Citation Nr: 21071273 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-36 808 DATE: November 30, 2021 ORDER Entitlement to a 100 percent initial evaluation for schizoaffective disorder prior to May 26, 2020, is granted. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is denied FINDINGS OF FACT 1. Prior to May 26, 2020, the symptoms of the Veteran's schizoaffective disorder have more closely approximated the criteria for total occupational and social impairment. 2. The Veteran has been assigned a 100 percent evaluation for schizoaffective disorder throughout the appeal period, and a single service-connected disability other than schizoaffective disorder does not render him unable to secure or follow a substantially gainful occupation CONCLUSIONS OF LAW 1. The criteria for a 100 percent initial evaluation for a schizoaffective disorder prior to May 26, 2020, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.130, Diagnostic Code 9211. 2. The criteria for TDIU have not been met. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16; Bradley v. Peake, 22 Vet. App. 280, 293 (2008); Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from March 1992 to November 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for a depressive disorder not otherwise specified (NOS) and assigned a 30 percent evaluation effective from September 29, 2011. The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2017. A transcript is of record. The Board remanded the case remanded for further development in August 2018. That development was completed, and the case has since been returned to the Board for appellate review. During the pendency of the appeal, in a July 2020 rating decision, the RO increased the evaluation for the Veteran's schizoaffective disorder (previously rated as depressive disorder NOS) to 100 percent effective from May 26, 2020. Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue of entitlement to an increased evaluation for the earlier period remains on appeal. Law and Analysis The Veteran and his representative have not 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). Increased Evaluation Disability evaluations 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 Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability 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 rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509- 10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the Veteran's schizoaffective disorder is currently assigned a 30 percent evaluation prior to May 26, 2020, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9211. Under Diagnostic Code 9211, a 30 percent evaluation is warranted when the psychiatric disorder results 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 routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted when the psychiatric disorder results in 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 70 percent evaluation is warranted when the psychiatric disorder 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 evaluation is warranted when the psychiatric disorder 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; and memory loss for names of close relatives, own occupation, or own name. The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that "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." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." In considering the evidence of record under the laws and regulations, the Board finds that the Veteran is entitled to a 100 percent evaluation for his service-connected schizoaffective disorder prior to May 26, 2020. During a June 2013 VA examination, the Veteran had symptoms of resentment; sadness; poor concentration; indecisiveness; depressed mood; suspiciousness; mild memory loss; intermittent, illogical, obscure, or irrelevant speech; and an inability to establish and maintain effective relationship. He indicated that he was married with two daughters and a son with whom he got along well. It was also noted that he was a caregiver to his disabled daughter. The Veteran reported that he had not worked within the last 12 months and that he was terminated from his last place of employment because the students in his class failed and he was expected to give them good grades. The examiner noted the Veteran was alert and oriented with good hygiene and casual dress. The Veteran also denied having any obsessive-compulsive behaviors, sleep problems, panic attacks, homicidal ideations, and violent behavior. The examiner found that he had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. Notably, however, the June 2013 VA examiner noted that the Veteran did endorse suicidal ideations that occurred years earlier. Moreover, while he denied having hallucinations and delusions, he admitted to hearing things in his home and having a feeling as if someone were coming to choke him in his sleep. The examiner further noted the Veteran had poor memory, was tangential when speaking, was very distressed, and had to take two 15-minute breaks during the 90-minute examination. He also complained of blurry vision. There are also treatment records showing that the Veteran's symptoms of and impairment resulting from his schizoaffective disorder were consistent with a 100 percent evaluation during the appeal period prior to May 26, 2020. The Veteran reported he was divorced and isolated from his family and not speaking with them. See January 2016 and September 2016 VA treatment records. Multiple VA treatment records also indicated the Veteran had deteriorating hygiene and grooming, and at times, he wore soiled and wrinkled clothing to appointments or had the appearance of not changing his clothing. See November 2015, August 2017, and September 2018, and December 2018 VA treatment records. In addition, the Veteran reported that he often forgot to take his medications and eat. See November 2015, September 2018, and October 2018 VA treatment records. Although VA treatment records note the Veteran was alert and oriented during appointments and denied suicidal and homicidal ideations along with hallucinations, the contents of the records show differently. Indeed, the Veteran denied having suicidal ideations, but also stated that he often had passive thoughts of suicide or heard voices telling him to kill himself. See e.g., November 2015 treatment record. As set forth above, suicidal ideation is one of the symptoms associated with a 70 percent disability rating, and a 100 percent evaluation contemplates persistent danger of hurting self or others. Suicidal ideation involves a range from a passive wish not to awaken in the morning or a belief that others would be better off if the individual were dead, to transient but recurrent thoughts of committing suicide, to a specific plan. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Court has held that the criteria for a 70 percent rating "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." Id. Although the Veteran did not report any suicidal plans or intent, the Board may not discount the symptom of suicidal ideation based on the absence of factors such as intent or plan. Id. Additionally, while he denied having hallucinations, the Veteran often reported hearing voices and murmurings, someone walking in his home when he was alone, and knocking on the walls. See November 2015 and January 2018 VA treatment records. Treatment providers also noted on many occasions that the Veteran experienced paranoia, delusional thinking, tangential speech, and disorganized thought processes. See November 2015 and August 2017 VA treatment records. Moreover, the Veteran has stated that he lives in isolation in his bathroom where he cooks, eats, and sleeps. He indicated that he only leaves his bathroom to go grocery shopping or to medical appointments. See March 2018 and February 2019 VA treatment records. The Board further notes that such findings are consistent with the Veteran's testimony during the April 2017 hearing. In a March 2021 appellate brief, the Veteran's representative also stated that the Veteran had hallucinations, delusions, and problems with functioning, occupation, and self-care prior to May 26, 2020. The evidence of record indicates that the Veteran experienced some of the symptoms contemplated in the rating criteria for a 70 percent evaluation. Specifically, he has experienced suicidal ideation, neglect of personal appearance and hygiene, and an inability to establish and maintain effective relationships. He also had symptoms indicative of a 100 percent evaluation, including paranoid delusions, disorganized thought processes, and intermittent inability to perform activities of daily living. After reviewing the evidence of record and resolving any reasonable doubt in his favor, the Board finds that the Veteran's overall disability picture more nearly approximates the criteria for a 100 percent rating for schizoaffective disorder prior to May 26, 2020. TDIU All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16(b). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. In this case, the Veteran did not file a claim for TDIU, but the issue was raised by the evidence of record. In this regard, the Veteran testified during the April 2017 hearing that he had not worked in over ten years. He indicated that he had last worked as an instructor at a technical institute, but had problems with the students and administration. He also stated that he lacks motivation and has no hope in the future. In Rice v. Shinseki, 22Vet. App.447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. The agency of original jurisdiction (AOJ) sent a VA Form 21-8940 to the Veteran, but he did not complete and return that form. Prior to May 26, 2020, the Veteran was service-connected for a schizoaffective disorder (100 percent disabling based on the decision above); uvulopalatopharyngoplasty (noncompensable); and skin problems on the feet (noncompensable). In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability, separately rated at 60 percent or more, could warrant special monthly compensation under 38 U.S.C. § 1114(s). Thus, it might be of benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted, as a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC). See also Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). Based on the decision herein, the Veteran is now assigned a 100 percent evaluation for schizoaffective disorder effective from September 29, 2011, and he does not have any other service-connected disability rated at 60 percent or higher. Therefore, the only avenue for further benefit to the Veteran would be entitlement to SMC by meeting the criteria of at least a 60 percent rating for a schizoaffective disorder and for TDIU based on another service-connected disability. Thus, the crux of this case is whether the Veteran has a single service-connected disability other than schizoaffective disorder that rendered him unable to secure and follow a substantially gainful occupation. The Board notes the Veteran has not asserted that his service-connected uvulopalatopharyngoplasty or skin problems on the feet have rendered him unemployable. Rather, it appears he was fired because of a disagreement with the school administration regarding his grading of students and because he cared for his disabled daughter. The Veteran also testified during the April 2017 hearing that he has no motivation and no hope. In addition, the record shows that he was focused on becoming a millionaire from a product he invented. There is simply no indication or evidence showing that the Veteran's service-connected uvulopalatopharyngoplasty or skin problems on the feet alone render him unable to secure and follow a substantially gainful occupation. Accordingly, the Board finds that the Veteran is not entitled to TDIU. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.