Citation Nr: 1343498 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 09-06 876A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUE Entitlement to an effective date prior to June 15, 2005 for the assignment of a 100 percent disability rating for service-connected schizophrenia. REPRESENTATION Appellant represented by: Harold Burfit, Representative on a One Time Basis only WITNESS AT HEARING ON APPEAL Appellant and his brother ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from May 1986 to July 1990. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2007 rating decision in which the RO assigned an increased, 100 percent, rating for service-connected schizophrenic reaction, paranoid type, effective June 15, 2005. In April 2007, the Veteran filed a notice of disagreement (NOD) with regard to the effective date of the rating assigned. In an August 2008 rating decision, the RO continued the 100 percent disability rating and found that the Veteran was not competent to handle disbursement of funds. The RO issued a statement of the case (SOC) in March 2009 as to the effective date of the 100 percent disability rating for schizophrenia. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) that same month. In March 2011, the RO issued a supplemental SOC (SSOC). In March 2012, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, to provide the Veteran with his requested hearing before a Veterans Law Judge. In August 2013, the Veteran and his brother testified during a Board video-conference hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. During the hearing, the Veteran's brother, acting as his representative for purposes of the hearing requested, and the undersigned granted, a 30-day abeyance period for submission of additional evidence in support of the claim. Also In August 2013, the Veteran's brother submitted additional medical evidence in support of his appeal, without a waiver of initial RO consideration of this evidence. Generally, a waiver is necessary prior to the Board reviewing such evidence in the first instance. See 38 C.F.R. § 20.1304 (2013). In the present case, however, the evidence is not pertinent to the present claim for an effective date prior to June 15, 2005, as the medical evidence provided was created years after the effective date in question. As the evidence is thus not additional, relevant evidence, the Veteran The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) file associated with the appellant's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. As a final preliminary matter, as regards representation, the Board notes that the claims file reflects that the Veteran was previously represented by the Military Order of the Purple Hearth (MOPH) (as reflected in an October 2001 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative). In a June 2011 VA Form 21-4138, Statement in Support of Claim, the MOPH reported that the Veteran intended to revoke the MOPH's Power of Attorney and that it accepted that revocation, effective immediately. Following the August 2013 Board hearing. in September 2013, a VA Form 21-22a, Appointment of Individual as Claimant's Representative, in favor of the Veteran's brother Harold Burfit (a non-attorney, non-agent) as his one-time representative under 38 C.F.R. § 14.630 was filed. The Board recognizes the change in representation. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. In May 1994, the RO granted service connection for schizophrenia and assigned an initial 50 percent disability rating, effective February 19, 1993 (the date of the Veteran's initial claim for service connection). 3. The Veteran perfected an appeal of the May 1994 decision, as to the 50 percent disability rating. The Veteran then withdrew his increased rating claim in a June 1997 statement. 4. In a September 1998 rating decision, the RO continued the 50 percent disability rating for schizophrenia. 5. The Veteran perfected his appeal of the September 1998 rating decision, but then withdrew his appeal in an October 2000 statement. 6. In October 2001, the Veteran filed another claim for an increased rating for schizophrenia, but withdrew that claim in a December 2001 statement. 7. On June 15, 2005, the Veteran filed a claim for an increased rating for schizophrenia. Based on review of VA medical records, in a February 2007 rating decision the RO granted a 100 percent disability rating, effective June 15, 2005, the date VA received the claim for a higher rating. 8. Private medical records, including from: the Alaska Psychiatry Institute, Lawrence and Memorial Hospital and Rochester General Hospital appear to provide evidence from which it is factually ascertainable that, as of one year prior to June 15, 2005 (or specifically June 15, 2004), the Veteran's service-connected schizophrenia met the criteria for a 100 percent disability rating for total occupational and social impairment. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for a June 15, 2004, but no earlier, effective date for the assignment of a 100 percent rating for schizophrenia are met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110, 7105(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.400, 20.200, 20.202, 20.204, 20.302(b), 20.1103 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). As regards the Veteran's earlier effective date claim, as is explained in more detail below, the Board is granting the claim to the fullest extent legally permissible in this case-June 15, 2004; hence all necessary notice and development to fairly adjudicate this aspect of the claim has been accomplished. To the extent that an effective date even earlier than that date is being denied, it is noted that the Veteran and his representative have been notified of the reasons for the prior denial of the claim, and were afforded opportunity to present evidence and argument with respect to the claim. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the Veteran, as the matter of the Veteran's entitlement to an effective date prior to June 15, 2004 lacks legal merit. As the law, and not the facts, is dispositive of the matter of an effective date earlier than the one granted by the Board, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). II. Analysis Generally, 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 later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Specifically as regards claims for increased disability compensation, the pertinent legal authority provides that the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date; otherwise the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2). As noted above, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly-authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). The basic facts in this case are not in dispute. The Veteran filed a claim for a rating in excess of 50 percent, for his service-connected schizophrenia, which VA received on June 15, 2005. In a February 2007 rating decision, the RO granted a 100 percent disability rating, effective June 15, 2005. In his April 2007 NOD, the Veteran argued that he is entitled to an earlier effective date for the award of the 100 percent rating. He did not provide any specific assertions as to why he believes that he is entitled to an effective date earlier than June 15, 2005, but only generally claimed that the effective date should be retroactive to February 19, 1993 or August 1, 1990. The Board notes that February 19, 1993 is the date of the Veteran's initial claim for service connection (and the effective date for service connection had been originally granted) and August 1, 1990 is one day after the July 31, 1990 date of the Veteran's discharge. Despite the Veteran's assertions, the Board points out that there was no pending claim for higher rating prior to the June 15, 2005 date of filing of the current increased rating claim pursuant to which the 100 percent rating ultimately awarded could have been granted. In a May 1994 rating decision, the RO granted service connection for schizophrenia and assigned an initial 50 percent disability rating, effective February 1993 (the date of the initial service connection claim). Although the Veteran perfected an appeal of the 50 percent disability rating initially assigned, he withdrew his increased rating claim (and hence, the appeal) in a June 1997 statement. Similarly, a September 1998 rating decision continued the 50 percent disability rating and the Veteran perfected an appeal of that rating decision. However, he withdrew his appeal in an October 2000 statement. In October 2001, the Veteran filed another claim for an increased rating for schizophrenia, but withdrew that claim in a December 2001 statement. The Veteran did not file another increased rating claim until June 15, 2005. On these facts, any claim for higher rating prior to that date was finally resolved. See, e.g., 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2013). The above notwithstanding, as previously noted, for increased disability compensation claims, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date; otherwise the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2). Under this authority, in connection with the current, June 15, 2005 claim, the earliest effective date that could possibly be assigned for the 100 percent disability rating is June 15, 2004-one year prior to the date the increased rating claim was received. The rating for the Veteran's schizophrenia has been assigned pursuant to Diagnostic Code 9203 for schizophrenia, paranoid type. Under the relevant rating criteria, a 100 percent rating is warranted when there is 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; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. In evaluating psychiatric disabilities, the Board has adopted Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, That manual includes a Global Assessment of Functioning (GAF) scale reflecting psychological, social and occupational functioning on a hypothetical continuum of mental illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996)(citing DSM-IV). According to the GAF scale, a score of 11-20 indicates some danger of severely hurting self or others (e.g. suicide attempts without clear expectation of death, frequently violent; manic excitement or occasional fails to maintain minimal personal hygiene (e.g. smears feces) or gross impairment in communication (e.g. largely incoherent or mute. A score of 21-30 indicate behavior considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g. sometimes incoherent, acts grossly inappropriate, suicidal preoccupation) or inability to function in almost all areas (e.g. stays in bed all day; no job, home or friends). A score of 31-40 indicates some impairment in reality testing or communication (e.g. speech is at times illogical, obscure, or irrelevant) (or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g. depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A score of 41-50 indicates serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g. no friends, unable to keep a job). Private medical records suggest that the Veteran's schizophrenia resulted in total occupational and social impairment within the year prior to his June 15, 2005 claim (and effective date of the 100 percent disability rating granted by the RO). Just a few months prior to June 15, 2004, a March 30, 2004 discharge summary from the Alaska Psychiatric Institute showed that the Veteran had been admitted with florid delusions of a grandiose and paranoid nature, but without other cognitive deficits. The physician found that on admission the Veteran had schizophrenia, paranoid type, and assigned a GAF score of 15. On final diagnosis, the physician found a higher GAF score of 55 and noted that the Veteran was pleasant, cooperative and denied suicidal or homicidal ideation, with no evidence of hallucinations. However, he found that the Veteran still manifested delusional beliefs. The physician found that the Veteran's prognosis was good on medications and poor off medications. A few months later, the Veteran underwent treatment at Lawrence and Memorial Hospital, starting on November 5, 2004 and ending on December 2, 2004. On the discharge summary, a physician diagnosed the Veteran with psychosis, not otherwise specified versus bipolar disorder, manic episode with psychotic features. The physician noted that the Veteran had been brought in by the police in an extremely psychotic, agitated state. It was further noted that a court had found that the Veteran was gravely disabled and recommended continuous commitment. Following a change in medication, the physician found that the Veteran had a somewhat improved insight and judgment and diminishing psychosis, but still with some paranoia and delusional content. A couple of months later, in January 2005, the Veteran received treatment at Rochester General Hospital. In a February 18, 2005 record, a physician found that the Veteran would need longer hospitalization for the safety of the Veteran and others because of the Veteran's fixed delusions. Considering the above-noted evidence in the light most favorable to the Veteran, the Board finds that the evidence tends to support finding that the Veteran's schizophrenia rendered him totally occupationally and socially impaired within the one year period prior to the filing of his June 15, 2005 claim. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. pp. 49, 53-56 (1990). Given the medical evidence noted above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for assignment of an effective date of June 15, 2004, but no earlier, for a 100 percent rating for schizophrenia are met. See 38 C.F.R. § 3.400(o)(2). ORDER An earlier effective date of June 15, 2004 for the assignment of a 100 percent rating for schizophrenia is granted, subject to the legal authority governing the payment of VA compensation. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs