Citation Nr: 18155045 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-50 986 DATE: December 4, 2018 ORDER An effective date earlier than September 17, 2013, for the award of a 100 percent evaluation for schizoaffective disorder is denied. A permanent 100 percent evaluation for schizoaffective disorder is denied. FINDINGS OF FACT 1. The Veteran’s informal claim for an increased evaluation for schizoaffective disorder was received on September 17, 2013. It was not ascertainable that the disorder had increased in severity in the preceding year. 2. Schizoaffective disorder is not actually totally incapacitating and permanent improvement under treatment is not remote. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than September 17, 2013, for the award of a 100 percent evaluation for schizoaffective disorder have not been met. 38 U.S.C. §§ 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017) 2. The criteria for entitlement to permanence of the total disability evaluation for service-connected schizoaffective disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.340 (b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to August 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Additional evidence has been associated with the claims file since the last RO adjudication in October 2016. This evidence is cumulative of the evidence already of record, or it is not pertinent to the issues on appeal. Therefore, RO consideration of the evidence in the first instance is not necessary and the Board can proceed with adjudication of the case on the merits. Neither the Veteran nor his representative have 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). Effective Date 1. An effective date earlier than September 17, 2013, for the award of a 100 percent evaluation for schizoaffective disorder. The Veteran seeks an effective date earlier than September 17, 2013, for the award of a 100 percent evaluation for service-connected schizoaffective disorder. The Veteran initiated his electronic application for an increased evaluation on September 17, 2013, and submitted the application September 16, 2014. The Veteran contends the benefit should be retroactive to the date of discharge. The Veteran’s schizoaffective disorder manifests in part by his having auditory hallucinations in which he hears voices. Generally, the effective date for the grant of service connection based on an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5100(b)(1) (2012); 38 C.F.R. § 3.400(b) (2017). Effective dates assigned as part of the initial award of service connection, i.e. “initial evaluations,” are considered to belong in this category. The effective date of a claim for an increased evaluation, which the present claim is, “will be the date of receipt of the claim or the date entitlement arose.” 38 C.F.R. § 3.400(o)(1). The effective date of an award of increased compensation, however, can be the earliest date as of which it was ascertainable that an increase in disability has occurred, if the application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). See Hazan v. Gober, 10 Vet. App. 511 (1997). Consequently, the award of an increased rating should normally be effective either on the date of receipt of the claim or on some date in the preceding year if it was ascertainable that the disorder had increased in severity during that time. If the increase occurred more than one year prior to the date of claim, the increase is effective the date of the claim. Gaston v. Shinseki, 605 F. 3d 979 (Fed. Cir. 2010). Prior to March 24, 2015, a claim was a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2013). When a claim has been filed which meets the requirements of § 3.151, an informal request for increase will be accepted as a claim. 38 C.F.R. § 3.155 (c). As noted above, the Veteran’s electronic application was initiated September 17, 2013. This indicates an informal intent to apply for benefits. The application was received within one year of the September 2013 date. Accordingly, the Board deems September 17, 2013, date as the date the claim was filed for an increase in the evaluation. Next, the Board reviews whether it can factually be found in the year prior to the date of claim that the disability increased in severity. The Veteran’s representative argues that there was medical indication that the severity of the Veteran’s schizophrenia was greater than the 10 percent previously granted, and that based on the years of medication taken to deal with severe daily symptoms, there is sufficient evidence of an increase being warranted prior to September 2013. See September 2018 Appellate Brief. The evidence of record for the period from September 17, 2012 to September 17, 2013, does not show a factually ascertainable increase in severity. There are no VA or private treatment records from that time period that describe his psychiatric symptoms. There is also no lay evidence discussing that period. The Board finds that, without evidence from within the year prior to September 2013, or subsequent evidence providing credible description of the symptoms during that time, it cannot find it factually ascertainable that an increase in severity took place specifically during the period from September 2012 to September 2013. The Veteran’s representative states that they are “sure” there is medical evidence noting a gradual increase of symptoms and prescribed medications. This may be so, but it is not from the period from September 17, 2012, to September 17, 2013. Even though the Veteran reports he always experienced delusions and hallucinations, the evidence does not show that they increased in severity between September 17, 2012, to September 17, 2013. Thus, it is not factually ascertainable that there was an increase in severity during the year prior to the initiation of the claim. Since there is little evidence in this regard, the Board cannot find that an earlier effective date is warranted within the one year period prior to the date of claim. 2. A permanent 100 percent evaluation for schizoaffective disorder. The Veteran seeks a permanent total evaluation for his service-connected schizoaffective that is currently rated as 100 percent disabling. He contends that his schizoaffective disorder symptoms have persisted despite years of treatment, will not improve over time, and are reasonably certain to continue throughout his life. A permanent total disability exists where “impairment is reasonably certain to continue throughout the life of the disabled person.” 38 C.F.R. § 3.340 (b). Diseases and injuries of long standing which are “actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote.” 38 C.F.R. §§ 3.340 (b), 4.15 (2017). The age of the disabled person may be considered in determining permanence. Here, the Board finds the Veteran’s schizoaffective disorder is long standing in nature, however, the disorder is not actually totally incapacitating. Furthermore, the probability of permanent improvement under treatment is not remote. In considering the language of a regulation, its words must be given “their ‘ordinary, contemporary, common meaning,’ absent an indication Congress intended them to bear some different import.” Williams v. Taylor, 529 U.S. 420, 431, 120 S. Ct. 1479, 146 L. Ed. 2d 435 (2000) (quoting Walters v. Metropolitan Ed. Enterprises, Inc., 519 U.S. 202, 207, 117 S. Ct. 660, 136 L. Ed. 2d 644 (1997)). “Total” is “defined as comprising or constituting a whole” or “absolute, utter.” Merriam-Webster’s Collegiate Dictionary 1320 (11th ed. 2012). “Incapacity” is defined as “the quality or state of being incapable; esp: lack of physical or mental power or of natural or legal qualifications.” Id. at 628. It is reasonable to state that “totally incapacitating” means that the disability causes whole or utter powerlessness. As to the lack of total incapacitation, the January 2015 VA examination showed occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, 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. The examiner also noted the Veteran’s marriage, lack of friends, poor relationship with his son, and history of working for 20 years at the post office, resigning due to stress. Similarly, the August 2015 VA examination report noted symptoms of anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, circumstantial, circumlocutory, or stereotyped speech, speech intermittently illogical, obscure, or irrelevant, impaired judgment, impaired abstract thinking, 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, inability to establish and maintain effective relationships, impaired impulse control, such as unprovoked irritability with periods of violence, persistent delusions or hallucinations, neglect or personal appearance and hygiene, and intermittent inability to perform activities of daily living. The examiner opined these symptoms result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Because of the low degree of impairment opined by both of these examiners, the Board concludes that the severity of the symptoms reported in these examinations was deemed to be not totally incapacitating. The Board’s conclusion is supported by VA treatment records, which generally show no impairment and little symptomatology, except for the reports of auditory hallucinations and difficulty sleeping. The Veteran has not provided a lay statement of his symptoms. Thus, the Board cannot conclude that the Veteran is actually totally incapacitated. His functioning is clearly impaired due to his psychiatric symptoms, but not to the level that he is wholly and utterly mentally or physically powerless. With respect to improvement, treatment notes show that the Veteran has reported that medication improves the auditory hallucination. See March 2016 VA treatment record. Accordingly, the Board finds that improvement under treatment cannot be said to be remote. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Rocktashel, Counsel