Citation Nr: 21008594 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 94-31 828A DATE: February 17, 2021 ORDER Entitlement to an effective date earlier than April 8, 2003, for the award of a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities were shown to cause him to be unable to secure or follow a substantially gainful occupation prior to April 8, 2003. CONCLUSION OF LAW The criteria for an effective date prior to April 8, 2003 for the award of a TDIU have not been met. 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. §§ 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1955 to March 1955. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2011, the Board remanded the issue for additional development. In June 2012, the RO granted an effective date of April 8, 2003, for the award of a TDIU. In a November 2012 decision, the Board denied an effective date prior to April 8, 2003, for the award of a TDIU, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In October 2014, the Court, in a Memorandum Decision, vacated that portion of the November 2012 Board decision which denied an effective date prior to April 8, 2008, for the award of a TDIU and remanded the issue to the Board for additional action. In July 2015, July 2016, August 2017, and October 2018, the matter was remanded for additional action. Entitlement to an effective date earlier than April 8, 2003 for the award of TDIU Except as otherwise provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Because the Veteran’s claims were received by VA prior to that date, the former regulations apply, as provided below. Under the regulations effective prior to March 24, 2015, “claim” is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran’s duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). The effective date of an award based on a claim for increase is generally the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Such a determination will be made on the basis of facts found. 38 C.F.R. § 3.400(a). An exception to this rule provides that the effective date of an award for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). When considering the appropriate effective date for an increased rating, VA must consider the evidence of disability during the period one year prior to the application. See Hazan v. Gober, 10 Vet. App. 511 (1997). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Total disability will be considered to exist 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. 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, if there is only one such disability, the disability shall be ratable at 60 percent or more. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). All cases where a Veteran does not meet the schedular criteria but is unemployable by reason of service-connected disabilities should be submitted to the Director, Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). 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). 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. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Prior to April 8, 2003, the Veteran had a combined rating of 10 percent prior to March 23, 1995, 20 percent prior to September 7, 2001, and 40 percent prior to April 8, 2003. His service-connected disabilities were schizophrenia, residual type, rated 10 percent prior to September 7, 2001 and 30 percent prior to April 3, 2003; and psoriasis associated with schizophrenia, residual type, rated 10 percent from March 23, 1995. In this case, the Veteran does not meet the schedular requirements for TDIU for the period prior to April 8, 2003. However, where the schedular percentage requirements are not met, entitlement to a TDIU on an extraschedular basis may be considered 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). The Board notes that the matter was referred to the Director, Compensation Service for extraschedular consideration in October 2018, and an advisory opinion was issued by the Director in October 2020. In an August 2004 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran stated that he last worked full-time in 1981 as a chemical operator and became too disabled to work then. He completed four years of high school. A June 1982 Social Security Administration (SSA) decision found that the Veteran became disabled and unable to work due to schizophrenia, effective March 15, 1982. Also, several private medical records in 1981 and 1982 related to disability insurance claims indicate that the Veteran was totally disabled. A March 1986 statement of disability from a psychiatrist indicates that the Veteran was totally disabled for any occupation, and it was indefinite as to whether the Veteran would be able to resume work and he was not a suitable candidate for a rehabilitation program. The Veteran underwent a VA examination in February 1989, where he complained of anxiety attacks and nightmares that were alleviated with medication. Clinical findings were that the Veteran was alert, oriented times three, and euthymic, although his countenance was serious. His speech was logical, coherent, and relevant. He denied having hallucinations and suicidal or homicidal ideation. The assessment was chronic schizophrenia, undifferentiated type, by history, which was stable. A statement from the Veteran’s friend from February 1989 notes that when the Veteran returned from the Army his conduct was violent without any provocation from their neighbors. He also neglected his personal hygiene and personal appearance. The Veteran was seen for follow-up of medication in April and May 1989. He was euthymic and denied hallucinations and suicidal and homicidal ideations. In May 1989, he was discharged from the VA psychiatric clinic because he was in no acute state and that privileges for long term treatment had expired. He was referred to a state facility. Outpatient progress notes from a state mental health clinic show that the Veteran was seen approximately every two to three months from June 1989 to July 1996. He usually went to the appointments alone. When first seen in June 1989, having been referred by VA, he described having visual and auditory hallucinations. He had complaints of sleep disturbance. At the following appointments he stated that he was feeling better and had fewer visual hallucinations. He was alert, coherent, and oriented times three. At an October 1989 hearing before the Board, the Veteran reported that since he separated from service, he felt like he was a different person mentally. He had trouble holding a conversation and felt he couldn’t talk to many people. He also stated that his wife and children left him because they could not stand him. Private treatment records show that in December 1989, the Veteran reported that he had improved with medication. He no longer had hallucinations. Mentally he seemed stable, his memory seemed integrated, and his speech was normal, coherent, and relevant to the theme. During 1990 he denied visual and auditory hallucinations, ideas of reference, and suicidal or homicidal ideas. He was described as relaxed and in contact. On occasion he reported having insomnia and nightmares. At appointments in 1994, he was described as asymptomatic or stable. In May 1995, he was doing well, sleeping regular and eating well. He denied having bad ideas but mentioned sometimes having suicidal ideas. He looked alert, active, conscious, and oriented times three. In August 1995 and April 1996, he was alert and coherent and also felt anxious. Throughout the period he continued on medication. A medical certificate in May 1990 completed by Dr. L.A.T. for a long-term disability insurance claim notes that the Veteran had been seen on that date and his subjective symptoms were anxiety, nervousness, irritability, restlessness, ideas of reference, delusions, and hallucinations. Objective findings were tachycardia, shortness of breath, numbness in the upper and lower extremities, dizzy spells, stomach discomfort, high blood pressure, and psoriasis. The diagnosis was schizophrenia, undifferentiated type with anxiety, depression, and conversion symptoms. As to degree of disability Dr. L.A.T. indicated that the Veteran had not been able to do any work and would never be able to work. In May 1994, Dr. L.A.T. wrote that the Veteran had been his patient since March 15, 1982, and was treated with minor and major tranquilizers, hypnotics, and individual psychotherapy. He was very nervous, restless, easily upset, irritable, suspicious, mentally disturbed, and insomniac. He did not relate with people and quite often argued with his wife and sons. Dr. L.A.T. considered the Veteran unable to establish normal interpersonal relationships and to present a definite impairment to establish and maintain effective relationships with people. He was also unable to adapt himself and to get along well in the social and industrial environment consequently presenting a definite and considerate impairment in both areas. The diagnosis was schizophrenic disorder chronic undifferentiated type. The psychiatrist opined that the Veteran was considered to be totally and permanently disabled for gainful employment. The Veteran underwent a VA examination in September 1994. The claims folder and hospital records were reviewed by the examiner. The Veteran reported that he was receiving mental health treatment and was taking medication for anxiety and schizophrenia. Mental status examination revealed that he was alert and oriented times three. His mood was depressed, and he appeared to be somewhat sleepy. His affect was blunted. He had poor eye contact and his attention was fair. His concentration was fair as was his memory. His speech was clear and coherent. He was not hallucinating. He was not suicidal or homicidal and exhibited good impulse control. The diagnosis was schizophrenia, residual type. The Global Assessment of Functioning (GAF) score assigned was 75, which contemplates transient and expectable reactions to psychosocial stressors, such as difficulty concentrating after family argument, or no more than slight impairment in social, occupational, or school functioning, such as temporarily falling behind in school work. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, American Psychiatric Association (DSM-IV). The report of a VA Social and Industrial field survey in September 1994 shows that the Veteran had not been employed since 1981 and was receiving treatment at a state mental health clinic. The information gathered was not consistent as to whether he stayed most of the time at his sister’s home or at his own house and whether he drove a car, as he and his sister stated that he primarily stayed with family and did not drive a car, yet three neighbors stated that he lived alone in the country and drove to visit his sister to have lunch and to help out around her home. The sister described the Veteran as ill-humored and he had frequent insomnia but was unable to provide additional information about the Veteran’s psychiatric condition or his behavior. A neighbor with whom the Veteran conversed related that the Veteran’s conversation was logical and coherent. The Veteran helped his sister with the house and yard chores and fixed things at home. He described the Veteran’s behavior as adequate and no abnormal behavior was reported. A January 1995 supplementary claim for disability benefits from an insurance company, completed by his attending physician, noted the Veteran was last seen for schizophrenia, nondifferentiated type, in January 1994 and his visits were every three months. His subjective symptoms were tachycardia, insomnia, gastric sensations, trembling, and incoordination. He had not been confined to a hospital. His condition remained unchanged. He had a psychological limitation. His physical impairment was severe limitations of functional capacity. His mental or nervous impairment was severe. He had significant loss of psychological, physiological, personal, and social adjustment. He was totally disabled from any occupation and would never be able to resume any work. He was not a suitable candidate for further rehabilitation services. VA outpatient treatment records show that in February 1995 the Veteran was referred to a Mental Hygiene Clinic for evaluation of psychosis. He was alert, oriented, coherent, and relevant. He admitted to having occasional hallucinations and auditory and visual experiences. His mood was anxious, and he was restless. His memory and intellectual functioning were within normal limits. He had poor insight. The assessment was past history of schizophrenia, chronic undifferentiated type with no psychosis at present; rule out panic attacks without agoraphobia; and rule out somatization disorder. He was admitted to outpatient treatment at a VA mental health clinic and was to return three months later. In June 1995, he was stable and in control. A medical certificate dated in March 1995 from the Mental Health Program of Puerto Rico at a Psychiatric Hospital in Ponce, Puerto Rico, shows that the Veteran began to receive treatment in the Ponce Mental Health Program outpatient clinics in April 1955 and his last visit was in February 1995. He had never been hospitalized at that institution. He continued to receive treatment at the outpatient clinic for chronic schizophrenic reaction of the non-differentiated type. VA outpatient treatments records in March 1997 show that the Veteran complained of poor sleep. He was alert, oriented times three, coherent, and with blunted affect and poor rapport. He was not actively hallucinating and had no suicidal or homicidal ideations. was to return four months later. At a VA mental disorders examination in June 1998, the Veteran reported that he had not been hospitalized since shortly after service. He reported that he had not worked since 1981. He had been separated from his wife and children since 1986 when they moved to Delaware. He described all sorts of somatic symptoms, and a sensation of confusion and at times fear. Clinical findings were that the Veteran was not actively delusional or hallucinating but there was looseness of associations in his speech and he seemed somewhat depressed. He appeared upset at the course of his appeal with VA and feeling that he was treated unfairly by the Army. He was at times appearing to cry, though there was no evidence of tears. He was not considered actively suicidal or homicidal. His affect was somewhat inappropriate, although he was somewhat histrionic also. His mood was depressed. He was oriented in person, place, and time. Memory was fair and intellectual functioning was average. His judgment was fair, and insight was superficial. The diagnosis was schizophrenia, residual type, depressed; and some histrionic personality features. A GAF of 65 was assigned, which contemplates some mild symptoms, such as depressed mood and mild insomnia, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well with some meaningfully interpersonal relationships. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, American Psychiatric Association (DSM-IV). A certification issued in June 1998 by a psychiatrist at the Outpatient clinic of the Ponce Mental Health Program shows that the Veteran was seen in April 1955 and his last visit was in July 1996. He had not been hospitalized at the Psychiatric Hospital in Ponce and was not receiving treatment at the outpatient clinic service at that time. His diagnosis was chronic schizophrenic reactions, undifferentiated type. VA outpatient treatment records in March 1999 show that the Veteran was alert, oriented times three, coherent, anxious of mood, concrete, and referential. He had no hallucinations, or suicidal or homicidal ideations. The Veteran stated in May 1999 that his service-connected schizophrenia disabled him physically and mentally, and that he suffered from symptoms including insomnia, mental tiredness, inability to concentrate, and feeling like he was going to lose his mind. In March 2000, the Veteran received VA vocational counseling and was found eligible and entitled to vocational rehabilitation services. Achievement of a vocational goal was reasonable and feasible. A supervisory session in October 2000 indicated that the Veteran was following the plan and was well motivated toward course activity. For the months from January to April 2001, when a rating was provided for his classes, he received ratings of outstanding or satisfactory, and then for the months of July and August 2001 the ratings were unsatisfactory. However, he successfully completed a 12-month course in electronic mechanics in August 2001. He then participated in a plan to help him obtain and sustain employment. In April 2002, however, he stated that he had been receiving benefits from SSA based on unemployment since 1982 due to his nerves and his case with VA was on appeal. Therefore, for those reasons, he did not desire employment. VA outpatient treatment records show that in September 2000 and January 2001 when the Veteran was seen for medication follow-up purposes, he was cooperative, spontaneous, logical, coherent, and relevant. He was oriented times three. He was not actively suicidal, delusional, homicidal, or hallucinating at that time. In September 2000 he had fair judgment, adequate memory, and superficial insight. In January 2001 he was spontaneous, anxious with congruent affect and his judgment was considered poor with no true insight into his mental condition. The GAF scores were 55 and 50 respectively. The Veteran testified at a hearing at the RO in February 2001. The Veteran stated that he felt that he was increasingly tired, and that sometimes when sitting in his living room, he was overwhelmed with exhaustion and had to get in bed. He stated that after eating, he felt gas pains that he had been told were related to anxiety. When he felt those pains, he would hold his breath. He stated that when he took anxiety medication, he sometimes felt like he was about to fly, and that at times he thought he saw people in the wall that he did not recognize. He sometimes heard voices calling his name and felt like someone was pursuing him. He relayed a history of waking up with panic attacks, but that since he had begun to take anxiety medication, he had noticed a decrease in “blood pressure” and panic. He had thought of suicide in the past and felt more depressed and suicidal when he was having a flare-up of psoriasis. He stated that he received mental health treatment every three months to manage his medications. His medications had recently been changed to combat his insomnia. He stated that he stopped working in 1981 due to high blood pressure, which was later determined to be related to his nerves. He stated that he did not complete any tasks at home because it was hard for him to focus. At a VA examination in March 2001, the examiner noted that no hospitalizations were shown in the computer file. The Veteran lived with his wife. The Veteran was noted to be clean and adequately dressed and groomed. He was alert and oriented times three. His mood was depressed, and his affect was constricted. His attention was good. His concentration and memory were fair. His speech was clear, coherent, and soft. He was not hallucinating. He was not suicidal or homicidal. His insight and judgment were fair. He exhibited good impulse control. The diagnosis was schizophrenia, residual type, with anxiety and depressive features, mild. A GAF score of 80 was assigned, which contemplates transient and expectable reactions to psychosocial stressors, or no more than slight impairment in social, occupational, or school functioning. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, American Psychiatric Association (DSM-IV). The report of an unannounced Social and Industrial field survey in April 2001 shows that the Veteran was clean and dressed. Although previously the Veteran and his wife were separated, they were once again living together. He reported that he was attending school in the mornings and afterwards he watched television and was idle at home. Sporadically, he conversed with his neighbors and visited his relatives. The Veteran’s wife reported that the Veteran seldom was involved in any home tasks. A neighbor who was interviewed reported that the Veteran was a good person with whom he conversed sporadically. He was mostly at home. His behavior at home was described as normal. No abnormal behavior was reported. The Veteran reported that at night, he experienced symptoms of panic attacks, including shortness of breath, heart palpitations, and needle-like sensations in his extremities. He at times heard voices calling his name. A Certificate of Graduation issued in September 2001 by the Registrar of the Institute of Bank and Commerce certifies that the Veteran completed all of the requirements for graduation in the course of Electronic Technology in August 2001. VA outpatient treatment records for the period from April 2001 to May 2003 show that the Veteran was cooperative, logical, coherent, and relevant. There was no evidence of active suicidal or homicidal ideation, delusions, or hallucinations. His cognitive functions were preserved. At the majority of visits, he was oriented in all three spheres but on several occasions, he was not oriented to time. He was anxious, with depressed affect or inadequate affect. He was sleepy during one interview. He had impaired judgment and no insight. His memory was also found intact, and that he had adequate judgment and superficial insight. He was adequately dressed and kept. At times he complained of forgetfulness or memory loss and reported occasionally hearing his name called or having a sensation of somebody walking by his side. A GAF score of 50 was assigned in April 2001, which contemplates serious symptoms, such as suicidal ideation, severe obsessional rituals, or frequent shoplifting, or serious impairment in social, occupational, or school functioning, such as no friends or an inability to keep a job. However, at the other visits a GAF score of 55 was assigned, which contemplates moderate symptoms, such as flat affect, circumstantial speech, or occasional panic attacks, or moderate difficulty in social, occupational, or school functioning, such as few friends and conflicts with peers or co-workers. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, American Psychiatric Association (DSM-IV). A February 2003 handwritten statement from a professor indicates that the Veteran made a supreme effort in his electronic course to concentrate and to do the jobs that were assigned. Because he had to take several prescribed medications his work and tests were deficient, even when he was granted special accommodations due to his condition. His medications made him sleepy and he had headaches and dizziness. In a May 2004 statement, the Veteran’s wife stated that the Veteran became irritable, misinterpreted things, and verbally attacked people who were having a conversation with him and that was the cause of their separation for 14 years. Also, a May 2012 VA mental disorders examiner noted that the Veteran had been granted VA vocational rehabilitation services in August 2000 and completed a 12-month training program as an electronic technician in September 2001. The examiner opined that, if the Veteran was able to successfully complete a one-year training program from August 2000 to September 2011, then he was certainly not unemployable during that year. The examiner further opined that, prior to 2001, the Veteran was not unemployable, but had mild to moderate symptoms of his mental disorder, without psychiatric hospitalizations. During the years 2001 and 2002, the Veteran was not eligible for unemployability as he received VA occupational rehabilitation benefits and was able to complete a 12-month training program. The examiner stated that in 2003, the Veteran’s psychotic symptoms increased, and he had a psychotic episode during which time he was unemployable. In an October 2020 Advisory Opinion, the Director of Compensation Service found that the totality of the evidentiary record did not demonstrate that the symptomatology consistently associated with the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation, including in a sedentary or semi-sedentary work environment prior to April 8, 2003. The Board finds that the preponderance of the evidence of record shows that the functional limitations imposed by the Veteran’s service-connected disabilities did not alone render him unable to secure and follow a substantially gainful occupation prior to April 6, 2003. The Veteran was not prevented him from securing or following a substantially gainful occupation by reason of his service-connected schizophrenia and psoriasis prior to April 8, 2003. The medical evidence of record clearly demonstrates that the Veteran’s disabilities resulted in significant occupational impairment prior to that date. By the assigned schedular ratings prior to April 8, 2003, the Veteran has been compensated for the symptomatology associated with his service-connected disabilities. Thus, impairment of industrial capacity due to service-connected disabilities has already been taken into consideration via the disability ratings assigned. The evidence does not show that the Veteran was incapable of performing the physical and mental acts required by employment due solely to his service-connected disabilities. The Board acknowledges that a March 1986 statement of disability from a psychiatrist indicated that the Veteran was totally disabled for any occupation, and it was indefinite as to whether the Veteran would be able to resume work and he was not a suitable candidate for a rehabilitation program. However, despite his difficulties, the Veteran subsequently successfully completed a VA vocational rehabilitation course in electronics between August 2000 and September 2001. While there have been numerous medical records dated from 1981 to the present that have commented on the Veteran’s employability, none of the reports have evaluated the Veteran’s vocational abilities with the thoroughness of the VA vocational rehabilitation program. The Veteran’s VA vocational rehabilitation file includes extensive reviews of the Veteran’s educational, occupational, social, and medical history. On the basis of that information, and a detailed analysis of the limitations imposed by his disabilities, the VA vocational rehabilitation program reached a consensus that, despite the Veteran’s serious employment handicap, it was reasonably feasible that the Veteran could achieve his vocational goal of becoming an electronics technician. While the evidence of record shows that the Veteran did not obtain employment following this course, it also shows that he indicated in April 2002 that he did not desire employment because he was receiving SSA benefits based on unemployment since 1982 and hoped to receive VA benefits. While a February 2003 statement from the Veteran’s professor indicates that even with special accommodations, the Veteran’s test results and work were deficient due to medications for his condition, the professor also indicated that the Veteran made a supreme effort in his electronic course to concentrate and to do the jobs that were assigned. In addition, despite these problems, it did not prevent the Veteran from completing all the requirements for graduation in August 2001. Although a private medical doctor, Dr. L.A.T., indicated in May 1990 and January 1995 that the Veteran was unable to work, those statements were provided for a long-term disability insurance claim and included symptoms of non-service connected disabilities. In May 1994, Dr. L.A.T. opined that the Veteran was considered to be totally and permanently disabled for gainful employment. However, at a VA examination approximately four months later in September 1994, a GAF score of 75 was assigned, which demonstrates transient symptoms which are expectable reactions to psychosocial stressors. The Board recognizes that VA has changed its regulations, and now requires use of DSM-5 effective August 4, 2014. DSM-5 eliminates the use of the GAF score in evaluation of psychiatric disorders and is applicable to cases certified to the Board on or after August 4, 2014. It is not applicable to cases certified to the Board prior to that date. 79 Fed. Reg. 45093 (Aug. 4, 2014). In this case, the Veteran’s claim was certified to the Board prior to August 4, 2014; therefore, the regulations pertaining to the DSM-IV are for application. The Board finds that September 1994 VA examination opinion of greater probative value than the statements from Dr. L.A.T. as the VA examiner reviewed the entire claims folder, to include service medical records and private and VA outpatient treatment records, conducted a thorough examination of the Veteran, and had the report of a Social and Industrial survey to verify the Veteran’s behavior in the community. The report also suggests that the Veteran’s psychiatric illness was not as disabling as his private physician suggested, and that even if there was a great degree of impairment at times, at least in September 1994, the impairment was no more than mild. Throughout the period from 1989 to 2001, the Veteran’s schizophrenia was treated with medication and he received follow-up outpatient treatment at a VA medical center and at a state mental health facility. The majority of the records show that overall, the Veteran was stable, alert, oriented, coherent, and relevant and denied visual and auditory hallucinations. Although on one occasion he related sometimes having suicidal ideas, he never indicated that he had a plan and at other visits, suicidal or homicidal ideations were not reported or found. At a VA examination in June 1998 a GAF of 65 was assigned which demonstrates some mild symptoms. At outpatient visits, in September 2000 a GAF score of 55 was assigned which demonstrates moderate symptoms and in January 2001, a GAF score of 50 was assigned which demonstrates the high end of the range of serious symptoms. However, at a VA examination only two months later in March 2001, a GAF score of 80 was assigned which shows transient symptoms. The Board also acknowledges the lay statements of record, including the February 1989 statement from the Veteran’s friend, and the Veteran’s May 1999 statement. However, the other relevant evidence at the time of these statements are not consistent with the statements. The Veteran, in a VA examination in February 1989, complained of anxiety attacks and nightmares that were alleviated with medication, and clinical findings found the Veteran was alert, oriented times three, and euthymic, although his countenance was serious. Also, his speech was logical, coherent, and relevant, and he denied having hallucinations. And while the Veteran’s friend stated that he was violent without provocation, the Veteran denied suicidal or homicidal ideation. Also, while the Veteran stated in May 1999 that he was suffering from mental tiredness, inability to concentrate, and the feeling like he was going to lose his mind; VA outpatient treatment records in March 1999 show that the Veteran was alert, oriented times three, coherent, anxious of mood, concrete, and referential. He had no hallucinations, or suicidal or homicidal ideations. Also, in March 2000, the Veteran received VA vocational counseling and was found eligible and entitled to vocational rehabilitation services, and it was found that achievement of a vocational goal was reasonable and feasible. While the Veteran’s wife stated in May 2004 that the Veteran became irritable, misinterpreted things, and verbally attacked people who were having a conversation with him; this evidence, while indicating that the Veteran had difficulty in relationships, does not show that the Veteran was unable to obtain or maintain substantially gainful employment. These lay statements are outweighed by the VA examination reports, treatment reports, and vocational counseling reports that were based on interviews with the Veteran, reviews of the record, testing, and medical expertise. The Board also notes that in June 1982, the Social Security Administration (SSA) awarded the Veteran disability benefits commencing in March 1982 as a result of his service-connected schizophrenia. However, that decision is not binding on VA. The Board observes that SSA’s legal criteria for assessing disability for Social Security benefits purposes differs in important respects from VA’s framework for determining entitlement to a TDIU. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). SSA subscribes to different statutory and regulatory criteria. The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant entitlement to TDIU. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Therefore, the SSA finding is afforded less probative weight. In summary, while it is clear that the Veteran’s service-connected disabilities made it difficult for him to secure and follow a substantially gainful occupation prior to April 8, 2003, the preponderance of the probative evidence of record does not show that his service-connected disabilities made him completely unable to do so. Accordingly, it is not factually ascertainable that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation prior to April 8, 2003. Accordingly, an effective date prior to April 8, 2003 for the assignment of TDIU is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bonnie Yoon, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED