Citation Nr: 18150257 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-50 930 DATE: November 14, 2018 ORDER A 100 percent rating for schizoaffective disorder is granted effective July 19, 1986. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether the Veteran experienced active psychotic manifestations of such extent, severity, depth, persistence, or bizarreness as to produce total social and industrial inadaptability as of July 19, 1986. CONCLUSION OF LAW The criteria for entitlement to an effective date of July 19, 1986, for the grant of a 100 percent rating for schizoaffective disorder have been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400, 4.130, 4.132 (prior to Nov. 7, 1996). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1985 to July 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A July 2004 rating decision granted service connection for schizoaffective disorder and assigned a 30 percent rating effective September 10, 2002. A February 2015 rating decision granted an earlier effective date of July 19, 1986, the day following separation from service, for the grant of service connection, and assigned a 30 percent rating from that date; the Veteran appealed the assigned rating. An April 2016 rating decision granted a 100 percent rating effective August 24, 1998. An April 2016 statement of the case (SOC) (issued concurrently with the April 2016 rating decision) and a May 2016 supplemental SOC (SSOC) denied entitlement to a rating in excess of 30 percent prior to August 24, 1998. However, the Veteran did not file a timely Form 9 substantive appeal and no new and material evidence was received within the appeal period; therefore, the April 2016 rating decision became final as to the 30 percent rating assigned prior to August 24, 1998. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. In other words, entitlement to a rating in excess of 30 percent prior to August 24, 1998, is not on appeal, and is thus not currently before the Board. In May 2016, the Veteran filed a notice of disagreement (NOD) to the April 2016 rating decision regarding the effective date assigned for the grant of the 100 percent rating, and subsequently perfected his appeal of that issue. Accordingly, the issue before the Board is limited to entitlement to an effective date prior to August 24, 1998, for the grant of a 100 percent rating for schizoaffective disorder. Entitlement to an effective date prior to August 24, 1998, for the grant of a 100 percent rating for schizoaffective disorder. Generally, the effective date for the grant of service connection will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service. Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. For claims for an increase in a service connected disability, if an increase in disability 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 claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). The April 2016 rating decision assigned a 100 percent rating effective August 24, 1998, because the Veteran was admitted to a hospital that date for psychiatric treatment, to include for symptoms of paranoid ideation and hallucinations. In other words, the Agency of Original Jurisdiction (AOJ) determined that the evidence demonstrated that the Veteran’s psychiatric symptoms warranted a 100 percent rating as of August 24, 1998. Thus, the question before the Board is whether the Veteran’s psychiatric symptoms demonstrate entitlement to a 100 percent rating prior to August 24, 1998. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The Veteran’s psychiatric disability is rated under Diagnostic Code 9211, which relates to schizoaffective disorder. During the pendency of the Veteran’s appeal, VA promulgated new regulations for the evaluation of schizoaffective disorder. Prior to November 7, 1996, under the General Rating Formula for Psychotic Disorders, a 100 percent rating was warranted for 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 (1995). As of November 7, 1996, a 100 percent rating is assigned when the evidence demonstrates 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 (ADLs) (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, own name. 38 C.F.R. § 4.130. Where a law or regulation changes while a claim is pending, the version most favorable to the veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so. The Board will therefore evaluate the Veteran’s psychiatric disorder under both the pre-and post-November 7, 1996, criteria, keeping in mind that the revised criteria may not be applied to any time period before the effective date of the change. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); VAOPGCPREC 3-2000; VAOPGCPREC 7-2003. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that a 100 percent rating for schizoaffective disorder is warranted effective July 19, 1986. In June 1986, a month prior to discharge, the Veteran was hospitalized due to loss of contact with reality, including such ideas as feeling he was God and that his battalion and company commanders had to answer to him. The Veteran was diagnosed with bipolar disorder, manic, with psychotic features, severe, and impairment was noted as marked. The Veteran was given a medical discharge due to his psychiatric symptoms. 02/15/2015, STR-Medical. In May 1987, the Veteran hospitalized for psychiatric treatment, including complaints of hallucinations and thought processes disrupted secondary to manic state. 10/12/2011, Medical-Government. An August 1998 treatment note reflects that the Veteran had several previous admissions for psychiatric treatment dating back to 1984. 09/30/2002, Medical-Non-Government. A May 1996 treatment note indicates a July 1990 hospitalization for psychiatric treatment and that the Veteran went to jail in August/September 1991 due to manic symptoms. 10/24/2005, Medical-Non-Government. A November 2005 VA examination reflects that from discharge to 1989 the Veteran was unemployed, and that from 1989 to 2004 he worked different jobs for short periods of time, but could not maintain a job due to auditory hallucinations, paranoid delusions with suspiciousness, and mood swings. 11/29/2005, VA Examination. In light of the foregoing, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran experienced active psychotic manifestations of such extent, severity, depth, persistence, or bizarreness as to produce total social and industrial inadaptability as of July 19, 1986. Specifically, the Board notes that the Veteran was experiencing hallucinations immediately prior to discharge and again less than one year later in 1987. Additionally, the record reflects numerous hospitalizations for psychiatric treatment from discharge to August 24, 1998, and the Veteran’s psychiatric symptoms prevented him from maintaining gainful employment during that period. The Board acknowledges that 1996 treatment records may demonstrate that a rating of less than 100 percent is warranted at that time, however, the Board finds that the competent and probative evidence is at least in equipoise as to whether the severity of the psychiatric symptoms were generally consistent throughout the period on appeal. See 38 C.F.R. § 3.344(a) (“Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations.”). Accordingly, a 100 percent rating for schizoaffective disorder is granted effective July 19, 1986, the date following discharge. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel