Citation Nr: 1751348	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  14-03 232	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an effective date prior to January 17, 2007, for the award of a total disability rating based on individual unemployability (TDIU).

2.  Entitlement to an effective date prior to January 17, 2007, for basic eligibility for 38 U.S.C.A. Chapter 35 Dependents' Educational Assistance benefits.

3.  Entitlement to an initial rating in excess of 70 percent for schizophrenia, paranoid type.


REPRESENTATION

Veteran represented by:	Kenneth L. LaVan, Attorney at Law




ATTORNEY FOR THE BOARD

A. Odya-Weis, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1980 to April 1984.

These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision that assigned a 70 percent evaluation for schizophrenia, effective January 17, 2007, and a June 2011 rating decision that granted a TDIU and basic eligibility for Dependents' Educational Assistance benefits, effective January 17, 2007.

The Veteran was scheduled for a hearing before a Veterans Law Judge in July 2017; but subsequently requested the hearing be cancelled.  As such, the hearing request is withdrawn.  See 38 C.F.R. § 20.704(e) (2017).

The Board notes that the Veteran's attorney has provided argument on the issue of entitlement to an effective date prior to January 17, 2007, for the grant of service connection for schizophrenia, which is in response to the effective date assigned in the October 2010 rating decision on appeal.  However, any disagreement on the effective date was not timely as the December 2010 notice of disagreement specifically identifies the issue being appealed as the initial rating for schizophrenia.  At most, the attorney first indicated his disagreement in July 2013.  See 38 C.F.R. § 20.302 (2017).  Moreover, VA has not given the Veteran the impression that such a claim is on appeal.  See Percy v. Shinseki, 23 Vet. App. 37, 47 (2009).  As such, the issue of entitlement to an effective date prior to January 17, 2007, for the grant of service connection for schizophrenia is not on appeal and will not be further discussed by the Board.

In addition, the Veteran's attorney submitted a June 2017 motion for revision of the October 2010 rating decision (identified by the date of the November 2010 letter notifying the Veteran of the decision) that assigned an effective date for the grant of service connection for schizophrenia on the basis of clear and unmistakable error (CUE).  However, a claim of CUE constitutes a collateral attack on a final determination.  See 38 C.F.R. § 3.105(a).  Here, the motion identifies the October 2010 rating decision currently on appeal; as the decision is not yet final, the Veteran's allegation of CUE is moot and there is no error of fact or law for the Board to consider with regard to this claim.  See 38 U.S.C.A. § 7105.


FINDINGS OF FACT

1.  The Veteran did not have a service-connected disability prior to January 17, 2017.

2.  A permanent and total disability rating was not in effect prior to January 17, 2007.

3.  The Veteran's schizophrenia has not resulted in total occupational and social impairment.


CONCLUSIONS OF LAW

1.  The criteria for an effective date prior to January 17, 2007, for TDIU have not been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.155, 3.400 (2017).

2.  The criteria for an effective date prior to January 17, 2007, for basic eligibility for Dependents' Educational Assistance, Chapter 35 benefits have not been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.400, 21.3020, 21.3021 (2017).

3.  The criteria for an initial rating in excess of 70 percent for schizophrenia have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.126, 4.130, Diagnostic Code 9203 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

I. Effective dates

The Veteran seeks an effective date prior to January 17, 2007, for the grant of a TDIU and basic eligibility to Chapter 35 benefits, Dependents' Educational Assistance.  He contends that the awards should be effective since September 25, 1991; the date the Veteran filed his initial claim for service connection for a psychiatric disability.

Generally, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. 
§ 5110(a) (West 2014); 38 C.F.R. § 3.400 (2017).  For awards of increased compensation, if the evidence demonstrates that an increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation, the increase is effective as of the earliest date the increase in disability was factually ascertainable within that one year prior to the receipt of the claim.  Otherwise, the effective date shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110 (b)(2) (West 2014); 38 C.F.R. § 3.400(o)(2) (2017); Dalton v. Nicholson, 21 Vet. App. 23 (2007); Harper v. Brown, 10 Vet. App. 125 (1997).  As a TDIU claim is treated as a claim for increased compensation, the effective date rules for increased compensation apply.  See Hurd v. West, 13 Vet. App. 449 (2000).

The Board notes that an August 2010 Board decision established service connection for schizophrenia, which was implemented by an October 2010 rating decision that assigned an initial 70 percent rating, effective January 17, 2007.  Based on the 70 percent rating for schizophrenia, the June 2011 rating decision on appeal granted entitlement to a TDIU and found basic eligibility to Dependents' Educational Assistance was established, also effective January 17, 2007.  Prior to January 17, 2007, the Veteran did not have any service-connected disabilities.

With regard to the date of claim, an informal claim for a TDIU was received on June 27, 2011, and a VA Form 21-8940, application for increased compensation based on unemployability was received on July 13, 2011, after the award of a TDIU was granted.  However, a claim for entitlement to a TDIU is also part of a claim for increased compensation when a Veteran's inability to obtain or maintain substantially gainful employment is expressly raised by a veteran or reasonably raised by the record.  Therefore, the Veteran's December 7, 2010, notice of disagreement on the initial 70 percent rating assigned for schizophrenia can also be construed as a claim for a TDIU.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  Based on the above, the earliest date of a claim for a TDIU, pursuant to Rice, is December 7, 2010.  

With regard to the date entitlement arose, the Board notes that even if the evidence of record indicates that the Veteran was unable to obtain or maintain substantially gainful employment due to schizophrenia prior to January 17, 2007, entitlement to a TDIU arose on the date service connection for schizophrenia was established.  See 38 C.F.R. §§ 3.400(o)(2); 4.16(a).  The effective date of a TDIU cannot predate the effective date of service connection for the disability upon which the rating is based.  As discussed above, the upstream issue of whether an effective date prior to January 17, 2007, may be warranted for the grant of service connection for schizophrenia is not on appeal.  Therefore, an effective date prior to January 17, 2007, the date on which the Veteran established service connection for schizophrenia, cannot be granted under the applicable regulations.  

It therefore follows that the Veteran's basic eligibility for Dependents' Educational Assistance arose no earlier than January 17, 2007, the effective date he was found to be totally and permanently disabled due to a service-connected disability.  The Board notes that basic eligibility for certification of Dependents' Educational Assistance under 38 U.S.C.A. Chapter 35 (authorizing education or special restorative training for an eligible person if the applicable criteria are met) is met if the veteran was discharged from service under conditions other than dishonorable and has a permanent total service-connected disability.  38 U.S.C.A. § 3500, 3501 (West 2014); 38 C.F.R. §§ 3.807, 21.3020, 21.3021(a)(iii) (2017).

As the only method of eligibility for Chapter 35 benefits which is relevant to the Veteran is through having a permanent total service-connected disability, the effective date for Dependents' Educational Assistance benefits is directly predicated on the effective date from which VA considered that the Veteran's permanent and total disability commenced for purposes of VA benefits.  See 38 C.F.R. § 21.3021(a)(iii), (p), (r).  In light of the Board's current finding that entitlement to a TDIU arose no earlier than January 17, 2007, an effective date prior to January 17, 2007, for establishing eligibility for Chapter 35 benefits is also not warranted.  See 38 C.F.R. § 3.400(a).

II. Increased rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017).  

Schizophrenia is rated under Diagnostic Code 9203 under the General Rating Formula for Mental Disorders found in 38 C.F.R. § 4.130.  

The Veteran was granted service connection for schizophrenia, paranoid type, and assigned a 70 percent evaluation in the October 2010 rating decision on appeal.  As discussed below, the Board finds the preponderance of the evidence is against a finding that the Veteran's schizophrenia warrants an evaluation in excess of 70 percent during the entire appeal period.  At most, schizophrenia has been manifested by occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood and has not more nearly approximated total occupational and social impairment.  See 38 C.F.R. § 4.7 (2017).  

The evidence of record does not demonstrate that the Veteran's schizophrenia has been manifested by symptoms such as gross impairment in communication, 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, or memory loss for names of close relatives, own occupation, or own name to warrant a 100 percent disability evaluation.  See 38 C.F.R. § 4.130 (2017).  

Rather, a February 2010 examiner found the Veteran to be fully oriented and neatly groomed, with tense psychomotor activity, spontaneous, clear speech, cooperative attitude, intense affect, anxious and depressed mood, paranoia, auditory hallucinations of voices from the television or radio, persecutory delusions, poor but nonviolent impulse control, circumstantial thought processes that were preoccupied with one or two topics, adequate judgment and insight, normal memory, but no obsessive or ritualistic behavior, panic attacks, or suicidal or homicidal ideation.  The Board notes that the February 2010 examination results indicate the Veteran's schizophrenia has resulted in persistent auditory hallucinations and delusional, paranoid thoughts that caused gross impairment in thought processes but finds the overall disability picture does not support a higher rating.  Here, the February 2010 examiner considered the Veteran's persistent hallucinations, referential, paranoid, and delusions thoughts, and preoccupation with gender issues and still concluded that the Veteran's overall disability picture most nearly approximated deficiencies in most areas.  

There is no evidence in significant conflict with the examiner's findings.  A September 2007 VA treatment record indicated the Veteran exhibited coherent but tangential thought, delusional thinking, and difficulty focusing.  Private medical records dated from November 2007 to August 2011 indicate the Veteran was cooperative, with appropriate speech, euthymic mood, sleep impairment, appropriate thought processes, fair insight, and no harm to self at the time of treatment and intermittent auditory hallucinations, delusions, and compulsive thought content.  Although December 2007 and November 2011 private medical records noted schizophrenia was manifested by such symptoms as circumstantial thought process, obsessive thought content, paranoia, delusions, and auditory hallucinations, the symptomatology is consistent with the February 2010 examiner's evaluation.  

Generally, the Veteran has consistently been found to be fully oriented, with adequate hygiene, cooperative demeanor, and intact memory, but no homicidal ideation.  In addition, the records indicate that the Veteran had some social support; at the February 2010 examination, the Veteran reported having a relationship with one cousin and that he pursued recreational activities such as going to the library to read, caring for neighborhood cats, and helping homeless women.  Further, he indicated in a January 2013 VA treatment record that he had one trusted friend and maintained contact with a few other people.

To the extent the Veteran has thought about his own death during this period, the Board finds this alone or in concert with the other symptomatology does not indicate a higher disability rating is warranted.  In September 2007, the Veteran reported to a VA treatment provider that he was terrified of death and did not have any current suicidal ideation, intent or plan.  Additionally, a March 2007 private psychiatric evaluation noted a history of suicide attempts that last occurred about ten years prior.  Although April 2009 private medical records indicate the Veteran received in-patient care due to depression, paranoid and delusional thoughts that people were out to get him, and passive suicidal thoughts with a history of suicide attempts, there was no report of an active plan or intent.  A discharge medical record indicated the Veteran was able to perform personal care, decision-making, and coping skills.  Further, the Veteran reported no current suicidal ideation at the February 2010 VA examination.  Although the Veteran indicated during the course of June 2013 VA treatment that he exhibited suicidal behavior more than one year prior, he denied any current ideation and was noted to have protective factors of positive life satisfaction, planning for the future, and desire to continue getting better.  Overall, the Veteran's passive suicidal ideation during the appeal period is not to the degree that he may be in persistent danger of hurting himself.  

As the preponderance of the evidence is against a finding that PTSD more nearly approximates the criteria for a 100 percent evaluation, a rating in excess of 70 percent is not warranted for the period on appeal.  38 C.F.R. §§ 4.3, 4.7 (2016).  

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).  TDIU has been established throughout the appeal period.



ORDER

An effective date prior to January 17, 2007, for the award of a TDIU is denied.

An effective date prior to January 17, 2007, for basic eligibility for 38 U.S.C.A. Chapter 35 Dependents' Educational Assistance benefits is denied.

An initial evaluation in excess of 70 percent for schizophrenia is denied.




____________________________________________
LANA K. JENG
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs