Citation Nr: 1118118 Decision Date: 05/11/11 Archive Date: 05/17/11 DOCKET NO. 05-32 390A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an effective date earlier than August 25, 2004, for the award of a 100 percent evaluation for paranoid schizophrenia 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior the award of 100 percent evaluation for paranoid schizophrenia. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from July 1968 to September 1970. This matter comes back before the Board of Veterans' Appeals (Board) on Remand from the United States Court of Appeals for Veterans Claims (CAVC) regarding a Board decision rendered in February 2008. This matter was originally on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. FINDINGS OF FACT 1. A final December 1998 RO decision effectuated a final December 1998 Board decision, and assigned a 50 percent evaluation for paranoid schizophrenia. 2. The Veteran's claim for an increased evaluation for service-connected paranoid schizophrenia was received by VA on February 11, 2001; it became factually ascertainable that an increase in disability had occurred August 31, 2000 and not prior to that date. 3. There was not a pending unadjudicated claim for a TDIU prior to February 11, 2001; and it is not factually ascertainable that between February 11, 2000 and August 31, 2000, the Veteran's service-connected schizophrenia increased in severity. CONCLUSIONS OF LAW 1. An effective date of August 31, 2000, and no earlier, for the award of a 100 percent evaluation for paranoid schizophrenia is warranted. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.400, 4.130, Diagnostic Code 9203 (2010). 2. Entitlement to a TDIU was not warranted prior to August 31, 2000. See 38 C.F.R. §§ 3.1(p), 3.151 § 3.155 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. With respect to service connection claims, the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has met all statutory and regulatory notice and duty to assist provisions. A letter dated in May 2005 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 6 Vet. App. at 183, Dingess, 19 Vet. App. at 473. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The Veteran's service medical records, post-service medical treatment records, and SSA records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. In addition, the nature of this case depends upon consideration of evidence already contained in the claims file. There is no dispute as to the date of receipt of the relevant documents in the file. Accordingly, there is no reasonable possibility that any additional notice or assistance would aid the Veteran in substantiating his claim. The Board notes that the Veteran is represented by counsel; and there has been no assertion of any failure to provide appropriate notice. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) Earlier Effective Date The Veteran seeks an earlier effective date for the award of a 100 percent disability rating for his service-connected paranoid schizophrenia. Historically, in March 1971, the RO granted service connection for paranoid schizophrenia and assigned a 30 percent disability rating effective September 23, 1970. That rating continued until December 1978 when a rating decision decreased the disability rating to 10 percent effective May 1, 1978. The Veteran appealed that decision, and by rating decision dated in September 1980, the previous 30 percent rating was restored. On August 25, 1993, the Veteran requested an increased rating for his psychosis condition. An increased rating was denied in a January 1994 rating decision. The Veteran appealed that decision. In August 1997, the Board remanded the issue for further development. In December 1998, the Board found that an evaluation of 50 percent for the Veteran's psychiatric condition was warranted. A December 1998 rating decision effectuated the increase to 50 percent for the Veteran's paranoid schizophrenia and assigned an effective date of August 25, 1993. In April 2000, the Veteran's representative raised a claim for an earlier effective date for the award of 50 percent evaluation for paranoid schizophrenia. In January 2001, the Board remanded the issue for further development. In February 2003, the Board denied entitlement to an effective date earlier than August 25, 1993 for the award of a 50 percent evaluation for paranoid schizophrenia. Pursuant to a Joint Motion for Remand, the CAVC ordered that the motion for remand be granted and that part of the Board's decision that denied an effective date earlier than August 25, 1993 for the award of a 50 percent evaluation for paranoid schizophrenia be vacated. In April 2004, the Board remanded the issue for further development. On August 25, 2004, VA received a letter from the Veteran's attorney countersigned by the Veteran requesting that the claim of earlier effective date for schizophrenia be dismissed so that the RO could begin processing increased rating and TDIU claims. In a February 2005 rating decision, the RO granted 100 percent rating for paranoid schizophrenia effective August 25, 2004. In April 2005, the RO received the Veteran's Notice of Disagreement (NOD) with respect to the effective date assigned. VA law and regulation provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2010). Regulations also provide that the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(o)(1) (2010). The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2010). The effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13Vet. App. 449 (2000). Three possible dates may be assigned depending on the facts of a case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1) (2010)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2) (2010)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2) (2010)). See Harper v. Brown, 10 Vet. App. 125, 126 (1997). Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2) (2010). With regard to the terms "application" or "claim," the Board notes that once a formal claim for compensation has been allowed, receipt of a VA hospitalization report, a record of VA treatment or hospitalization will be accepted as an informal claim for increased benefits, and the date of such record will be accepted as the date of receipt of a claim. 38 C.F.R. § 3.157(b)(1) (2010); see also 38 C.F.R. § 3.155(a) (2010). In a December 3, 1998 decision, the Board found that an evaluation of 50 percent for the Veteran's psychiatric condition was warranted. That decision was not appealed. Following that decision, another claim for an increased evaluation for the Veteran's service-connected paranoid schizophrenia was received on August 25, 2004. The Board notes that the effective date of August 25, 2004 is based on the date that VA received the Veteran's claim for increased evaluation. The Board has considered whether a claim for increased evaluation for paranoid schizophrenia was received prior to August 25, 2004, but after the December 3, 1998 Board decision. In this regard, the Board notes that on February 11, 2001, the Veteran submitted a statement that he was sending copies of the doctors' addresses that the Social Security Administration (SSA) appointed to examine him for benefits and noted that VA had his permission to contact SSA to obtain records. He noted a psychiatric appointment in October 1998. In August 2001, the RO sent the Veteran a VCAA letter informing him of information needed to substantiate, inter alia, his claim for increased evaluation for his service-connected schizophrenia. Thus, the Board finds that the RO apparently construed the Veteran's statement received on February 11, 2001 as a claim for an increased evaluation for his paranoid schizophrenia. As such, the remaining question before the Board is when was it factually ascertainable that the Veteran's symptoms increased in severity to meet the schedular requirements for a 100 percent evaluation for paranoid schizophrenia? It is important to note that the RO assigned a 100 percent disability rating for paranoid schizophrenia based entirely on the findings of the October 2004 VA examination. That examination noted that the Veteran asked inappropriate questions such as "are there any rats in here" and had exhibited similar behavior during previous psychiatric examinations bringing up the possibility of factitious behavior. The Veteran's affect was extremely guarded and blunted, he endorsed ongoing auditory hallucinations, and he endorsed ideas of reference and feelings as if people want to harm him for no obvious reason. The Veteran's insight was poor. The examiner stated, "This Veteran has a paranoid psychotic condition which has been long-standing, dating back to the late 1960s. There appears to have been little change in comparison to the condition described [] in his evaluation of 08/31/01." A diagnosis of schizophrenia, chronic paranoid, was rendered; and a GAF of 45 was assigned with a high GAF of 55 assigned for the prior year. The August 2001 VA examination report indicated that the Veteran was hospitalized in May 1999 and that his psychiatric illnesses included paranoid thinking, auditory and visual hallucinations, a strong mood component with depression, affective instability, and irritability. Mental status examination revealed that the Veteran suffered from perceptual disturbances and auditory and visual hallucinations. The examiner stated that the Veteran was at that time relatively free of psychotic symptoms except for an entrenched delusional pattern of thinking and vague, nonthreatening auditory and visual hallucinatory phenomena. The examiner noted that he was apparently not on regular psychotropic medication at that time. A diagnosis of schizo-affective disorder, bipolar type, was rendered; and a GAF of 55 was assigned with a high GAF of 55 assigned for the prior year. The GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." See the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) (DSM-IV). A GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. A GAF score of 41-50 contemplates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupation, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51-60 contemplates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with co-workers). While it appears from the GAF scores assigned that the Veteran's symptoms were more severe in 2004 than in 2001, the medical evidence suggests that there has been little change in the Veteran's psychiatric condition since August 31, 2000. Indeed, at the August 2001 VA examination, the Veteran was well dressed and neatly groomed; at the October 2004 examination, the Veteran was neatly but casually dressed. At the August 2001 VA examination, the Veteran did not exhibit any unusual behavior or psychomotor activity such as mannerisms, tics, twitches, hyperactivity, or agitation. None of these were noted in the October 2004 examination report. In August 2001, the Veteran's mood was noted to be described as alexithymic, and he scored 72 on the TAS-20, indicative of alexithymia, a way of communicating affective distress through somatic language. The Veteran also demonstrated depression and affective instability. In October 2004, the Veteran described his mood as "variable, very anxious, but sometimes depressed." In August 2001, the Veteran was noted to suffer from perceptual disturbances and continued to experience auditory and visual hallucinations; he admitted to hearing voices and seeing things such as rats and snakes and noted that they were like shadows and that he had this problem especially at night. In October 2004, the Veteran endorsed ongoing auditory hallucinations. In August 2001, the Veteran's thought processes revealed an overabundance of ideas, and in general, he was over talkative. The examiner noted that not all of the Veteran's answers were goal directed and relevant, that there was a degree of evasiveness and circumstantiality, and that he seemed to be preoccupied with his testicular problem and arthritis. In October 2004, the Veteran endorsed ideas of reference. In August 2001, the Veteran's intellectual functioning was within the average range, and he was oriented as to person, place and time. In October 2004, the Veteran was oriented to time and place. In August 2001, the Veteran's memory was intact in all spheres, his insight was not developed, and his judgment was considered only fair. In October 2004, the Veteran's memory for recent and remote events seemed good, his insight was poor, and his judgment to avoid common dangers seemed adequate. With respect to the Veteran's speech, in August 2001, the VA examiner noted that the Veteran's speech was normal in volume and rate and that he was quite verbal and fluent. However, he also noted that, in general, the Veteran was over talkative and that not all of his answers were goal directed and relevant and that there was a degree of evasiveness and circumstantiality. At the October 2004 VA examination, the Veteran's speech was guarded and he frequently asked inappropriate questions such as "are there any rats in here?" Thus the main area where the Veteran's symptoms differed was in his affect. In August 2001, the Veteran's affect was euthymic; in October 2004, the Veteran's affect was extremely guarded and blunted. Despite this difference in affect as well as the 10-point spread in the GAF scores assigned in August 2001 and October 2004, the Board finds that the Veteran's schizophrenia appears to be indicative of total occupational and social impairment both in August 2001 and October 2004. The Board notes that although the Veteran did not exhibit grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name, in August 2001, the VA examiner noted that the Veteran's psychiatric illness included paranoid thinking, auditory and visual hallucinations, a strong mood component with depression, affective instability, and irritability. A 70 percent disability evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. The maximum rating of 100 percent requires total occupational and social impairment due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. In this case, the Board finds that the Veteran's symptoms of paranoid thinking, auditory and visual hallucinations, depression, affective instability, and irritability in August 2001 exceeds the criteria for the 70 percent disability evaluation and more nearly approximates total occupational and social impairment. The Board also finds that the record indicates that the Veteran's functioning was at the same level in the year period prior to the August 31, 2001 VA examination. As noted previously, an effective date of any increase cannot precede the date of the receipt of the claim, unless it is factually ascertainable that an increase in disability had occurred during the preceding year. In this case, as the receipt of the claim was on February 11, 2001, the effective date could not precede February 11, 2000. Thus, the evidence indicates that it became factually ascertainable that an increase in disability had occurred as early as August 31, 2000. See 38 C.F.R. § 3.400(o)(2) (2010). A preponderance of the evidence is against an effective date prior to August 31, 2000, because, based upon the above analysis, a claim for increase was not filed prior to February 11, 2001, and it is not factually ascertainable that an increase in the Veteran's schizophrenia occurred after February 11, 2000, and prior to August 31, 2000. The Board notes at this point that an April 2010 Memorandum Decision of the CAVC which vacated the February 19, 2008, Board decision, noted that the record contained evidence the Veteran was unemployable as a result of his service-connected schizophrenia and remanded the matter for the Board to consider whether the Veteran's claim would be referred for TDIU rating under 38 C.F.R. § 4.16(b) between February and August 2000. The Board acknowledges the judicial holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In that decision, the United States Court of Appeals for Veterans Claims held that a request for a total rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. Because the Veteran in this case submitted a timely appeal for an earlier effective date for the award of 100 percent disability evaluation for schizophrenia and because under Rice, a claim for a TDIU is part and parcel of the increased rating claim, the Board has jurisdiction to consider whether there was a pending unadjudicated claim for a TDIU prior to August 31, 2000. Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case, the Veteran argues that a claim for a TDIU was reasonably raised at the time of the January 1999 rating decision (December 1998 rating decision with notice to veteran in January 1999) and was pending and unadjudicated. In fact, the Board finds that arguably under Roberson, a claim for a TDIU was reasonably raised by the record in October 1997 when, during a VA examination, the Veteran reported that he had been employed off and on and that for the prior year he had worked about six months. The Veteran also reported that his last full-time job had ended a week prior after an altercation with his boss and that he decided to quit before he was fired. At the time of the October 1997 VA examination, the Veteran had already made a claim for the highest rating possible for his service-connected schizophrenia. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that on a claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded). A reasonably raised claim remains pending until there is either recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent "claim" for the same disability. See Deshotel v. Nicholson, 457 F.3d 1258, 1261 (Fed.Cir. 2006) and Myers v. Principi, 16 Vet. App. 228, 229 (2002); 38 C.F.R. § 3.160(c) (2010). In Ingram v. Nicholson, 21 Vet. App. 232 (2007), the CAVC noted that it recognized that under some circumstances TDIU may be sought as part of an initial award of disability compensation benefits or as a type of increased-rating claim and that it was reasonable to say that an appellant who received a disability rating that was less than 100% had notice of how his conditions had been rated and had the opportunity to appeal the rating decision. The CAVC also noted that even if the appellant did not have a clear understanding of TDIU, he did have a clear statement of which disability was being rated and the fact that the Secretary has declared it to be less than 100% disabling. The CAVC noted that as such, the appellant's ignorance of a particular reason for the denial of a total disability rating did not preclude him from understanding that an appealable decision had been made concerning his claim. See also Deshotel, 457 F.3d at 1261 "Where the 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."); Andrews v. Nicholson, 421 F.3d 1278, 1284 (Fed. Cir. 2005) (holding that when VA fails to construe the Veteran's pleadings to raise a claim, the error is properly corrected through a CUE motion.). Thus, the unappealed December 1998 Board decision effectively addressed the Veteran's reasonably raised claim for a TDIU. As such, the claim for a TDIU which had been pending since is October 1997 is deemed to have been denied in the December 1998 Board decision which granted a 50 percent disability rating for the Veteran's schizophrenia but denied the higher 70 percent rating. Thus, as of the December 1998 Board decision, the Veteran no longer had a pending and unadjudicated claim for TDIU. The Board finds that after the December 1998 Board decision, a claim for a TDIU was not again reasonable raised until February 11, 2001, as prior to this time, the Veteran did not articulate either an implicit or explicit intent to seek an increased evaluation for his service-connected schizophrenia. Thus, prior to February 11, 2001, as the Veteran did not request a determination on entitlement to increased evaluation for schizophrenia, did not evidence a belief in entitlement to an increased rating for schizophrenia, and did not communicate an intent to apply for an increased evaluation for schizophrenia, a claim for a TDIU was not reasonably raised by the record. See 38 C.F.R. §§ 3.1(p), 3.151 § 3.155 (2010). The Board notes that in November 2000, the Veteran testified before the Board that he was receiving SSA benefits due to back, urinary, and psychiatric problems. However, the Veteran's testimony in November 2000 cannot be construed as a claim for a TDIU as the Veteran had not until February 11, 2001, made a claim for the highest rating possible for his service-connected schizophrenia. The preponderance of the evidence is against finding that the Veteran submitted an informal or formal claim for a TDIU or that a TDIU was reasonable raised by the record after the December 1998 Board decision and prior to February 11, 2001. The question remains as to whether it was factually ascertainable between February 11, 2000, and August 31, 2000, that an increase in the Veteran's schizophrenia occurred such that he was unemployable due solely to service-connected schizophrenia. A total disability evaluation may be assigned where the schedular evaluation is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2010). A TDIU rating is based solely on the level of disability due to service-connected disabilities. Prior to August 31, 2000, the Veteran was service-connected for paranoid schizophrenia rated as 50 percent disabling and right epididymitis rated as 10 percent disabling. As such, he was ineligible for consideration of a TDIU rating under 38 C.F.R. § 4.16(a). However, 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. 38 C.F.R. § 4.16(b). Rating boards are required to submit to the Director, Compensation and Pension Service, for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. Where a claimant does not meet the schedular requirements of 4.16(a), the Board has no authority to assign a TDIU rating under 4.16(b) and may only refer the claim to the C&P Director for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, it is not factually ascertainable that there was an increase in the veteran's service connected schizophrenia such that the Veteran was unemployable due solely to service-connected schizophrenia in the year prior to February 11, 2001, and prior to August 31, 2000. The Board notes that on March 7, 2001, the RO received a copy of the Veteran's SSA disability determination dated in November 1998 which listed depression and PTSD as primary and secondary diagnoses. However, although depression has been noted to be a symptom of the Veteran's schizophrenia, service connection for PTSD has not been established. In this case, however, the majority of the symptoms attributed to the PTSD are, in fact, much of the same symptoms which have been attributed to the Veteran's service-connected schizophrenia. Thus, although the SSA records show that the Veteran is disabled due to depression and PTSD, because the PTSD symptoms are much the same symptoms as the Veteran's service-connected schizophrenia, the Board will accept the SSA records as evidence that the Veteran was unemployable due to symptoms of service-connected schizophrenia. However, the SSA records are dated no later than 1998; and as such cannot be the basis of a determination that it was factually ascertainable that an increase occurred between February 1, 2000, and August 31, 2000 such that the Veteran was unemployable due solely to service-connected schizophrenia. As no claim for TDIU was reasonably raised after December 1998 and prior to February 11, 2001, and it was not factually ascertainable between February 11, 2000, and August 31, 2000 that an increase in the Veteran's service-connected schizophrenia occurred such that he was unemployable due solely to service-connected schizophrenia, the Board is not required to refer the claim to the C&P Director for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b) between February 2000 and August 2000. The Board acknowledges the Veteran's statement received in May 2005 that he had been filing for an earlier effective date for a number of years and that each time he was denied an earlier effective date, he filed an appeal. If a claimant disagrees with an effective date assigned, and an earlier effective date is disallowed, he has the right to appeal that disallowance to the Board. See, e.g., 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2010). If the claimant initiates a timely appeal and the appeal is later withdrawn, the disallowance becomes final. See 38 C.F.R. §§ 20.204 (2010). In this case, the Veteran's request for an earlier effective date assigned in the December 1998 rating decision for the award of a 50 percent disability rating for paranoid schizophrenia was properly withdrawn by the August 25, 2004 statement. Therefore, the effective date assigned in the December 1998 rating decision became final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998). A preponderance of the evidence is against an effective date prior to August 31, 2000, for a 100 percent evaluation for service-connected schizophrenia or for a TDIU as a claim for increase was not filed prior to February 11, 2001, and it is not factually ascertainable that an increase in the Veteran's schizophrenia occurred or that the Veteran became unemployable during the period from February 11, 2000, to August 31, 2000. Thus the Board concludes that an effective date of August 31, 2000, but no earlier, for the award of a 100 percent evaluation for paranoid schizophrenia is warranted and that a TDIU is not warranted at any time prior to August 31, 2000. ORDER Entitlement to an effective date of August 31, 2000, but no earlier, for the award of a 100 percent evaluation for paranoid schizophrenia, is granted. Entitlement to a TDIU prior to August 31, 2000, is denied. _____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs