Citation Nr: 1322787	
Decision Date: 07/17/13    Archive Date: 07/24/13

DOCKET NO.  95-12 322	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Fort Harrison, Montana


THE ISSUE

Entitlement to an effective date earlier than March 14, 2005, for the grant of a 100 percent disability rating for paranoid schizophrenia.  


REPRESENTATION

Appellant represented by:	Sean Kendall, Attorney


ATTORNEY FOR THE BOARD

Evan M. Deichert, Counsel


INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket.

The Veteran served on active duty from May 1942 to April 1943.  

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 1995 rating decision of the Fort Harrison, Montana, Department of Veterans Affairs (VA) Medical and Regional Office Center (RO), which granted an increased disability rating for schizophrenia from noncompensable to 30 percent, effective September 30, 1994.  

A subsequent December 2005 rating decision granted the Veteran a 100 percent rating for his schizophrenia, effective March 14, 2005.  The Veteran then filed a notice of disagreement with the effective date assigned in that rating decision.  

In April 2013, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration.  The Veteran and his representative were provided a copy of the opinion and afforded the opportunity to submit additional evidence and argument.  

This case has a long history before the Board and the Court; it has been the subject of numerous remands and decisions, as well as an August 2010 Memorandum Decision and an April 2012 Joint Motion for Remand.  The bottom line is that the Board is deciding the appropriate rating to be assigned for a September 1994 claim for an increased rating.   As the Board is granting the Veteran's claim, no recitation of this history is necessary.  


FINDING OF FACT

From September 30, 1994, the Veteran's schizophrenia resulted in active psychotic manifestations of such extent, severity, depth, persistence, or bizarreness as to produce total social and industrial inadaptability or total occupational and social impairment.  


CONCLUSION OF LAW

The criteria for a 100 percent rating for schizophrenia effective September 30, 1994 have been met.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.400, 4.130, Diagnostic Code 9203 (2012); 38 C.F.R. § 4.132, Diagnostic Code 9203 (effective prior to November 7, 1996).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and to Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  The Board is granting in full the benefit sought on appeal.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.  

II.  Entitlement to an Earlier Effective Date for a 100 Percent Rating

Generally, the effective date for an increased rating is the date of receipt of the claim or date entitlement arose, whichever is later.  38 C.F.R. § 3.400(o)(1).  If, however, the claim is filed within one year of the date that the evidence shows that an increase in disability has occurred, the effective date is the earliest date as of which an increase is factually ascertainable (not necessarily the date of receipt of the evidence).  38 C.F.R. §§ 3.157 (b) (1); 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126-27 (1997).  If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable."  If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim.  38 C.F.R. § 3.400(o)(1), (2).  If the increase occurred after the date of the claim, the effective date is the date of increase.  Id.

For VA compensation purposes, a "claim" is defined as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit."  38 C.F.R. § 3.1(p).  An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits."  It must "identify the benefit sought."  38 C.F.R. § 3.155(a).  Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing."  Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009).

VA must look to all communications from a claimant that may be interpreted as an application or claim, both formal and informal, for benefits and is required to identify and act on informal claims for benefits.  Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).  Additionally, 38 C.F.R. § 3.157(b) provides in pertinent part that once a formal claim for compensation has been allowed, receipt of a VA examination or hospitalization report will be accepted as an informal claim for increased benefits.  The date of outpatient or hospital examination or date of admission will be accepted as the date of claim.  38 C.F.R. § 3.157(b)(1).

The regulations for rating mental disorders were revised during the pendency of this appeal.  Prior to November 7, 1996, a 100 percent rating for schizophrenia was warranted with active psychotic manifestations of such extent, severity, depth, persistence, or bizarreness as to produce total social and industrial inadaptability.  38 C.F.R. § 4.132, Diagnostic Code 9203 (1996).  
4.132, DC 9203

The Veteran was initially service-connected for schizophrenia in February 1944.  His initial 70 percent rating was reduced to 30 percent in a May 1944 rating decision, and reduced again to a noncompensable rating in 1948.  

The Veteran sought an increased rating in 1991.  In a May 1991 rating decision, the RO continued the noncompensable disability rating for the Veteran's psychiatric disorder.  The Veteran did not file a notice of disagreement with this decision.  

The Veteran filed a claim for an increased rating for his schizophrenia that was received by the RO on September 30, 1994.  There is no evidence of the Veteran's filing a claim or being hospitalized for his condition between the May 1991 denial and the September 1994 claim.  In a February 1995 rating decision, the RO increased his rating from noncompensable to 30 percent.  In a subsequent May 1998 rating decision, the RO increased the Veteran's rating to 50 percent, effective September 30, 1994.  In a December 2005 rating decision, the RO increased the Veteran's rating to 100 percent, effective March 14, 2005.  

Accordingly, for the Veteran to be successful on his claim, the evidence must show that it is factually ascertainable that his schizophrenia manifested the requisite symptoms to meet the rating criteria for a 100 percent rating at any time between September 30, 1993 (one year prior to the date of his claim) and March 14, 2005 (the currently assigned effective date for the 100 percent rating).  

Since November 7, 1996, a 100 percent rating for schizophrenia is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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.  38 C.F.R. § 4.130, Diagnostic Code 9203.

This case has been the subject of numerous decisions, remands, and actions from the Court.  In an effort to resolve the questions surrounding the claim, the Board sought a VHA specialist's opinion in April 2013.  

In a June 2013 response, the VHA specialist concluded that the Veteran met the criteria for a 100 percent prior to October 2005 under both Diagnostic Codes.

Under the code in effect prior to November 7, 1996, the specialist stated that the evidence indicates that the Veteran was significantly impaired by his mental illness to the point where he could not function as a productive member of society.  He concluded that the Veteran's significant psychotic and cognitive symptoms would impair his functioning to the point of total social and industrial inadaptability.  

Under the currently effective code, the specialist stated that the evidence showed that the Veteran's psychotic and cognitive symptoms were worsening; he noted the Veteran's more prominent paranoia, delusions, hallucinations, and cognitive impairment.  The specialist concluded that the evidence from this period shows that the Veteran's functional disability from his schizophrenia resulted in total occupational and social impairment.  

Though there are opinions weighing against the specialist's conclusion, the evidence regarding whether the Veteran meets the criteria for a 100 percent rating between September 30, 1994 and March 14, 2005 is, at the very least in equipoise.  Accordingly, an earlier effective date of September 30, 1994 for the award of a 100 percent rating for schizophrenia is warranted.  

There is no evidence to support extending the effective date for this increase prior to the date of the claim in September 1994.  There is no evidence that the Veteran filed a claim for an increased rating or that he was hospitalized for his service-connected condition between a final May 1991 denial for an increase and the September 1994 claim.  Further, while the Board could extend the effective date to a year prior to the date of the claim, such an extension is only possible if it is "factually ascertainable."  38 C.F.R. § 3.400(o)(2).  There is, however, no explicit evidence from the year prior to the date of the Veteran's claim that would allow the Board to assign an effective date within that period. 


ORDER

Entitlement to an effective date of September 30, 1994, for the grant of a 100 percent disability rating for paranoid schizophrenia is granted.  



____________________________________________
RONALD W. SCHOLZ 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs