Citation Nr: 21005695 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-00 228A DATE: February 2, 2021 ORDER Entitlement to an initial 100 percent rating for an acquired psychiatric disorder, to include a schizoaffective disorder and post-traumatic stress disorder (PTSD), is granted from February 6, 1996. Entitlement to an effective date prior to November 6, 2012 for the grant of a total disability rating based on individual unemployability due to service-connected disability (TDIU) is dismissed as moot. Entitlement to an earlier effective date of February 6, 1996, for the grant of entitlement to Dependent’s Educational Assistance (DEA) benefits under Chapter 35, Title 38, of the United States Code, is granted. FINDINGS OF FACT 1. Since the grant of service connection, the Veteran’s schizoaffective disorder symptoms, including suicidal ideation, hallucinations, social isolation and paranoia have made the Veteran demonstrably unable to obtain or retain employment. 2. The Veteran has had a 100 percent rating in effect for his psychiatric disability, his only service-connected disability, since the grant of service connection. 3. The Veteran has had a permanent and total rating for his service-connected psychiatric disorder since February 6, 1996. CONCLUSIONS OF LAW 1. The criteria for an initial 100 percent rating for a schizoaffective are met since the grant of service connection. 38 U.S.C. § 1155; 38 C.F.R. § 4.132, Diagnostic Code 9205 (effective prior to November 7, 1996). 2. The criteria for an effective date prior to November 6, 2012, for the grant of TDIU is dismissed as moot. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. 3. The criteria for an effective date of February 6, 1996, for the grant of eligibility for DEA under 38 U.S.C., Chapter 35, are met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to December 1971 and from July 1973 to March 1974. In April 2019 the Board remanded the Veteran’s claims in order for the agency of original jurisdiction (AOJ) to reevaluate the Veteran’s claims for increased ratings for his psychiatric disorder under the criteria for the rating of psychiatric disorders that was in effect prior to November 7, 1996. The AOJ accomplished this request and the Veteran’s claims are now ready for Board review. 1. Entitlement to an initial rating in excess of 50 percent for an acquired psychiatric disorder prior to November 8, 2012, and to a rating in excess of 70 percent thereafter. The Veteran was granted a 50 percent initial rating for an acquired psychiatric disability, to include a schizoaffective disorder and PTSD, from February 6, 1996 to November 8, 2012, and a 70 percent rating thereafter. The Veteran’s attorney asserts that the Veteran is entitled to a 100 percent rating for his psychiatric disorder since February 6, 1996, the date service connection was granted. He points out that the Veteran’s claim was pending prior to the November 7, 1996 change in rating criteria for the evaluation of psychiatric disorders. He maintains that under former criteria the Veteran met the criteria for a 100 percent rating for his psychiatric disorder. For the reasons and bases expressed below, the Board finds that the Veteran is entitled to a 100 percent rating for his schizoaffective disorder since the grant of service connection. Since the Board is granting the 100 percent rating based on the criteria in effect prior to November 7, 1996, there is no need to discuss the current criteria for the rating of psychoneurotic disorders. Prior to November 7, 1996, schizoaffective disorders were rated under 38 C.F.R. § 4.132, Diagnostic Code 9205. Under the General Rating Formula for Psychoneurotic Disorders in effect prior to November 7, 1996, a 50 percent rating is warranted where the ability to establish or maintain effective or favorable relationships with people is considerably impaired; and by reason of psychoneurotic symptoms the reliability, flexibility, and efficiency levels are so reduced as to result in considerable industrial impairment. A 70 percent rating is warranted where the ability to establish and maintain effective or favorable relationships with people is severely impaired, and the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent rating is warranted where the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; and totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior such that the veteran is demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9205 (effective prior to November 7, 1996). In April 2018 a private psychiatrist reviewed and described the Veteran’s medical history. He noted that in December 1995 the Veteran was diagnosed with schizo-affective disorder. In March 1996 the Veteran was diagnosed with a dysthymic disorder and the examiner stated that his social and industrial impairment was moderate to severe. In April 1996 the Veteran received 14 days of VA inpatient treatment for hearing voices, suicidal thoughts, nightmares, high anxiety, depression and mood swings. The diagnoses was schizo-affective disorder with PTSD. The private psychiatrist further noted that the Veteran later was hospitalized for 19 days of VA inpatient treatment due to an exacerbation of auditory hallucinations, nightmares, nervousness, depression and an inability to cope. A December 1998 psychological evaluation contained diagnoses of dysthymic disorder and generalized anxiety disorder. The psychologist stated that the Veteran seemed to be a very highly nervous person whose anxiety would interfere with his concentration in remembering and carrying out work assignments and also interfere with being able to relate well to others. Pressure or stressful situations would intensify his anxiety level and seriously compromise his judgment. In an August 2001 statement the Veteran’s treating physician concluded that the Veteran’s mental condition would have a severe impairment of limitation in his ability to respond to customary work pressures, perform complex tasks and perform repetitive tasks. The private psychiatrist noted that the Veteran had a VA examination in November 2012 and that the VA examiner concluded that the Veteran was unable to work due to significant and persisting symptoms of chronic PTSD. She noted that the Veteran was paranoid, had no friends, had cognitive symptoms that would interfere with his ability to even perform simple repetitive tasks. She further noted that the Veteran had difficulty following directions and navigating while driving, mild memory impairment, likely could not manage job responsibilities and was socially isolated. The private psychiatrist stated that during this time the Veteran had not been exposed to normal stressors associated with competitive work for several years. He opined that if the Veteran had been placed in a competitive work environment with the normal work stresses, he would have decompensated rapidly. It was the private psychiatrist’s opinion that the Veteran had not been able to engage in any competitive work since at least July 1994, solely due to his service-connected psychiatric disorders. In April 2018 the Veteran’s claims file was reviewed by a vocational expert. The vocational expert provided a summary of the Veteran’s psychiatric history. He opined that the Veteran had been unable to engage in substantial gainful employment since at least April 1996. In support of his opinion he noted the Veteran’s ongoing frustrations with anger management, inability to work around people, his hospitalizations for his schizoaffective disorder with PTSD, his lack of concentration due to his mental disability and the medications to help control his condition. The Board has reviewed the Veteran’s clinical records and found numerous records that support the above opinions that the Veteran has been unemployable due to his service-connected psychiatric disabilities, a schizoaffective disorder and PTSD since the grant of service connection in February 1996. These include a March 1996 VA examination in which the Veteran reported that he wanted to die, that he had severe depression and had had hallucinations. In May 1996 the Veteran was hospitalized by VA for 19 days for treatment of his schizoaffective disorder after having suicidal thoughts. A December 1998 private evaluation notes that the Veteran was a very highly nervous person whose anxiety would interfere with his concentration in remembering and carrying out work assignments. The examiner stated that the Veteran’s history revealed concerns about his judgment and decision-making skills. The examiner stated that pressure or stressful situations would intensify the Veteran’s anxiety level and seriously compromise his judgment. In November 1999 the Veteran reported to a VA psychiatrist that he had had audio and visual hallucinations for a long time. A July 2000 VA treatment record noted that the Veteran reported visual hallucinations. His insight and judgment were noted to be grossly limited. A March 2001 VA treatment record noted social anxiety and social isolation. A September 2002 VA treatment record noted that the Veteran heard his name called and that he smiled inappropriately. An April 2003 VA treatment record noted auditory hallucinations and social anxiety. In June 2011 the Veteran reported to a VA psychiatrist that his psychiatric medications helped but that he still felt nervous in crowds and that he felt like he was being watched. Sometimes he thought there was a camera inside his house and that his phone (conversations were) being taped. Resolving all doubt in favor of the Veteran, the Board finds that the Veteran has met the criteria for a 100 percent rating for his psychiatric disability since the grant of service connection on February 6, 1996. The above described records indicate that the Veteran was hospitalized for his schizoaffective disorder soon after the grant of service connection. Since then he has had periods of suicidal ideation, hallucinations and paranoia. The Board finds that his symptoms have more nearly met the criteria for a 100 percent rating under the former criteria for the rating of mental disorders ever since the grant of service connection. This finding is further supported by the April 2018 medical/vocational opinions that the Veteran’s service-connected psychiatric symptoms have caused the Veteran to be unemployable since 1996, or before. The Board recognizes that there are other medical records that reflect psychiatric symptoms of lesser severity; however, the Board finds that at times the Veteran more nearly met the criteria for a 100 percent rating and thus a 100 percent rating is warranted since the grant of service connection. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 2. Entitlement to an effective date prior to November 6, 2012, for the grant of TDIU. In light of the grant of a 100 percent rating for a schizoaffective disorder from February 6, 1996, the effective date of service connection, there remains no question of law or fact to decide regarding the effective date for a TDIU claim. A review of the record shows that the Veteran is not service-connected for any disability other than his acquired psychiatric disorder. Therefore, Bradley v. Peake, 22 Vet. App. 280 (2008) does not apply in this case. Therefore, the issue of entitlement to an effective date prior to November 6, 2012, for a TDIU is moot as the Veteran is in receipt of a schedular 100 percent rating for his acquired psychiatric disorder, the only disability for which he is service-connected, for the entire period on appeal. 3. Entitlement to an effective date prior to November 6, 2012, for the grant of DEA benefits. Basic eligibility for Chapter 35 benefits is established in one of several ways: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran’s death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3500, 3501; 38 C.F.R. § 3.807. In this case the Veteran is alive and thus the effective date of the award of DEA basic eligibility is dependent on the Veteran having a permanent and total service-connected disability. As noted above, the Board has determined that the Veteran is entitled to a total service-connected rating, permanent in nature, since February 6, 1996. As such, the Board finds that the Veteran is entitled to an earlier effective date of February 6, 1996, for basic eligibility of DEA under 35 U.S.C., Chapter 35. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, Counsel 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.