Citation Nr: 1756904 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 09-20 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for paranoid schizophrenia (previously substance induced psychotic disorder/cocaine dependency), prior to May 29, 2014. 2. Entitlement to special monthly compensation (SMC) benefits based on the need for aid and attendance prior to March 22, 2016. REPRESENTATION Appellant represented by: Douglas E. Sullivan, Attorney at Law ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from May1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2013 and August 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The increased rating issue for paranoid schizophrenia was certified to the Board as an appeal for an earlier effective date for the award of a 100 percent rating, which is effective May 29, 2014. However, a review of the claims file shows that the RO awarded service connection for this disability in an April 2013 rating decision. An initial 30 percent rating was assigned effective from December 4, 2006. The Veteran filed a notice of disagreement (NOD) in April 2013 disagreeing with the disability rating assigned. The 100 percent rating was assigned in a May 2014 rating decision (with notice sent to the Veteran in July 2014). That 100 percent award did not resolve the appeal as it was not made effective since December 4, 2006, when service connection went into effect. AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014). A statement of the case (SOC) was not expressly issued addressing the increased rating issue. However, another SOC is not needed as the RO issued an SOC in June 2017 adjudicating the "earlier effective date" issue. This is essentially the same issue stylized in a different manner. As the Board is granting the claim in full, as adjudicated in the June 2017 SOC, there is no prejudice to the Veteran in proceeding without an SOC specifically on the increased rating issue. See Archbold v. Brown, 9 Vet. App. 124, 132 (1996). Likewise, the claim for aid and attendance benefits was certified as an appeal for an earlier effective date. However, VA has a duty to maximize benefits. See Bradley v. Peake, 22 Vet. App. 280 (2008). As such, even though the Board referred the claim in April 2016, on further reflection, that issue is considered part and parcel of the increased rating claim. The Board has, therefore, recharacterized the issue as a direct entitlement issue instead of an earlier effective date issue. An SOC was not expressly issued, but his is again nonprejudicial as the Board is granting the maximum benefit allowable and the issues are essentially the same. In October 2012, the Veteran has a Board hearing before a now-retired Veterans Law Judge in the context of an aid and attendance issue. In November 2017, the Veteran withdrew his most recent prior request for a Board hearing. See 38 C.F.R. §§ 20.700, 20.702(e), 20.704(e). In November 2017, the Veteran submitted duplicate evidence for consideration. A waiver is not needed. See 38 C.F.R. § 20.1304(c). FINDINGS OF FACT 1. Throughout the appeal period since October 4, 2006, the Veteran was totally occupationally and socially impaired due to paranoid schizophrenia. 2. The Veteran raised a claim for SMC based on aid and attendance in connection with his October 4, 2006 claim for an increased rating for paranoid schizophrenia, and he needed the assistance of another person in managing his medications to function in his daily environment since then. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial 100 percent disability rating for paranoid schizophrenia are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9201, 9203, 9210 (2017). 2. The criteria for the award of SMC based a need for regular aid and attendance of another person have been met since December 4, 2006. 38 U.S.C. §§ 1114, 1521, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Increased Rating The Veteran is seeking a higher initial rating for paranoid schizophrenia. The RO granted service connection for this disability in an April 2013 rating decision. The RO assigned an initial 30 percent disability rating effective December 4, 2006. The RO noted that the disability had previously been characterized as substance induced psychotic disorder/cocaine dependency. The appeal period now before the Board begins from December 4, 2006, when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). A. Applicable Law Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Evaluations of mental health disorders, such as the Veteran's service-connected paranoid schizophrenia, are assigned under the provisions of 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. Schizophrenia is presently listed under DC 9201, while paranoid schizophrenia was listed under DC 9203 prior to August 4, 2014. Presently, specified schizophrenia spectrum and psychotic disorders are listed under DC 9210. They each have the identical rating criteria as set forth below. General Rating Formula for Mental Disorders: 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 100 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 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 worklike setting); inability to establish and maintain effective relationships 70 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 (e.g., 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 50 Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) 30 Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication 10 A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication 0 B. Discussion In this case, the Board finds that the 100 percent disability rating is warranted throughout the appeal period beginning from when service connection was granted in December 2006. The RO awarded the 100 percent disability rating from May 29, 2014, based on the results a VA examination conducted on that date. An effective date for an increased rating should not be assigned mechanically based on the date of an examination. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); accord Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014); see also Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); VAOPGCPREC 12-98. Here, the May 2014 VA examiner found that the Veteran had symptoms, including being sleepy a lot due to medication; had paranoia, suspiciousness, depressed mood, anxiety; auditory hallucinations and mind wandering when not on medication; plus, he saw his psychiatrist twice per month and therapist once per month. The 100 percent disability rating was assigned based on this VA examination. Therefore, it is not in material dispute that the Veteran manifested the 100 percent disability level by at least that time. See Murphy, 26 Vet. App. at 513. What the May 2014 VA examiner did not discuss, but which is especially important, is highlighted in an August 2014 private medical record. It notes that the Veteran's mother made sure that he took his medication, and she took care of him. (She had developed dementia by that time, so the Veteran had a paid caretaker to take care of him every day. The caretaker helped him keep up his hygiene, take medication, take him places, and pay his bills.) At an earlier Board hearing in October 2012, the Veteran likewise testified that he had lived with his mother for 19 years, and she "cook[s] and make[s] sure I take my medicine, and she tr[ies] to isolate me." Board Hr'g Tr. 6. A private report from March 2013 also notes that the Veteran's limitations included an inability to care fully for himself without supports. A private follow-up report from June 2013 again notes that the Veteran was totally dependent on his mother for his residence, support, transportation and oversight, so he was considered dependent on others for all of his basic needs. This was considered his baseline for behavior and symptoms. The Veteran reported at that time that his mother was talking to SSA about an aide, but he did not know the specifics of that discussion. In September 2013, a private report describes an incident where the Veteran's mother had gone away for a short time. The Veteran had struggled to remember to take his medication, to prepare meals, and to eat. In a DBQ from that same day, the private provider noted that the Veteran needed medication management: his elderly mother organized and administered all of his medication. He also needed assistance managing his own financial affairs: his elderly mother received his disability checks and managed his finances. The fact that the Veteran's mother made sure he took his medication is important because it shows an inability to perform activities of daily living, which supports assignment of the 100 percent disability rating. Moreover, this level of functioning was consistent throughout the appeal period. As summarized in a September 2007 VA examination, there had been no major change in the Veteran's functioning since he developed the mental condition. Several earlier medical reports indicate a higher level of functioning due to the Veteran's symptoms being controlled on medication. However, they did not account for the fact that the Veteran's symptoms would not have been controlled on medication but for his mother ensuring that he took his medication. For instance, a private Disability Benefits Questionnaire (DBQ) in August 2007 notes that the Veteran was competent and able to protect himself in the daily environment. The DBQ states that the Veteran "has chronic emotional illness and when maintained on medication is competent and able to function in daily environment." (Emphasis added.) Similarly, a September 2007 VA examiner found that the Veteran's "symptoms are not enough to interfere with social and occupational functioning and to require continuous medication." (This same VA examiner called into question the diagnosis of paranoid schizophrenia. For purposes of this appeal, that diagnosis is not in question, and the VA examiner's opinion on the correctness of the diagnosis is nonconsequential.) In January 2010, a private provider wrote a supporting letter explaining that the Veteran had a chronic emotional illness that required maintenance medication to allow continued meaningful functionality in the community. A May 2013 VA (aid and attendance) examination also notes that the Veteran's paranoid schizophrenia was well controlled with no uncontrolled psychotic features. A private note from December 2013 notes that the Veteran was doing "pretty well" if he took his medication and stayed inside the house. This evidence might indicate that the Veteran was not functioning at the 100 percent disability level prior to May 29, 2014. However, none of these records account for the fact that the Veteran's mother needed to manage his medication without which he would manifest a clear 100 percent disability level. The Board recognizes that the General Rating Formula for Mental Disorders contemplates symptoms controlled by medication at the 10 percent level. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Here, however, the 100 percent disability level is warranted not because his symptoms were controlled on medication, but because his medication had to be managed by his mother, which is consistent with an inability to perform activities of daily living, which in turn indicates a persistent danger of hurting himself (assuming that he would be harming himself by not taking his medication). This fact is consistent with a 100 percent disability picture throughout the appeal period as he depended on others to maintain his daily functioning. Moreover, even with the Veteran's medication, a total occupational and social impairment is demonstrated with some of the 100 percent disability level symptoms manifesting. For instance, a private consultation in March 2013 found delusional thinking, history of being violent, and moderate hallucinations. Later in March 2013, the Veteran reported taking a hammer to his television because he saw a white dot, which he thought was a camera. He had delusions, paranoid thought content, and auditory hallucinations. Even earlier, in August 2007, his private doctor wrote that the Veteran described thought broadcasting. Similar symptomatology is described throughout the medical records. With regard to his occupational functioning, the September 2007 VA examiner found that the effect the symptoms had upon total daily functioning is that he could not keep jobs very long because he got frustrated taking orders. Similarly, at a September 2007 private evaluation, it was noted that the Veteran was unsuccessful in his attempts to work in civilian life, frequently forgetting to do things that were assigned, causing him to be fired. With regard to his social functioning, an October 2012 VA Mental Health assessment notes the Veteran's report that his biggest problem was that he was not trusting of most other people and was generally suspicious. He lived with his mother, and they got along, but he preferred to keep his distance, even from her. He mostly kept to himself because he often felt that other people may try to cause him harm. He spent most days lying in bed. In September 2013, it was noted that the Veteran's son stayed with him while his mother was away. Aside from these instances, there is no evidence indicating that the Veteran had any social contacts other than his mother and son. Accordingly, a total social and occupational impairment is demonstrated throughout the appeal period, particularly when reasonable doubt is resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Thus, the 100 percent rating is assignable. As a final matter, the Board notes that some evidence indicates a mild mental retardation affecting the Veteran's functioning. Specifically, an August 2007 letter from the Veteran's private treating psychiatrist notes a "mild mental retardation." (This term is now outdated; the DSM 5 classifies such a disability as an "intellectual disability (intellectual developmental disorder)." See Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)). Generally, a "mental deficiency" as such is not a disease within the meaning of VA legislation. See 38 C.F.R. § 3.303(c). Here, the diagnosis is immaterial as the effects of that nonservice-connected condition have not been separated from the service-connected paranoid schizophrenia. Consequently, the Board has attributed all symptomatology to the service-connected paranoid schizophrenia. See Mittleider v. West, 11 Vet. App. 181 (1998). In conclusion, when reconciling the various medical reports into a consistent picture, it is found that the Veteran's disability picture is most consistent with a 100 percent disability level throughout the appeal period. This is an appeal of the initial ratings assigned, which means that a higher rating may not be assigned any earlier than December 4, 2006, which is the effective date for the award of service connection in this case. See, e.g., Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (discussing 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2)). Thus, the benefit sought has been granted in full. II. Aid and Attendance The Veteran is also seeking an earlier effective date for the award of aid and attendance benefits. The RO awarded this benefit in an August 2016 rating decision effective from March 22, 2016, based on "the date facts found." The RO did not discuss the specific evidence supporting this award. However, it cited a VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, completed on March 22, 2016. As mentioned in the introduction section herein above, the issue is on appeal. The Board previously noted in a January 2013 remand that a claim for aid and attendance benefits was raised at an October 2012 Board hearing in connection with the pending appeal for an increased rating for paranoid schizophrenia. (At that time, an appeal for special monthly pension (SMP) based on the need for regular aid and attendance was perfected and before the Board.) Thus, the issue was reasonably raised during the course of that appeal. In light of VA's duty to maximize benefits, the claim for aid and attendance benefits, having been raised in connection with the increased rating claim, became part and parcel of that claim, which was filed December 4, 2006. See Bradley, 22 Vet. App. 289-95; see also, e.g., Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Moreover, aid and attendance for SMC purposes is the greater benefit compared to SMP purposes. In view of the outcome of the decision below, the SMP issue is now moot. A. Applicable Law SMC based on the need for aid and attendance of another is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). As directed by 38 C.F.R. § 3.352 (a), the following criteria are to be considered for determining whether a claimant is in need of the regular aid and attendance of another person: (1) the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid (not to include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (3) the inability of the claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222, 224 (1996) (it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present"). Furthermore, the performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 CFR § 3.352(c). B. Discussion As discussed herein above, the Veteran needed the assistance of another person to manage his medications. The Veteran's mother took care of him, including by ensuring that he took his medication. Without that aid, as described in September 2013, the Veteran struggled to remember to take his medication, prepare meals, and to eat. When his mother became unavailable due to disability in August 2014, that same level of care required a paid caretaker. This evidence shows that the Veteran was so helpless as to be in need of regular aid and attendance. This is factually ascertainable throughout the appeal period. In summary, the Board finds, after resolving all reasonable doubt in the Veteran's favor, that SMC based on aid and attendance are warranted throughout the appeal period since December 4, 2006. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The appeal of this issue is granted in full. ORDER An initial 100 percent disability rating for paranoid schizophrenia is granted. SMC based on aid and attendance is granted from December 4, 2006. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs