Citation Nr: 1301823	
Decision Date: 01/16/13    Archive Date: 01/23/13

DOCKET NO.  08-06 831A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial rating greater than 50 percent disabling for schizoaffective disorder.


REPRESENTATION 

Appellant represented by: Robert V. Chisolm, Attorney  


ATTORNEY FOR THE BOARD

J. M. Kirby, Counsel



INTRODUCTION

The Veteran served on active duty from February 1986 to January 1990.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2001 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

A November 2011 Board decision denied entitlement to an initial rating greater than 50 percent disabling for schizoaffective disorder.  Consequent to an June 2012 Order by the Court of Appeals for Veterans Claims (Court), promulgating a June 2012 Joint Motion for Remand (Joint Motion), the appeal was remanded to the Board. 

A letter was sent to the Veteran and his attorney on July 2, 2012, in which he was given 90 days from the date of the letter to submit additional argument or evidence in support of his appeal prior to the Board's consideration of the Joint Motion's directives.  The Veteran's attorney's request for a 60 day extension was received and granted in September 2012; the attorney submitted a statement in support of the appeal in October 2012, enclosing additional evidence and noting that the Veteran waived his right to have this evidence reviewed by the Agency of Original Jurisdiction.


FINDING OF FACT

The Veteran's schizoaffective disorder is productive of symptoms that reasonably show total impairment.  






CONCLUSION OF LAW

With the resolution of reasonable doubt in the Veteran's favor, the criteria for a 100 percent evaluation for schizoaffective disorder have been met.  38 U.S.C.A. § 1155, 5013A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.130, Diagnostic Code 9211 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).  April 2001, January 2005, May 2005, and September 2006 letters satisfied the duty to notify provisions with respect to the Veteran's underlying service connection claim; once a claim for service connection has been substantiated, the filing of a notice of disagreement with the initial rating of the disability, as the Veteran did in March 2010, does not trigger additional 38 U.S.C.A. § 5103(a) notice.  Therefore, any defect as to notice is non-prejudicial.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 134 (2008) (where a claim has been substantiated after August 29, 2000, the appellant bears the burden of demonstrating any prejudice from defective notice with respect to any downstream elements).  The September 2006 letter notified him of regulations pertinent to the establishment of an effective date and of the disability rating.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio, supra; Dingess/Hartman, supra.  

The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran's Social Security Administration (SSA) disability determination, and the medical records considered in making that decision, was obtained in March 2009.  38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010).  The VA examinations conducted during the appeal period are adequate for rating purposes, as the Veteran's reported symptoms were recorded, a mental status examination conducted, and additional opinions comment as to specific symptomatology.  Likewise, the Veteran submitted a private medical evaluation report dated in September 2012, from a clinical psychologist, William B. Little.  

Review of the record does not indicate that additional evidence pertinent to the issues adjudicated in this decision is available, but not associated with the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

Increased Rating Claim

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012).  Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2012); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).  In determining a disability evaluation, the overall history of the disability is considered.  

Service connection for schizoaffective disorder was granted in the August 2007 rating decision, and a 50 percent initial rating assigned effective March 1, 1999 under the provisions of Diagnostic Code 9211.  Diagnostic Code 9211 is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula).  Under the General Rating Formula, a 50 percent rating is warranted where the disorder is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  See 38 C.F.R. § 4.130, Diagnostic Code 9211, General Rating Formula. 

A 70 percent rating is warranted where the disorder is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the 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 an inability to establish and maintain effective relationships.  Id. 

The maximum 100 percent rating is warranted when the disorder is manifested by total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; 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; memory loss for names of close relatives, own occupation, or own name.  Id.

Psychiatric disability ratings shall be assigned based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  However, a rating shall not be assigned solely on the basis of social impairment.  38 C.F.R. § 4.126(b).  Further, ratings are assigned according to the manifestation of particular symptoms.  However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002). 

After review of the evidence of record, the Board finds that the evidence supports a 100 percent rating for the Veteran's schizoaffective disorder.  With the resolution of reasonable doubt in the Veteran's favor, total social and occupational impairment is established by the record such that the maximum schedular rating is warranted.  

As documented in the December 2008 VR&E determination, the December 2008 Pioneer Rehabilitation assessment, and the January 2009 Private Report of Independent Living, the Veteran has held a number of jobs over the appeal period, none lasting for long periods, and the jobs appeared to end primarily as a result of acute exacerbations of his such symptoms.  Similarly, the Veteran's social impairment is nearly total.  He has been married multiple times, and appears to repeatedly choose companions who either try to take advantage of him or who create environments which are unhealthy or lead to him having a relapse of drug or alcohol abuse.  Prior to her death, the Veteran's symptoms also appear to have resulted in a significant rift from his mother, on whose support the Veteran relied greatly; in one treatment record, the Veteran was noted to have been homeless after his mother threw him out of the house when he went off his medications and his symptoms increased.  

To that end, the Veteran's drug and alcohol abuse is the source of conflicting evidence within the treatment and evaluation records.  In his September 2012 letter, Dr. Little concluded that the Veteran's use of these substances was a consequence of his illness, specifically, that the poor judgment resulting from his schizoaffective disorder led to his use of these substances.  Although other clinicians, specifically the August 2009 VA examiner, appear to believe that the severity of the Veteran's symptoms were either caused or aggravate by his substance abuse, the Board is inclined to agree with Dr. Little, especially because the record establishes many occasions where the Veteran's most severe symptoms - suicidal ideation, delusions, and auditory hallucinations - were present even when he was in remission from drug and alcohol abuse.  This poor judgment, and lack of impulse control, is a hallmark characteristic of the 70 percent rating.

Moreover, the extent of the Veteran's reported suicidal ideation indicates a persistent danger to himself.  The Veteran expressed suicidal ideation on more than half the VA visits of record, and has been hospitalized, more frequently approaching the end of the appeal period, on the basis of the "Baker Act" (a term referencing involuntary psychiatric admission in certain states on the basis of feared harm of self or others).  Some of the auditory hallucinations the Veteran experiences also manifest as voices telling him to harm himself.  Thus, the multiple incidences of self-admittance or involuntary admittance for treatment of suicidal ideation, especially during acute exacerbations, indicates a level of impairment approximating total.  

The record also is replete with evidence that the Veteran experiences hallucinations, primarily audio-based, and religious delusions and delusions of grandeur, during acute exacerbations of his symptomatology.  Further, a June 2002 VA record, a May 2003 private inpatient treatment record, and the September 2012 letter from Dr. Little each indicate that the Veteran was found to be lacking in hygiene or that he had to be told or reminded to bathe himself.  

The record also reflects that the Veteran is currently receiving Social Security disability benefits based on his service-connected psychiatric disability.  Similarly, VA determined in December 2008 that the Veteran was not eligible for vocational rehabilitation and employment (VR&E) services because, based on the evidence, it was not reasonable to expect him to be able to train for or get a suitable job at this time.  The December 2008 findings of the private Pioneer Rehabilitation assessment report were highlighted, with it noted that the Veteran had held roughly 200 jobs in the last 10 years but had not been able to hold onto one job for any length due to the schizoaffective disorder symptoms.  The finding of the VR&E counselor is confirmed by the January 2009 Private Report of Independent Living, which noted that by the Veteran's history, he had never been able to keep one of his many jobs for very long due to his psychiatric disability, to include panic attacks and hallucinations.  (He had worked in meat cutting, as a car detailer, in a bank, as a landscaper, and as a laborer in a warehouse.)  Finally, Dr. Little's September 2012 letter concluded that the Veteran had been occupationally disabled since 1999, based on his symptomatology, which precluded employment even in the non-active psychosis phase of his illness.  Although the record does reflect that, at some points during the appeal period, the Veteran has worked, this appears to be marginal employment, which as directed by 38 C.F.R. § 4.16 (a) shall not be considered substantially gainful employment.  

On this record it may not be reasonably held that the evidence preponderates against the conclusion the Veteran's disability produces total social and industrial impairment.  Therefore, resolving reasonable doubt in favor of the Veteran, a 100 percent schedular evaluation for schizoaffective disorder is granted.  


ORDER

Entitlement to 100 percent rating for schizoaffective disorder is granted, subject to the applicable regulations concerning the payment of monetary benefits.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs