Citation Nr: 21026256 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 14-37 912 DATE: April 30, 2021 ORDER Entitlement to a November 13, 2008 effective date, but no earlier, for a 100 percent rating for service-connected schizophrenia is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. New and material evidence was constructively received within a year of the September 2009 rating decision that denied an increased rating for service-connected schizophrenia, and it is not final. 2. An increased rating claim for service-connected schizophrenia was received on June 23, 2009 and prior to that date there was no pending formal or informal increased rating claim for service-connected schizophrenia. 3. From November 13, 2008, within the one year period preceding the June 23, 2009 increased rating claim, the Veteran had schizophrenia symptoms that more nearly approximated total occupational and social impairment. CONCLUSIONS OF LAW 1. The September 2009 rating decision denying an increased rating for service-connected schizophrenia is not final. 38 U.S.C. § 7105(d); 38 C.F.R. §§ 3.104, 3.156(b). 2. From November 13, 2008, which is within the one year period prior to the June 23, 2009 increased rating claim, the criteria for an increased rating of 100 percent for schizophrenia have been met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.156(b), 3.400, 4.1-4.10, 4.130, Diagnostic Code (DC) 9201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to December 1969, including service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) from an October 2011 and March 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In the March 2013 decision, the RO increased the rating for the Veteran's schizophrenia to 100 percent, effective December 19, 2012. The Veteran timely appealed the assigned effective date for the 100 percent rating for schizophrenia. Cf. Rudd v. Nicholson, 20 Vet. App. 296 (2006) (prohibiting freestanding earlier effective date claims). In November 2016, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In March 2018, the Board, in pertinent part, granted an effective date of March 2, 2010, but no earlier, for a 100 percent rating for service-connected schizophrenia. The Veteran appealed this determination to the United States Court of Appeals for Veterans' Claims (Court). Before the Court issued a decision, the parties filed a joint motion for partial remand (joint motion) to vacate the portion of the March 2018 Board decision denying an effective date for a 100 percent rating for service-connected schizophrenia prior to March 2, 2010 and remanded this issue to the Board. In January 2019, the Court granted the joint motion. In July 2019, the Board remanded the issue for additional development in compliance with the January 2019 joint motion. In an August 2020 deferred rating decision, the RO issued requested development for the issues subject to the March 2018 Board remand and development was continuing as of April 2021. Since the RO continues to actively develop these issues, the Board will defer consideration for them. In November 2020, the Board remanded the appeal for additional development. As explained below, it has been completed, to the extent possible, and the issue returns for appellate review. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The claims are also subject to the January 2019 joint motion and July 2019 and November 2020 Board remands. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Neither the Veteran, nor his representative have identified a specific notification or assistance error. See April 2021 Appellate Brief. For remand development, the agency of original jurisdiction (AOJ) obtained all VA treatment records for the Veteran from June 23, 2008 through March 2, 2010. It translated the September 9, 2009 statements from the Veteran. The Board notes that the November 2020 remand specifically identified December 2008 Social Worker records as part of the record request. This Social Worker report is referenced in contemporaneous VA treatment records, but the actual report is not included. The Board finds that no prejudice inures to the Veteran from the instant adjudication since the 100 percent rating precedes the December 2008 Social Worker report. See Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). The above development actions reflect substantial compliance with the January 2019 joint motion and July 2019 and November 2020 Board remands. With these considerations, the Board finds that appellate adjudication for this claim may proceed without prejudice to the Veteran. See id. Entitlement to an earlier effective for a 100 percent rating for service connected schizophrenia The Veteran asserts that the September 2009 rating decision is not final. See January 2019 joint motion. He has not raised the issue of any informal or formal claim being filed prior to the June 23, 2009 increased rating claim that was the subject of the September 2009 rating decision. 38 C.F.R. §§ 3.151, 3.155 (2014). Prior to the September 2009 rating decision, a May 1970 rating decision granted service connection for schizophrenia, and the last adjudication occurred in the February 1980 rating decision. The Veteran does not dispute the finality of the previous February 1980 rating decision denying an increased rating for schizophrenia. The Board has not found new and material evidence, to include constructively received VA treatment records, within a year of this decision’s issuance to vitiate its finality. Lang v. Wilkie, 971 F.3d 1348, 1355 (Fed. Cir. 2020); 38 C.F.R. § 3.156(b). There is no evidence of a formal or informal increased rating claim filed prior to June 23, 2009. 38 C.F.R. §§ 3.151, 3.155 (2014). Thus, an earlier effective date based upon either an unadjudicated claim prior to June 23, 2009 increased rating claim or non-finality of the February 1980 rating decision is not for further consideration. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) ("Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory"). As explained below, the Board finds that the previous September 2009 rating decision denying an increased rating for schizophrenia, then rated 30 percent disabling, did not become final. The Veteran did not appeal the September 2009 rating decision. Nevertheless, the Board must consider evidence received within the year following each rating decision, to include constructively received VA treatment records. Lang, 971 F.3d at 1355; Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir 2014) (VA must provide a determination that is directly responsive to new and material evidence received with the remaining appeals period); Bond v. Shinseki, 659 F.3d 162, 1368-69 (2011); 38 C.F.R. § 3.156(b). VA treatment records constructively of record from September 2009 to September 2010 constitute new and material evidence with respect to the September 2009 rating decision. Id. These VA treatment records refer to anxiety, depression, and irritability, as well as audiovisual hallucinations that suggest symptoms greater than the currently assigned 30 percent criteria under DC 9201. 38 C.F.R. § 4.130, DC 9201. Since the September 2009 rating decision is not final, the increased rating claim underlying this rating decision remains pending. 38 C.F.R. § 3.156(b). The Veteran filed this increased rating claim on June 23, 2009. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. There is a liberalizing regulation for increased rating claims. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). It provides the effective date for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if application is received within one year from such date. Id. The Court and VA's General Counsel have interpreted the legal authority governing the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. If the increase occurred after the date of the claim, the effective date is the date of increase. See 38 U.S.C. § 5110(b)(3); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). See also Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (holding that section 5110(b)(2), now section 5110(b)(3), requires that "an increase in a veteran's service-connected disability must have occurred during the one year prior to the date of the veteran's claim... to receive the benefit of an earlier effective date"). Thus, in assigning an effective date, the Board must consider whether an increase in schizophrenia symptoms occurred within one year preceding the June 23, 2009 increased rating claim. Id. The Veteran is service-connected for schizophrenia with ratings under DC 9201, in pertinent part, of 30 percent from June 23, 2008 (beginning of the one year look back period for the increased rating claim) and 100 percent from March 2, 2010. 38 C.F.R. § 4.130, DC 9201. Disability evaluations are determined by application of the criteria set forth in the 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. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 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 the higher rating. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Schizophrenia is rated according to the General Rating Formula for Mental Disorders (General Rating Formula) discussed below. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Under the General Rating Formula, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands, impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. Under the General Rating Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Turning to the evidence, on November 13, 2008, the Veteran visited a VA primary care clinic. The physician assessed the Veteran as having depression. The Veteran refused a “PIC” evaluation because of his distrust of VA services. However, referrals were placed for patient representative, social worker, and psychiatry. November 20, 2008 VA mental health (MH) records noted that the Veteran recently visited “PIC” but did not wait for an evaluation and made violent threats against the hospital. The Veteran complained about poor memory, concentration, and sleep. He had irritability and nightmares about Vietnam. He reported hyperverbal and manic episodes where he would work with 2-3 hours of sleep. He had audiovisual hallucinations on a near daily basis. He was self-employed in real estate and his business was faltering. He reported a history of private psychiatric treatment but none recently. Mental status examination (MSE) was remarkable for anxious mood and restricted affect as well as audiovisual hallucinations. The clinician assessed schizophrenia with posttraumatic stress disorder (PTSD) features. He characterized the hallucinations as non-malignant. February 2009 VA MH records reported poor concentration, anxiety and poor sleep. He had continuing economic problems and related marital conflict. He continued to report daily audiovisual hallucinations. MSE was substantially the same. March 2009 VA MH records included reports that the Veteran’s real estate business officially failed, and he was no longer working. June 2009 VA MH records noted reports about memory lapses, such as leaving the car on, misplacing a cellular phone, and missing a medical appointment. The Veteran described poor concentration and irritability associated with economic problems. He had continuing audiovisual hallucinations. In August 2009, the Veteran had a VA examination with a psychiatrist. The Veteran reported symptoms of lack of concentration, irritability, hopelessness, difficulty sleeping, and argumentative attitude. They occurred on a daily basis and were severe. MSE was notable for a constricted affect and unsatisfied mood. Thought process was illogical and thought content was notable for preoccupation with one or two topics. The Veteran reported a sleep impairment affecting his daytime activities, described as a poor feeling. Memory was normal. The Veteran’s occupation was noted as United States Postal Service (USPS) and real estate agent. The Veteran was not currently employed. The psychiatrist diagnosed schizophrenia. He reported that the symptoms were controlled by continuous medication. In September 2009, the Veteran stated that he needed psychiatric treatment and appears to reference thought processes indicative of poor insight and paranoia. September 2009 VA Social Worker consultation noted severe financial distress as the Veteran’s primary stressor. The Veteran exhibited anhedonia and fatigue consistent with dysthymia. November 2009 VA MH records included reports that the Veteran’s wife threatened to involuntarily commit him due to his poor business decision making. His wife feared he would lose more money. He expressed frustration that finding another job would be impossible due to his age and illness. He stated that he was a changed person, citing poor sleep and concentration. He did not have a plan to alleviate his economic difficulties. MSE and assessment were substantially similar to prior reports. February 2010 VA MH records noted reports about poor health. The Veteran cited high blood pressure measurements, anxiety, poor concentration, and anhedonia. He indicated that reached an agreement with the banks about foreclosing his properties. He reported having no choice in the matter. He was arguing with his wife about working. He wanted to continue working and tied work to his feelings of self-worth. The clinician noted that the Veteran was considering private psychiatric treatment due to his distrust of VA. MSE and assessment were substantially similar to prior reports. For the following reasons, the Board finds that a November 13, 2008 effective date, but no earlier, for a 100 percent for service-connected schizophrenia is warranted. 38 C.F.R. §§ 3.400(o), 4.3, 4.7. The November 13, 2008 VA primary care records are the first factually ascertainable evidence of an increase in schizophrenia symptoms. Id.; see also Swain v. McDonald, 27 Vet. App. 219, 224 (2015). His symptoms identified at this time included poor memory, sleep and audiovisual hallucinations, among others. He was unable to manage them but does not report a specific date of worsening. Thus, November 13, 2008 is within the one year look back period of the June 23, 2009 increased rating claim and it is the first factually ascertainable report of worsening. It is an appropriate effective date for finding an increase. Id.; 38 C.F.R. § 4.130, DC 9201. From November 13, 2008, the Veteran regularly sought MH treatment and was no longer earning income in his business. He specifically reported that he did not believe he could work again, due in substantial part to psychiatric illness. His symptoms included depression, anxiety, irritability, and poor concentration, as well as audiovisual hallucinations. Although the clinicians characterized the Veteran’s audiovisual hallucinations as non-malignant, he reported them as a persistent problem. The record also alludes to more severe schizophrenia symptoms that do not appear to be fully captured in the clinical assessments. November 2008 VA primary care records reference threatening behavior or violent ideation towards VA clinicians. June 2009 VA treatment records note severe memory problems with daily activities. The August 2009 VA psychiatrist assessed illogical thought processes and thought disturbances. Then, the Veteran’s September 2009 statements are also indicative of poor thought process and psychiatric symptoms that required regular treatment. There is also a November 2009 report about the Veteran’s wife threatening psychiatric hospitalization because of his poor daily decision-making function. The Board finds that these reports suggestive of schizophrenia symptoms of a frequency, severity and durations that more nearly approximate the total rating criteria. The Board notes the conflicting evidence from VA treatment records and the August 2009 VA examination report. It appears VA clinicians minimized the Veteran’s audiovisual hallucinations as mild from the non-malignant characterization. However, this determination is not explained or clarified in better detail, and as noted above, there is indication of severe symptoms not adequately captures within the clinical assessments. The Board has considered that the August 2009 VA examination report characterizes the Veteran’s schizophrenia symptoms as mild. However, the psychiatrist in this report also referenced the Veteran’s symptoms as severe and noted an illogical thought process. Thus, the Board considers the August 2009 VA examination report inconsistent. The Board also observes that from several of the Veteran’s reports, he is hesitant or distrustful of VA clinicians and may not disclose all his symptoms to VA clinicians for reasons such as his wife’s threat of involuntary hospitalization. Given these circumstances, the Board does not find these reports probative to show schizophrenia symptoms more nearly approximating a lesser degree of impairment. For the foregoing reasons, the Board finds that PTSD symptoms more nearly approximated the total rating criteria from November 13, 2008, the first date a factual increase in disability was shown within the one year look back period for the June 23, 2009 increased rating claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, 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.