Citation Nr: 1812366 Decision Date: 02/28/18 Archive Date: 03/08/18 DOCKET NO. 14-13 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial disability rating in excess of 50 percent prior to September 16, 2008 and in excess of 70 percent prior to December 28, 2011 for service-connected schizoaffective disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1987 to September 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Appeals Management Center (AMC). Jurisdiction remains at the Regional Office (RO) in Houston, Texas. Historically, in a December 2010 rating decision, the RO effectuated the Board's December 2010 decision and granted service connection for schizoaffective disorder rated at 50 percent, effective September 8, 2003, and 70 percent, effective January 28, 2010. Notification of that rating decision was sent on December 27, 2011. Thereafter, on December 28, 2011, the Veteran filed a claim for an increased rating based on unemployability. See December 2011 Application for Increased Compensation Based on Unemployability. In November 2012, the RO treated that request as a new claim and granted a 100 percent rating effective December 28, 2011. See November 2012 Rating Decision. Significantly, however, the Board notes that, pursuant to 38 C.F.R. § 20.305, the Veteran's claim for increase is presumed to have been received within one year following the date of notice of the denial. Accordingly, the Board views that document as a notice of disagreement rather than a new claim and, therefore, the rating decision on appeal is the December 2010 rating decision. See 38 C.F.R. §§ 20.1100, 20.1103 (2017). In light of the foregoing, the Board has restyled the issue on the title page as one for an initial increased rating claim, rather than an earlier effective date claim. The Board is careful to note that no prejudice to the Veteran will result from styling the claim in this manner. In the November 2012 rating decision, the RO granted a 100 percent rating for schizoaffective disorder effective December 28, 2011. As that increase did not constitute a full grant of the benefit sought for the entire appeal period, the Veteran's claim for an increased rating for schizoaffective disorder prior to December 28, 2011, remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Finally, the record reflects that the Veteran requested a hearing before the Board in this matter. See April 2014 VA Form 9, substantive appeal. Such a hearing was scheduled for November 2016. The day before the hearing, the Veteran was contacted by telephone to remind him of the scheduled hearing. He responded that he did not wish to attend the hearing and the RO staff was unable to ascertain whether he wished to reschedule the hearing. See November 2016 VA Form 27-0820, Report of General Information. In December 2016, the Veteran requested that his hearing be scheduled noting that he had been off his medication the prior month. The Board has considered the request for a new hearing, but in light of the fully favorable decision below, finds that the Veteran is not prejudiced in proceeding to the adjudication of his claim. FINDING OF FACT For the entirety of the appeal period, the evidence is at least in equipoise as to whether the Veteran's schizoaffective disorder was productive of total occupational and social impairment. CONCLUSION OF LAW For the entirety of the appeal period, the criteria for an initial 100 percent rating for schizoaffective disorder have been met. 38 U.S.C. §§ 1155, 5107(b), 5110 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9211 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C. §§ 5103 , 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the Board's decision herein is a full grant of the benefit sought on appeal, no further action is required to comply with the VCAA. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran's schizoaffective disorder, like all psychiatric disorders, is rated under the General Rating Formula for mental disorders. Under the General Rating Formula, a 50 percent rating is warranted for a mental disorder that results in 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; and difficulty in establishing and maintaining effective work and social relationships. A rating of 70 percent is warranted for a mental disorder that results in 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 inability to establish and maintain effective relationships. A 100 percent rating is assigned when the condition results in 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. Importantly, evaluations under § 4.130 are symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. The Board notes however that the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating and are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. Global Assessment of Functioning (GAF) scale scores are based on a scale indicating the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Carpenter v. Brown, 8 Vet. App. 240 (1995); Richard v. Brown, 9 Vet. App. 266 (1996); American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, 4th Ed. (1994) (DSM-IV). The GAF score is based on all of the Veteran's psychiatric impairments. A GAF score of 21 to 30 indicates behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). A GAF score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51 to 60 represents moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with coworkers). While particular GAF scores are not contained in the VA schedule of ratings for mental disorders, they are a useful tool in assessing a veteran's disability and assigning ratings. 38 C.F.R. § 4.130 (2017). However, they are just one of many factors considered when determining a rating. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran is currently assigned an initial disability rating of 50 percent, prior to September 16, 2008, and 70 percent, prior to December 28, 2011, for his service-connected schizoaffective disorder. However, the Veteran's representative, by and on behalf of the Veteran, contends that he is entitled to a 100 percent rating dating back to the original date of claim, September 8, 2003. See January 2018 Appellate Brief. After a thorough review of the record and the legal criteria above, the Board agrees that a higher 100 percent rating is warranted for the entirety of the appeal period. In relevant part, in November 2003 and June 2004, the Veteran's treating physician indicated that the Veteran had a current diagnosis of schizoaffective disorder, depressed type with psychotic symptoms consisting of auditory hallucinations and paranoia. The physician indicated further that as result of this disorder the Veteran had pronounced industrial impairment and would likely need to be followed closely by psychiatry for many years. In December 2006, the Veteran was psychologically evaluated by an attending physician. The physician noted symptomatology consisting of disorganized thought process with loose associations, pressured speech, auditory hallucinations, and paranoid and grandiose delusions. The physician indicated that the Veteran had very severe schizoaffective disorder and assigned a GAF score of 30. VA Medical Center (VAMC) records also indicate that, from September 2003 through the remainder of the appeal period, the Veteran suffered from psychotic symptomatology consisting of auditory and visual hallucinations, suicidal and homicidal ideations, anger and irritability, paranoia, depression, impaired judgment, and panic attacks. The Veteran's GAF scores ranged from 35 to 60. Moreover, in January 2010, the Veteran's schizoaffective disorder was assessed by a VA examiner. The examiner found symptomatology consisting of loud/slow speech, hostile/contemptuous attitude, constricted affect, labile mood, anxiousness, suicidal/homicidal ideations, variable judgment, fair to poor insight, persistent auditory/visual hallucinations, inappropriate behavior, panic attacks, inability to maintain personal hygiene, and moderate difficulties with activities of daily living. The examiner assessed the Veteran with a GAF score of 40 and indicated that the Veteran had been unable to work or interact consistently or appropriately with others for several years. Based on the foregoing, the Board concludes that, for the entire period on appeal, the Veteran's disability picture more nearly approximates the criteria for assigning a higher 100 percent rating. In relevant part, the evidence of record has demonstrated symptomatology consisting of persistent delusions or hallucinations, grossly inappropriate behavior, persistent suicidal and homicidal ideations, difficulties in performing activities of daily living, and inability to maintain personal hygiene. Furthermore, as indicated by the January 2010 VA examiner, such symptomatology has resulted in the Veteran's inability to work or interact with others for several years. In addition, the assigned GAF scores ranging from 30 to 60 indicate symptomatology ranging in severity from inability to function to moderate. While such scores are not determinative by themselves, the Board finds that taken together with the other evidence of record, the type, frequency, and severity of the Veteran's symptoms reflect total occupation social and occupational impairment. See Mauerhan, 16 Vet. App. at 443. In sum, after resolving any benefit of the doubt in favor of the Veteran, the Board finds the evidence is at least in equipoise as to whether an initial schedular rating of 100 percent is warranted for schizoaffective disorder during the entirety of the appeal period. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board acknowledges the Veteran contention that he is unemployable as a result of his schizoaffective disorder. See December 2011 Veteran's Application for Increased Compensation Based on Unemployability. Such contention raises the issue of whether the Veteran is entitled to a total disability rating based on individual unemployability (TDIU) pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Nevertheless, the Board finds that as a result of the 100 percent rating awarded for schizoaffective disorder, the issue of a TDIU is rendered moot. See 38 C.F.R. § 4.16(a). ORDER An initial 100 percent disability rating for schizoaffective disorder is granted for the entirety of the appeal period, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs