Citation Nr: 18141163 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-28 211 DATE: October 9, 2018 ORDER The claim of entitlement to an evaluation in excess of 70 percent for schizophrenia is granted. The claim of entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the Veteran’s schizophrenia resulted in symptoms more closely approximating total occupational and social impairment throughout the period on appeal. 2. As the Veteran herein has been granted a 100 percent rating for schizophrenia disorder for the entire rating period on appeal, and schizophrenia is the only service connected disability as is the basis for a grant of TDIU, the issue of entitlement to TDIU is moot. CONCLUSIONS OF LAW 1. The criteria for a 100 percent disability rating for service-connected schizophrenia are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130 Diagnostic Codes 9299, 9205 (2018). 2. The issue of entitlement to a TDIU is moot. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Air Force from December 1971 to July 1974. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU rating is part of an appeal for an increased rating claim when such claim is raised by the record. Here, the Board notes that the Veteran’s attorney raised the issue of TDIU due to schizophrenia in a September 2017 appellate brief, arguing that the Veteran’s service-connected psychiatric condition prevented him from engaging in employment. As such, the Board finds that the record raises a claim for TDIU. 1. The claim of entitlement to an evaluation in excess of 70 percent for schizophrenia Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran contends that he is entitled to a disability rating in excess of 70 percent throughout the period on appeal. After a thorough review of the medical and lay evidence of record, the Board finds that a 100 percent evaluation is warranted. The Veteran’s schizophrenia is rated under Diagnostic Codes 9299-9205, 38 C.F.R. § 4.130. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. In this case, all mental disorders are rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under this formula, a 70 percent rating is warranted when there is 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 work like setting); and an inability to establish and maintain effective relationships. A 100 percent rating is assigned for 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. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). In March 2014, the Veteran’s VA treatment records reflect that his thought processes were disorganized and tangential. The clinician noted that the Veteran was a poor historian and difficult to follow. He reported sleep disturbances, and asked for medication to help with his sleep. The Veteran also reported auditory hallucinations of someone calling his name, and occasionally feeling a touch on his shoulder and head. In the treatment, the Veteran was alert and oriented and cooperative. In November 2014, VA treatment records reflect that the Veteran reported for treatment looking tired and unkempt. Speech was slow, and he focused on his ongoing insomnia. He reiterated ongoing auditory hallucinations, as well as the feeling of a touch on his shoulder and head. He reported only getting approximately 3 hours of sleep per night. Auditory hallucinations, including cries for help, persisted throughout 2015, and into 2016, according to relevant VA treatment records. The Veteran continued to express difficulty with his sleep, and his medications were repeatedly adjusted. He also continued to experience light touching sensations on his shoulder and head. In May 2016, the Veteran’s fiancée wrote a statement endorsing ongoing severe symptomatology associated with the Veteran’s schizophrenia. She reported that the Veteran was socially isolated and his disability caused significant friction in their relationship. He could not cope with disagreements, and experienced serious mood swings that required him to walk away from conflict before getting too upset. The Veteran also reportedly was suspicious of any conversations in which his fiancée engaged if he could not hear the content of the conversation. He accused her of infidelities or talking about him with someone else. Also in May 2016, the Veteran submitted a statement describing his daily symptomatology associated with his schizophrenia. He reported staying home to avoid people. He had little patience, and did not trust others around him. He reported hearing voices and experiencing people touch him, which caused him to get upset. The Veteran endorsed daily delusions that could send him into a panic. The voices and touch sensations caused him to be very anxious, and he would search the house for people. It was reportedly not safe for him to drive as he would be distracted by the delusions. He admitted to becoming disoriented after the delusions, which caused him to “jumble” his sentences. He also endorsed forgetfulness associated with the hallucinations that caused him to miss appointments. In May 2016, the Veteran underwent a VA examination to assess the severity of his schizophrenia. The examiner reported that the Veteran continued to suffer daily positive and negative symptoms of schizophrenia that included hallucinations and depressed mood. He had been married 4 times and had 7 children. He was separated from his fourth wife, but living with his fiancée. The examiner noted that the Veteran had difficult relationships with his adult children and family. He had been a member of a faith organization, but dropped out when people because “nosey.” The Veteran reported primarily staying at home, and a dislike for communicating with people. The Veteran’s symptoms included: depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, circumstantial, circumlocutory or stereotyped speech, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and persistent delusions or hallucinations. After a careful review of the objective medical evidence, the Board finds that the evidence supports a grant of a 100 percent disability evaluation for the Veteran’s schizophrenia. The evidence clearly shows that the Veteran is severely disabled as a result of his service-connected schizophrenia. He experiences persistent, ongoing auditory hallucinations and delusions of something touching his shoulder and head. While the Veteran did not have suicidal or homicidal ideations during the period on appeal, he experienced significant symptoms including disturbances of motivation and mood, depression, circumstantial, circumlocutory or stereotyped speech, and difficulty in establishing and maintaining effective relationships. The Veteran’s VA treatment records reflect that the Veteran struggled with insomnia, and reported for treatment looking tired and unkempt. The Veteran could also be hard to follow, as reported by both a clinician and the Veteran himself. The Veteran’s statement corroborates the more significant symptoms found throughout his medical records, and shows them to be pervasive throughout his day. The delusions cause him confusion and disorientation that makes it unsafe for him to operate a vehicle, increased difficulty communicating, and forgetfulness. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to a total disability evaluation for his service-connected schizophrenia throughout the period on appeal. 2. The claim of entitlement to TDIU With regard to at total rating for compensation purposes based on individual unemployability, the Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280. Notably, such a scenario is not present here, as the primary basis for a grant of TDIU would be the Veteran’s service-connected schizophrenia, which, is the only basis on which the Veteran has argued entitlement to TDIU. Furthermore, the Veteran’s other service-connected disability, diabetes mellitus, is not rated at 60 percent or higher. Therefore, the issue of entitlement to TDIU is moot. M. Donohue Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel