Citation Nr: 21062108 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-60 907 DATE: October 6, 2021 ORDER Entitlement to a 100 percent disability rating for schizoaffective disorder, effective February 23, 2021, is granted. Entitlement to a 70 percent rating, but no higher, for schizoaffective disorder, effective August 4, 2016, is granted. Entitlement to a total disability rating based on individual unemployability due to schizoaffective disorder (TDIU), effective August 4, 2016, is granted. FINDINGS OF FACT 1. From February 23, 2021, the Veteran's service-connected schizoaffective disorder has more nearly approximated total occupational and social impairment. 2. From the date of claim for an increase, August 4, 2016, the Veteran's service-connected schizoaffective disorder resulted in occupational and social impairment with deficiencies in most areas. 3. From August 4, 2016, the Veteran's service-connected schizoaffective disorder has rendered him unable to secure and follow a substantially gainful occupation. . CONCLUSIONS OF LAW 1. The criteria for a disability rating of 100 percent for schizoaffective disorder, effective February 23, 2021, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9211. 2. The criteria for a 70 percent disability rating, but no higher, effective August 4, 2016, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.321, Part 4, including §§ 4.7, 4.130, Diagnostic Code 9211. 3. The criteria for a TDIU, effective August 4, 2016, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 29, 1977 to October 28, 1983 and from July 16, 1984 to May 21, 1985. This matter comes before the Board of Veterans' Appeals(Board) on appeal from a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). On February 23, 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In June 2021, the Board remanded this case for further development. The Board finds that there has been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Moreover, the Board recognizes that entitlement to a TDIU was also denied in the December 2016 rating decision and the Veteran's notice of disagreement did not explicitly appeal this issue; rather he sought a 100 percent disability rating. Nevertheless, the Veteran has continued to assert that he cannot work due to his service-connected schizoaffective disorder. Importantly, a TDIU claim is a potential part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). Thus, given the Veteran's ongoing assertions as well as the medical evidence of his inability to work, the Board will consider the issue of entitlement to a TDIU as part and parcel of the increased rating claim. In the July 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted a maximum 100 percent rating for the Veteran's schizoaffective disorder, effective July 23, 2021. However, as the AOJ did not grant a maximum rating throughout the course of the appeal, the issue of an increased rating prior to July 23, 2021 remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 39 (1993). Entitlement to an increased rating for schizoaffective disorder prior to July 23, 2021, to include entitlement to a TDIU The Veteran is seeking an increased rating for his schizoaffective disorder prior to July 23, 2021. At the Board hearing, the Veteran, through his representative, asserted that his symptoms warranted at least a 70 percent disabling rating. The Veteran also testified that he was not working due to his schizoaffective disorder. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). As in the instant case, where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's schizoaffective disorder is evaluated under Diagnostic Code 9211, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Pursuant to that General Rating Formula, a 50 percent evaluation is warranted for 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. Id. The next-higher evaluation of 70 percent is warranted for 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); inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when there is 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126 (a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. 38 C.F.R. § § 4.16 (a). Although the Veteran may be unemployed, the dispositive issue is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16 (a); supra. In determining whether an appellant is entitled to a TDIU, neither the Veteran's nonservice-connected disabilities nor may advancing age be considered. Initially, based on the evidence of record and when resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran is entitled to a maximum 100 percent disability rating for his service-connected psychiatric disability from the date of the Board hearing, February 23, 2021. Significantly, at the February 2021 Board hearing, the Veteran testified that his psychiatric condition was deteriorating. Specifically, he described concentration issues and problems functioning. He also described an inability to work as well as homelessness due to his symptoms. Subsequently, the Veteran was afforded a VA examination in July 2021, five months after his hearing. The examiner confirmed that the Veteran's symptoms had worsened and opined that he had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, which is the criteria for a 70 percent rating. However, the examiner also noted such symptoms as persistent delusions and hallucinations as well as an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, which is criteria for a 100 percent rating. The examiner also observed that toward the end of the examination, the Veteran's responses were illogical and irrelevant. Based on these findings, the AOJ awarded a 100 percent rating from the date of the VA examination. Thus, considering the Veteran's hearing testimony indicating an increase in severity of his symptoms as well as the subsequent VA examination report confirming such worsening, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that he met the criteria for a 100 percent rating as of the date of the Board hearing, February 23, 2021. Moreover, prior to this date, the Board finds that the Veteran's schizoaffective disorder more nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, to warrant a 70 percent rating. The December 2016 VA examination noted that the Veteran denied any significant relationships. He also denied any hobbies or activities as they took too much effort. He also stated that he stayed away from large crowds, family and friends. Although the examiner found that the Veteran exhibited occupational and social impairment with reduced reliability and productivity, which is the criteria for a 50 percent rating, the examiner also found that the Veteran had an inability to establish and maintain effective relationships, which is listed under the criteria for a 70 percent rating. The examiner also observed that the Veteran revealed subtle fixed delusions of paranoia concerning the workplace. In light of the social and occupational impairment described above, the Board finds that a 70 percent rating is warranted from the date of the claim for an increased rating, August 4, 2016. However, there is no evidence during this period to show that the Veteran exhibited total social and occupational impairment to warrant a higher evaluation of 100 percent. Importantly, the December 2016 VA examination showed that the Veteran was alert and fully oriented; his thought processes and communications were not grossly impaired; and his speech was normal. The Veteran did not exhibit grossly inappropriate behavior. Further, there was no medical evidence of a persistent danger to hurting self or others. He denied suicidal and homicidal intent. Moreover, there was no memory impairment. Importantly, the examiner clearly found that the Veteran's mental status did not compromise his ability to complete activities of daily living without assistance. The Veteran did not seek any psychiatric treatment during this period. Thus, based on the evidence of record, the first evidence of any increase in severity was the February 23, 2021 Board hearing. Moreover, the Board finds that it was not factually ascertainable one year prior to the date of claim, August 4, 2016, that the Veteran met the criteria for a higher rating. In this regard, there is no lay or medical evidence addressing the severity of his schizoaffective disorder during this period. Thus, the appropriate effective date for the increase to 70 percent is August 4, 2016. With the grant of a 70 percent rating, herein, the Veteran meets the schedular criteria for a TDIU as of August 4, 2016. 38 C.F.R. § 4.16 a). The record shows that he last worked in June 2016. Importantly, the Veteran has consistently reported that he was unable to work during this period due to his psychiatric symptoms described above. He has also reported being socially isolated. Further, the VA examination showed that the Veteran had an inability to establish and maintain effective relationships and fixed delusions of paranoia concerning the workplace. The VA examiner also found that the Veteran would be markedly impaired in a work environment that required driving; and moderately to markedly impaired in a work environment that required the ability to sustain concentration and focus normally. When considering the totality of the functional impairment caused by his service-connected schizoaffective disorder as described by the lay and medical evidence of record, as well as taking into consideration his work history, education and experience, and when resolving all doubt in his favor, the Veteran would be precluded from substantially gainful employment due to his service-connected schizoaffective disorder from August 4, 2016 and, thus, a TDIU is warranted from that date. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his schizoaffective disorder. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Moreover, the Board has contemplated the Veteran's statements concerning the severity of his symptoms when assigning the 70 percent and a TDIU from the date of claim, August 4, 2016; and the current 100 percent disability rating, effective February 21, 2021. In conclusion, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that a 100 percent disability rating for schizoaffective disorder from February 23, 2021; a 70 percent disability rating, but no higher, from August 4, 2016; and a TDIU from August 4, 2016, is granted. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.