Citation Nr: 21021518 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 10-22 915 DATE: April 13, 2021 ORDER Entitlement to a total schedular disability rating for schizophrenia from April 25, 2007 to March 17, 2011 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from April 25, 2007 to March 17, 2011 is granted. FINDINGS OF FACT 1. The Veteran’s schizophrenia did not result in total occupational and social impairment from April 25, 2007 to March 17, 2011. 2. The Veteran’s schizophrenia prevented him from obtaining and maintaining substantially-gainful employment from April 25, 2007 to March 17, 2011. CONCLUSIONS OF LAW 1. The criteria for entitlement to a total schedular disability rating for schizophrenia from April 25, 2007 to March 17, 2011 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9201, General Rating Formula for Mental Disorders. 2. The criteria for entitlement to a TDIU from April 25, 2007 to March 17, 2011 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to January 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of July 2008 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. Following the rating decision on appeal, the Veteran timely filed his notice of disagreement (NOD) in October 2008. The RO issued a statement of the case (SOC) in May 2010 and the Veteran’s timely appeal to the Board followed later that month. Because the Veteran did not request a hearing in his appeal to the Board, no hearing before the undersigned Veterans Law Judge (VLJ) was conducted. See May 2010 VA Form 9. The Board subsequently remanded this case for additional development in December 2015, June 2017, and April 2020. The RO issued its most recent supplemental statement of the case (SSOC) in February 2021. Before addressing this case on the merits, the Board briefly clarifies the scope of the Veteran’s remaining claims. The Board’s April 2020 decision also remanded the issues of entitlement to an increased disability rating for schizophrenia and restoration of a reduced rating for the same. See April 2020 Board Decision at 5-8 (reviewing additional procedural history and clarifying applicable rating periods on appeal). The RO subsequently granted the issue of a restored disability rating in full and granted, in part, the issue of entitlement to an increased disability rating. See February 2021 Rating Decision (assigning a total schedular disability rating for schizophrenia from January 2021). The Veteran has also been assigned a TDIU from March 17, 2011. See February 2021 Rating Codesheet. The issue of whether a schedular disability rating in excess of 70 percent is warranted after March 2011 but before January 2021 is therefore moot because the Veteran has already been assigned a TDIU during that time and has no other service-connected disabilities which might implicate entitlement to special monthly compensation. See 38 U.S.C. § 1114(s). Accordingly, the issues remaining on appeal are those of an increased disability rating for schizophrenia and entitlement to a TDIU from April 25, 2007 to March 17, 2011. 1. Entitlement to a total schedular disability rating for schizophrenia from April 25, 2007 to March 17, 2011. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for a higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability rating decisions. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s schizophrenia is his sole service-connected disability and is rated as 70 percent disabling throughout the rating period on appeal under Diagnostic Code (DC) 9201. See February 2021 Rating Codesheet. The applicable rating criteria provide that a total schedular disability rating is not assigned unless 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 or place; memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, DC 9201, General Rating Formula for Mental Disorders. The evidence of record addressing this time period does not support the inference that the Veteran’s schizophrenia was best approximated by these criteria. See May 2008 VA Examination Report at 8 (opining that the Veteran’s schizophrenia does not result in total occupational and social impairment); see also id. (noting that while the Veteran’s “main difficulties appear to be in the interpersonal relationships with others, like his neighbor, sometimes also with his wife,” he is also “the main caretaker of his parents, so is able to function socially and has good family relations, at least with them”); see also July 2008 Medical Treatment Records at 9 (providing January 2008 treatment note observing “a history of paranoid schizophrenia… and recent depression symptoms” but also noting that “[the Veteran] continues to find coping strategies for the psychosocial and familiar stressors, he will benefit from Day Hospital level of care that will provide the necessary psychotherapy”); see also id. at 18 (providing discharge note of January 2008 observing that “[the Veteran] reached maximum benefit of this level of treatment… showing improvement in mood, sleeping and eating well… Not suicidal or homicidal… Not hallucinating[,] [in] full contact with reality”); see also August 2019 Translation at 50 (providing July 2010 treatment note observing that the Veteran continues providing care and transportation to his parents despite schizophrenia symptoms). The assignment of a total schedular disability rating for this period is therefore not warranted. 38 C.F.R. § 4.130, DC 9201, General Rating Formula. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence is against the Veteran’s claim. 38 U.S.C. § 5107. 2. Entitlement to a TDIU from April 25, 2007 to March 17, 2011. Generally, VA will grant a TDIU when the evidence shows that the Veteran is precluded by reason of his service-connected disabilities from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. “Substantially gainful employment,” in this context, is that which is more than marginal in nature. 38 C.F.R. § 4.16(a). As noted above, the Veteran’s schizophrenia is his sole service-connected disability and is rated as 70 percent disabling throughout the rating period on appeal. See February 2021 Rating Codesheet. The Board may therefore assign a schedular TDIU in the first instance. See 38 C.F.R. § 4.16(a) (providing that initial schedular consideration requires a single service-connected disability rated at least 60 percent disabling, or else a combined disability rating of 70 percent with at least one disability of 40 percent or greater). The record reflects that the Veteran has had a year of college education and had previously been employed as a clerk and a supervisor until September 2006. See January 2015 VA Form 21-8940; see also March 2010 Social Security Agency Records at 9-10; see also January 2021 VA Examination Report at 5. The evidence of record addressing the functional impairment of the Veteran’s schizophrenia, and whether he retired from his employment due to this service-connected condition or to other non-service-connected conditions, is mixed. The Board is mindful that in adjudicating entitlement to a TDIU, it may not consider a Veteran’s age or other non-service-connected conditions. See 38 C.F.R. § 4.16(a). Records obtained from the Social Security Agency (SSA) reflect that the Veteran was found disabled from January 2008 due to a non-service-connected back disorder. See May 2008 SSA Disability Determination; see also May 2008 Medical Treatment Records (providing SSA examiner’s determination that the Veteran’s schizophrenia was not a severe impairment for SSA purposes between September 2006 and March 2008). While SSA determinations are not binding upon the Board, they are nonetheless relevant evidence that the Board may consider in its own TDIU adjudication. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (internal citation omitted). This finding is partially corroborated by the Veteran’s statements during VA examinations. See March 2011 VA Examination Report at 7 (answering “No” as to whether “[the] Veteran contends unemployment is due to the mental disorder’s effects”); see also May 2008 VA Examination Report at 7 (noting that the Veteran left his employment within the last several years “[because] his father was ill and [the Veteran] began taking care of him”). However, other evidence supports the inference that while the Veteran maintained his employment despite his schizophrenia symptoms for many years, such symptoms increased in severity over time to the point that they would have precluded substantially-gainful employment even in the absence of his non-service-connected back condition: [The] Veteran refers [sic] he was unable to continue working due to his back problems and he was unable to deal anymore with his work situations due to his mental condition as well… This Veteran’s symptoms at present are considered severe, because he is experiencing multiple problems at the family level that have overwhelmed him emotionally as well as physically, specifically his having to take care and responsibility of both his parents. Serious considerations should be given to [the] Veteran’s expressions about wanting to cut his son-in-law in pieces or his wanting to get away from it all, leaving everything behind, and the fact that even though hospitalization has been recommended by his attending psychiatrist he won’t accept it, because he has no one to help him. He is prone to decompensate, taking into consideration his past history and the potential [for] aggressiveness that he has displayed against others in the past. His condition, as it is right now, represents a very severe level of impairment for occupational functioning, as he is not considered capable of tolerating any more external pressure and his levels of tolerance, that are already compromised, would prevent him from adequate functioning [sic] within a working environment. See March 2011 VA Examination Report at 7-8 (emphasis added). The evidence of record further supports the inference that it is at least as likely as not that this degree of functional impairment predates March 2011. See May 2008 VA Examination Report at 6 (noting that the Veteran “assaulted [a] neighbor with a baseball bat about 1 month ago [for which he] has a day in court next week”); see also id. at 8 (attributing symptoms of “sleeping difficulty, concentration difficulty, forgetfulness, auditory hallucinations, visual hallucinations, [and] delusions” to the Veteran’s schizophrenia); see also July 2008 Medical Treatment Records at 16-17 (noting admission to partial hospitalization for mental health treatment); see also August 2019 Translation at 52 (providing September 2009 treatment note observing that the Veteran “fight[s] with strangers during traffic, a month ago had a fight with a stranger in [a] cock fight, [and has] destroyed things [in his house]… He shows poor insight and displace[s] responsibility of his actions”); see also November 2015 Translation at 8 (providing July 2010 treatment note observing that the Veteran “does not go out alone” and “is not able to concentrate well in order to drive”). The Board therefore finds that it is at least as likely as not that even when considered in the absence of his non-service-connected conditions, the Veteran’s schizophrenia symptoms alone would have precluded him from obtaining and maintaining substantially gainful employment during this period. 38 U.S.C. § 5107. The assignment of a TDIU for this period is therefore warranted. 38 C.F.R. § 4.16. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, Associate 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.