitted to hearing voices, and he had no idea where they came from. He had some circumstantiality and some tangential thinking, but at the same time he denied having any serious problems with mental illness. It was noted that on the one hand he made an effort to appear as well as possible and yet was "quite clearly having a thought disorder." The diagnostic impression was schizophrenia, paranoid type, chronic. It was noted that his GAF was "at best" 50, and would dip down to 45 at times when he was really psychotic. The VA examiner noted that it was doubtful that the veteran had been above 50 in the past year. The veteran appeared competent for VA purposes, but was certainly severely disabled for his ability to be gainfully employed or to maintain any kind of interpersonal relationships outside of the grandparents and an occasional shopper in the store that knows him. In March 1994, the RO assigned a 70 percent disability evaluation for the service-connected schizophrenia, now characterized as paranoid type, effective from May 22, 1992. In September 1994, a 100 percent evaluation was assigned, effective May 22, 1992, for the service-connected schizophrenia, paranoid type, based upon the application of 38 C.F.R. § 4.16(c) (effective prior to November 7, 1996). Received from the veteran's representative on June 1, 2001 was a packet of documents, in support of the veteran's claim, along with a waiver of initial review by the RO. These documents included a copy of VA's Motion to Remand and to Stay Proceedings and letters from the veteran to the Board in which the veteran explained that one reason he may not have received the "September 1987 rating decision" was that he recently did not receive prescriptions from the Long Beach VAMC through the mail and was told by the U.S. Postal Service that his medications could be in the dead mail box. He contended that the notification of the 1987 rating decision could be in the dead mailbox. Also, the veteran provided a chronological order of events to support his contentions that his schizophrenia dated back to service and that he had been unemployable since service due to his schizophrenia and paranoia. Received from the veteran's representative on June 25, 2001 was a packet of documents, in support of the veteran's claim, along with a waiver of initial review by the RO. These documents included a copy of a letter the veteran sent to the White House Military Office in September 2000 in which he requested assistance in obtaining military records and provided a chronological order of events from his period of service to when he was placed in a psychiatric hospital. In another document the veteran submitted another chronological order of events. In a 19-page document the veteran provided a narrative of what happened to him from the time he was born up until April 2000. Also submitted was a February 2000 letter from the U.S. Postal Service to the Long Beach VAMC, in which the U.S. Postal Service acknowledged that a letter sent from the Long Beach VAMC in October 1999 did not arrive to the veteran until January 2000 due to a keying error. Also submitted was a missing adult form, apparently used by the police, which indicates that an adult was missing as of February 3, 1987. An invoice dated in August 1987 showed that the veteran was being charged for paramedic service and basic life support provided on June 25, 1987. In a June 2000 letter the Orange County Health Care Agency notified the veteran that there were no mental health records for him. These documents also include a letter from the veteran's sister dated in April 2000, in which she reported that she is a physician licensed to practice medicine in California, and that she graduated from Harvard Medical School in 1977 with honors in medicine and surgery, and among her clinical rotations at Harvard were several months of inpatient and outpatient psychiatry. She reported that at the time of the veteran's discharge from service in October 1970, she was a pre-med Biology major at UCI, working in the UCI Medical Center outpatient psychiatric unit. She lived one block from her grandparent's house, which was where the veteran lived when he was discharged from service, and observed that he was a changed person after service, and had become antisocial and unwilling to leave the house except for short errands. She also observed that he had neither developed nor rekindled any friendships, he awakened after noon, and he talked in hushed tones excessively about the FBI, KGB, and CIA's surveillance of their daily lives. She reported that the veteran also explained how a radio would talk directly to him and how a radio and other appliances were set as surveillance devices in his living area. The veteran's sister further indicated that although the veteran chose to believe he was helping his grandparents in their neighborhood store, the reality was that he could not be depended upon to complete even the simplest tasks. She claimed that the veteran was not able to obtain or retain any true employment after he completed service. She further described his pattern of pathologic behavior, including isolation from the community and family, major paranoid thoughts, and eruptions of aggressive anger that continued, reaching a peak in July 1971 when he was hospitalized. She claimed that he had been unable to seek or hold any true employment since service, and that he was never truly employed by the grandparents, and that his rare helpfulness to the grandparents was without salary. The veteran's sister noted that as a medical doctor she had observed the severity of his chronic paranoid schizophrenia worsen incrementally and progressively year-by-year, with sporadic acute exacerbations. She indicated that it was evident to her, as a physician and in their relationship in a tight-knit family, that the veteran's paranoid schizophrenia was associated with his inability to obtain or retain employment, despite his college education and innate intelligence. In a January 2003 packet of documents submitted include duplicate copies of medical records. The veteran also submitted chronologies regarding his medical treatment and denial of psychiatric care. He contends that VA should consider December 6, 1979 for an earlier effective date. In a June 2005 statement, the RO responded to the Board's September 2004 request that the veteran receive consideration for an extra-schedular total disability evaluation prior to May 22, 1992. The report included a detail procedural and medical history of the claim. The Director noted that outpatient treatment records prior to May 22, 1992 indicate that he was never hospitalized, was always alert, oriented in all sphered, and appeared normal. While the records indicate that the veteran had anxiety, some episodic paranoid ideation, and had difficulties in his interpersonal relationships, he was not disabled to the point where he was unable to be gainfully employed. The Director denied entitlement to an extra-schedular total disability evaluation prior to May 22, 1992 based upon these findings. Analysis The veteran asserts that he is entitled to an effective date earlier than May 22, 1992 for the assignment of the 100 percent disability evaluation for the service-connected schizophrenia. He argues, in essence, that the 100 percent evaluation should have been assigned from the date he separated from service, and contends that since his separation from service he has not been gainfully employed. The general rule with respect to the effective date for an award of increased compensation is that the effective date of an award shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2002). An exception to that rule applies under circumstances where evidence demonstrates a factually ascertainable increase in disability during the 1-year period preceding the date of receipt of a claim for increased compensation. In that situation, the law provides that the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within 1 year from such date. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2007). In all other cases, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1) (2007). 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where the increase precedes the claim (provided also that the claim is received within one year after the increase) and are not applicable when a claim is filed and the increase in disability is subsequently ascertainable. See Harper v. Brown, 10 Vet. App. 125 (1997). The phrase "otherwise, date of receipt of claim" in 38 C.F.R. § 3.400(o)(2) provides the applicable effective date when a factually ascertainable increase occurred more than one year prior to receipt of the claim for increased compensation. Id. The VA Office of General Counsel (GC) explored the legislative history of 38 U.S.C.A. § 5110(b)(2) and noted that this provision was added in order to permit retroactive payment of increased compensation from the date of the increase in disability up to 1 year, when that date is ascertainable, and was intended by Congress to provide additional disability compensation up to 1 year retroactive to the date on which the event establishing entitlement to additional benefits occurred, i.e., the date on which the increase in disability occurred. With regard to the regulatory history of 38 C.F.R. § 3.400(o)(2), the GC noted that this section was added to permit payment of increased disability compensation retroactively to the date the evidence established the increase in the degree of disability had occurred, and that it was intended to be applied in those instances where the date of increased disablement could be factually ascertained with a degree of certainty, and was not intended to cover situations where there was no evidence of entitlement to an increased evaluation prior to the date of the claim. The GC concluded that, where a veteran submitted a claim alleging an increase in disability within 1 year prior to the VA's receipt of the claim and medical evidence subsequently substantiated the increase in disability, the effective date of the award of increased disability compensation was the date as of which it was ascertainable, based on all the evidence of record, that the increase occurred. See VAOPGCPREC 12-98 (September 23, 1998). Thus, in fixing an effective date for an award of increased compensation, VA must make two essential determinations. It must determine when a claim for increased compensation was received, and when a factually ascertainable increase in disability occurred. Receipt of Claim With respect to the first determination, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2007). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. 38 C.F.R. § 3.155(a) (2002). When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155(c) (2002). Once a formal claim for compensation has been allowed, receipt of one of the following will be accepted as an informal claim for increased benefits: 1) report of examination or hospitalization by VA or uniformed services; 2) evidence from a private physician or layman; and 3) examination reports, clinical records, and transcripts of records received from State and other institutions. 38 C.F.R. § 3.157 (2002). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for increased benefits and is requested to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196 (1992). The record shows that the RO previously allowed a formal claim for compensation for schizophrenia. The veteran filed a claim for an increased evaluation for schizophrenia in October 1987. In June 1988, the RO assigned a 10 percent evaluation effective September 30, 1987. By letter dated in July 1988, the veteran was notified of the June 1988 rating decision and his appellate rights thereto; however, he did not file a timely appeal. Thus, the June 1988 rating decision is final. See 38 U.S.C. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1987); currently 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002). Although the veteran has contended that he did not receive notice of the "September 1987" rating decision, it appears that this date is based on a typographical error on page 5 of the Board's January 2000 decision which reported that "[t]he veteran was notified of the September 1987 rating decision the following month, and he did not file a timely appeal." The record reflects that there was no rating decision dated in September 1987; the actual date of the rating decision in question is June 1988 (which assigned a 10 percent disability evaluation for the service-connected schizophrenia, chronic, undifferentiated type, effective September 30, 1987). In that regard, the Board notes that the July 1988 notification letter was mailed to an address in Orange, California that the veteran provided both prior to and after the June 1988 rating decision. The applicable regulation provides that "notice" means written notice sent to the veteran at his latest address of record. 38 C.F.R. § 3.1(q) (2007). Also, there is a presumption of administrative regularity that a government administrative agency has done what it regularly does in the administration of programs. Mailing of notification letters is one such matter. That presumption must be rebutted by evidence, not by mere allegation. Mindenhall v. Brown, 7 Vet. App. 271 (1994). In support of his contentions, the veteran submitted a letter from the U.S. Postal Service, which was sent to the Long Beach VAMC in February 2000, notifying them that the veteran did not receive a letter that was mailed by the Long Beach VAMC in October 1999, until January 2000, due to an error by the U.S. Postal Service. In the letter, the U.S. Postal Service explained that the letter was delayed due to a "keying error." The veteran essentially contends that a similar error could have been made with the notification letter regarding the "September 1987" (presumably the June 1988) rating decision. The veteran also indicated that mail was often misdelivered or not delivered at all in his neighborhood. There is no objective evidence that the June 1988 notification was not delivered in a timely fashion. The Board finds insufficient evidence to rebut the presumption of regularity. The Board notes that the June 1988 rating decision, which is final and binding, will be accepted as correct in the absence of clear and unmistakable error. 38 C.F.R. § 3.105(a) (2002). In this case, the veteran has not alleged specific error in any earlier rating action. From the rating decision of June 17, 1988 to May 21, 1992, there is no formal communication received in the record indicating an intent to apply for an increased evaluation for his service-connected schizophrenia. On May 22, 1992, the RO received correspondence from the veteran indicating an intent to apply for an increased evaluation for his service- connected schizophrenia. Consequently, VA must look at all the medical evidence and communications from the veteran subsequent to the rating decision of June 17, 1988 rating decision in order to determine if there is an informal claim for increased benefits. Here, , the Board finds that he did not under § 3.155 because no communication was filed after the rating decision of June 17, 1988 and prior to May 22, 1992 indicating the veteran's intent to apply for an increased rating for his service-connected schizophrenia. An informal claim must identify the benefit sought. See Brannon v. West, 12 Vet. App. 32, 34 (1998) (noting that VA is not required to anticipate a claim for a particular benefit where no intention to raise it was expressed and citing Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995) for the proposition that VA is not required to do a "prognostication" but to review issues reasonably raised by the substantive appeal). With regard to the VA medical records reflecting treatment for the veteran's schizophrenia following the rating decision of June 17, 1988 and prior to the claim for increase in May 22, 1992, as discussed below, these records do not show that it was factually ascertainable that an increase in disability had occurred. Thus, even if any of the treatment records could be construed as an informal claim, pursuant to 38 C.F.R. § 3.157, there was no basis for establishing an effective date earlier than May 22, 1992 for a higher rating. Issue of Unadjudicated Claim As noted in the introduction, the parties agreed in the May 2004 Joint Motion that the March 22, 1988 VA examination report, which indicated that the veteran was impaired in both his interpersonal relationships and the ability to be gainfully employed, constituted an informal claim for TDIU. Further, the parties agreed that the Board erred in failing to refer the claim to the Director of the Compensation and Pension Service for extrascheudlar consideration. The Court has held that a total rating based upon individual unemployability was merely an alternate way to obtain a total disability rating without being rated 100 percent disabled under VA's Schedule for Rating Disabilities. See Norris v. West, 12 Vet. App. 413, 420-421 (1999); see also Roberson v. Principi, 251 F.3d 1378 (2001). The Court further held that a claim for a total disability rating based on individual unemployability was reasonably raised when a claimant, whose schedular rating met the minimum criteria under 38 C.F.R. § 4.16(a), requested entitlement to an increased rating and when there was evidence of current service-connected unemployability in the claimant's claims file or in records under VA control. Norris, 12 Vet. App. at 421. The United States Court of Appeals for the Federal Circuit (Federal Circuit) held in Roberson that when a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, VA must consider a TDIU rating. Roberson, 251 F.3d at 1384. Applying the evidence of record to the law, the Board finds that while the March 22, 1988 VA examination may constitute an informal claim, the claim was denied in the June 17, 1988 rating decision, and is therefore not pending. In both Norris and Roberson there was a VA rating decision that addressed an issue of an increased rating. In both cases, the veteran alleged that those rating decisions failed to consider a reasonably raised claim of TDIU. In Norris, the Court noted that an increase for the veteran's service- connected anxiety disorder was denied in rating decisions of June 1987 and February 1989. The Court found that the evidence of record raised a claim for TDIU at the time of those rating decisions. The Court specifically rejected the appellant's argument that the RO's failure to adjudicate an informally raised TDIU claim constituted a final disallowance of the claim. The Court held that there was no final decision, as to the TDIU issue, that could be the subject of a CUE claim and said that the raised TDIU claim remained pending at the RO. See Norris, 12 Vet. App. at 423. The Federal Circuit held that the 1984 rating decision that was challenged in Roberson was a final decision. The Federal Circuit looked to Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) to find that VA was required to develop the veteran's claim to its optimum before deciding it on the merits. Id. at 1362. The Federal Circuit held that a claim for TDIU was raised in the instant case and reversed the Court's decision that no TDIU claim was before the RO in 1984. The case was remanded to the Court for a determination of eligibility for TDIU in accordance with the opinion. The Federal Circuit addressed the issue of how to handle unadjudicated claims, among other issues, in Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005). The Federal Circuit noted that the appellant argued that VA should have construed his 1983 and 1985 applications to raise a TDIU claim. The Federal Circuit said that he could not prevail on this argument unless he properly raised it before the Board in a CUE motion. It was determined that he had not raised this specific argument. The Federal Circuit said that he remained free to submit a new CUE motion. Finally, the Federal Circuit concluded that, when VA violates Roberson by failing to construe the veteran's pleadings to raise a claim, such claim is not considered unadjudicated. The error is properly corrected through a CUE motion. Andrews, 421 F.3d at 1284. The Federal Circuit issued another decision on the same day as Andrews that affirmed the latter holding. In Johnston v. Nicholson, 421 F.3d 1285 (Fed. Cir.) the Federal Circuit rejected the government's argument that any alleged TDIU claim from the appellant remained pending before the RO and that the Federal Circuit did not have jurisdiction to review the case because there was no final Board decision on the claim. The opinion said that the Federal Circuit had rejected that argument in Andrews, that same day, and rejected it in this case for the same reasons as in Andrews. Id., at 1287, Footnote 3. The issue of unadjudicated claims was again reviewed by the Federal Circuit in Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006). In that case the veteran submitted a claim in July 1984 for, inter alia, service connection for residuals of a head injury. He was afforded a VA medical examination. He was granted service connection for residuals of his head injury and assigned a 10 percent rating by way of a rating decision dated in January 1985. The rating decision did not make a specific rating regarding a psychiatric disability but, in the narrative of the decision, noted that the VA examination showed no psychiatric disability at the present time. The appellant did not appeal the decision. The appellant later was granted service connection for a mood disorder, personality change, and cognitive disorder as secondary to the head injury in October 2000. The effective date was established as the date to reopen the claim, August 4, 1999. The appellant challenged the effective date. He argued that VA should have read his pleadings to include a claim for a psychiatric disability at the time he submitted his claim in July 1984. The Federal Circuit held that the January 1985 decision was final and that the veteran could only establish an effective date in 1984 by establishing CUE in the 1985 decision. The appellant did not challenge the decision on the basis of CUE. He argued that the 1985 decision was not final because the psychiatric claim was never explicitly addressed in the 1985 decision. Therefore, he argued, the claim remained pending and unadjudicated until the October 2000 decision. The Federal Circuit stated that "[w]here a veteran files more than one claim with the RO at the same time, and the RO's decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run." Deshotel, 457 F.3d at 1261. The opinion further noted that this exact issue was addressed in Andrews. The Federal Circuit noted that it had specifically rejected the government's contention in Andrews that a TDIU claim remained pending and unadjudicated. The Federal Circuit said it had relied on Roberson to hold "that where an RO renders a decision on a veteran's claim for benefits but fails to address one of the claims, that decision is final as to all claims; the RO's failure to address the implied claim 'is properly challenged through a CUE motion,' not a direct appeal." Id at 1262 (citing to Andrews, 421 F.3d at 1281). The Federal Circuit held that, under the rule articulated in Andrews, if the appellant felt that the RO improperly failed to address his claim for psychiatric benefits when it granted service connection for his head trauma, his remedy was to either file a timely direct appeal or to file a CUE claim to attack the 1985 decision. In the current case the holdings in Andrews and Deshotel are dispostive as to the veteran's assertion that the TDIU claim remains unadjudicated. While a TDIU claim can be inferred in the March 22, 1988 VA examination report, the Board finds that the June 17, 1988 rating decision implicitly denied any TDIU claim raised by the record. Such a finding is supported by the Federal Circuit's decisions cited above. Further, the veteran did not appeal this decision and it is final. See 38 U.S.C.A. § 4005(c) (1982); 38 C.F.R. § 3.104, 19.129, 19.192 (1987); currently 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.104, 20.302, 20.1103 (2007). As noted in Deshotel, the veteran could have submitted a timely appeal of those decisions, or could have raised a CUE challenge. He has done neither. Accordingly, there are no pending claims from 1988 and any development, including extraschedular consideration from the non-pending claim is rendered moot. Factually Ascertainable Regarding when a factually ascertainable increase in disability occurred, the Board notes that disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2002). Under the provisions of the Rating Schedule effective prior to November 7, 1996, the general rating formula for psychotic disorders was as follows: active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability (100 percent); with lesser symptomatology such as to produce severe impairment of social and industrial adaptability (70 percent); considerable impairment of social and industrial adaptability (50 percent); definite impairment of social and industrial adaptability (30 percent); mild impairment of social and industrial adaptability (10 percent); and psychosis in full remission (0 percent). 38 C.F.R. § 4.132, Diagnostic Code 9203 (1996). GC has concluded that the term "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that "has more than moderate but less than rather large." See VAOPGCPREC 9-93 (November 9, 1993). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c) (West 2002). Pursuant to Hazan, the Board must consider all the evidence of record in determining when the increase in the veteran's disability was factually ascertainable. Thus, since the date of the receipt of the claim has been determined to be May 22, 1992, all of the evidence dated prior will be considered by the Board to determine whether it was factually ascertainable that an increase in the veteran's schizophrenia occurred prior to that date. Review of the record reveals that in July 1971 the veteran apparently had an acute paranoid schizophrenic-like episode, but no manifestations of this were noted on a subsequent VA examination. On VA examination in April 1972 the veteran reported that he attended college for the past two years and was making "A's", and denied hearing voices. He was oriented in all spheres, and was found to be articulate and intelligent. He was not confused and had no hallucinations or delusions. No psychiatric disorder was found. Thus, although the veteran had a psychotic episode in July 1971, this was shown to be acute, and as of April 1972 the veteran had no psychiatric disorder; thus an increase in the veteran's schizophrenia was not shown as of April 1972. Subsequent VA treatment records, dated from approximately 1979 to 1992, reflect diagnoses of schizophrenia, chronic, and indicate that the veteran was on medication and was seen periodically for follow-up. He reported having delusions regarding Communists and surveillance, but it was also noted that his family was supportive and his symptoms and delusions were not increasing. On VA examination in March 1988 the veteran reported he worked for his grandparents in their small grocery store, but expressed great difficulty in handling the job. On mental status examination he was alert and oriented in all spheres, and his speech was of normal rate and tone. It was noted that he was impaired in his interpersonal relationships and the ability to be gainfully employed. Thus, neither the VA treatment records nor the March 1988 VA examination establish that the veteran's service-connected schizophrenia caused more than mild or slight impairment of social and industrial adaptability. On VA examination in May 1993, however, the veteran reported that he ran errands for his grandparents. He had delusions, hallucinations, loose associations, and no interpersonal relationships in spite of medications and psychotherapy. The mental status examination was difficult because of the veteran's suspiciousness and there was clear evidence of a thought disorder. GAF was estimated from 45-50. The veteran appeared competent for VA purposes, but was certainly severely disabled for his ability to be gainfully employed or to maintain any kind of interpersonal relationships outside of the grandparents and an occasional shopper in the store. Thus, the Board finds that an increase in the service- connected schizophrenia to 100 percent was factually ascertainable as of the date of the VA examination, which was May 26, 1993. Since the date of receipt of the claim for an increase (May 22, 1992) precedes the increase in disability (May 26, 1993), the "general rule" applies and therefore the effective date of the veteran's claim is governed by the later of the date of increase or the date the claim is received. Here the later date is the date of the increase, May 26, 1993. Thus, the applicable law and regulations provide that an effective date of May 26, 1993 (and no earlier) is actually warranted for the assignment of a 100 percent rating for schizophrenia, chronic, paranoid type. T he RO assigned an effective date prior to May 1993, based on the date of the claim, and on appeal the Board will not disturb the RO's determination in that regard. The Board notes that the veteran has submitted statements in which he and his mother and grandfather indicate that the veteran was unable to obtain employment or be employed due to the schizophrenia. The Board notes that this is not sufficient evidence showing that the veteran had an increase in his schizophrenia prior to May 22, 1992. Although the veteran and other lay persons are competent to provide an account of the veteran's symptoms, "the capability of a witness to offer such evidence is different from the capability of a witness to offer evidence that requires medical knowledge." Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). There is no evidence of record showing that the veteran's mother or grandfather or the veteran himself possess the technical or specialized knowledge to provide a probative conclusion with respect to the issue of whether his schizophrenia had increased in severity. See Espiritu, supra. Thus, the Board finds that this evidence is not sufficient to factually show that the veteran had an increase in his schizophrenia at any time prior to May 22, 1992. The Board acknowledges the veteran's sister is a physician and her statement, which was submitted in May 2000, includes an opinion that the veteran was not able to obtain or retain employment after his separation from service. Her knowledge of the veteran's emotional and mental state is apparent from the statement. She describes in some detail why she believes that an increase in the veteran's schizophrenia was factually ascertainable more than one year prior to May 1992. However, contemporaneous medical evidence for the period immediately following the veteran's period of active duty does not reflect the degree of social and industrial impairment described by the veteran's sister. More importantly, in VAOPGCPREC 12-98, the VA General Counsel cited the Harper decision and noted that the phrase "otherwise, date of receipt of claim" in 38 C.F.R. § 3.400(o)(2) provides the applicable effective date when a factually ascertainable increase occurred more than one year prior to receipt of the claim for increased compensation. See VAOPGCPREC 12-98. The Board finds that assuming, without conceding, that the veteran's sister's opinion shows that an increase in the veteran's schizophrenia was factually ascertainable earlier than May 1992, the date of receipt of the claim, an earlier effective date could not be assigned as the increase in disability was not ascertainable within one year prior to the claim for an increase. Therefore, the effective date of the claim would be governed by the later of the date of increase or the date the claim is received, as provided in 38 U.S.C.A. § 5110(a) and 38 C.F.R. § 3.400(o)(1). The Board finds that it was not factually ascertainable prior to May 22, 1992 that the schedular requirements for a 100 percent evaluation for service- connected schizophrenia were met. Therefore, applying the relevant laws and regulations, a clear preponderance of the evidence is against the veteran's claim, and there is no basis for assigning an effective date earlier than May 22, 1992. Finally, with regard to the claim that the criteria for an extraschedular evaluation were met prior to May 22, 1992, the case was referred to the Director of Compensation and Pension following the most recent Board remand. In a June 2005 determination, the Director noted that the schizoaffective disorder was well-controlled on medication during the pertinent time period. The veteran was alert, oriented and did not require hospitalization. While he did exhibit anxiety, some episodic paranoid ideation and had difficulties in interpersonal relationships, he was not disabled to the point he was unable to be gainfully employed. The finding was that the veteran was not entitled to an extra-schedular total disability rating prior to May 22, 1992. The Board has reviewed this determination and finds no basis to overturn it. ORDER Entitlement to an effective date earlier than May 22, 1992, for the assignment of a 100 percent evaluation for schizophrenia, paranoid type, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs