Citation Nr: 21032461 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 14-07 018A DATE: May 27, 2021 ORDER Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU), prior to February 28, 2011, is granted. REMANDED Entitlement to an initial evaluation in excess of 70 percent for chronic paranoid schizophrenia, prior to February 28, 2011, is remanded. FINDING OF FACT Prior to February 28, 2011, the Veteran's service-connected chronic paranoid schizophrenia prevented him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU, prior to February 28, 2011, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1972 to March 1974. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country. A June 2020 Board decision granted a 70 percent evaluation, but no higher, for the Veteran's service-connected chronic paranoid schizophrenia, prior to February 28, 2011. Previously, a March 2017 rating decision had assigned a 100 percent evaluation, effective January 29, 2013, and an April 2018 Board decision had assigned a 100 percent evaluation from February 28, 2011 to January 29, 2013. The Veteran appealed the June 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Partial Remand (Joint Motion) in February 2021, requesting that the Court vacate that part of the June 2020 Board decision that denied an initial evaluation in excess of 70 percent for chronic paranoid schizophrenia prior to February 28, 2011, and remand the matter for readjudication. In part, the parties noted that the Board erred by not addressing whether the issue of entitlement to a TDIU, prior to January 29, 2013, was reasonably raised by the record. By a February 2021 order, the Court granted the Joint Motion and remanded the matter for compliance with its instructions. The Board observes that during the pendency of the increased evaluation appeal, the Veteran submitted a VA Form 21-8940 claiming TDIU in August 2013. A May 2014 rating decision assigned a 70 percent evaluation for the Veteran's chronic paranoid schizophrenia, effective January 29, 2013. The rating decision also granted TDIU based on the Veteran's chronic paranoid schizophrenia, effective January 29, 2013. The Veteran's August 2013 claim for TDIU was based on his chronic paranoid schizophrenia. The Veteran's appeal thus includes a form of TDIU claim known as a Rice TDIU, because it was raised during the administrative appeal of the Veteran's claim for an increased rating for a particular service-connected disability and it is, therefore, a component of that claim for benefits related to that disability. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Id. In light of the above-discussed procedural history, the Veteran's Rice TDIU arises as part of his appeal for higher compensation for his service-connected chronic paranoid schizophrenia. Because this Rice TDIU claim is part and parcel of the Veteran's appeal for increased disability compensation for chronic paranoid schizophrenia, the rating period for consideration spans back to March 4, 1999, the date of receipt of the Veteran's claim for service connection for a psychiatric disorder. The April 2018 Board decision awarded a 100 percent schedular rating for the Veteran's chronic paranoid schizophrenia from February 28, 2011, to January 29, 2013, so the matter of TDIU is moot from February 28, 2011. Accordingly, in the present decision the Board addresses entitlement to a TDIU prior to February 28, 2011. The rating period on appeal for the TDIU issue spans from March 4, 1999, to February 27, 2011. The TDIU issue is now before the Board for final appellate consideration. The Board addresses the chronic paranoid schizophrenia issue in the REMAND section below. TDIU As noted above, the rating period on appeal for the TDIU issue spans from March 4, 1999, to February 27, 2011. The Veteran contends that his service-connected chronic paranoid schizophrenia rendered him unemployable and thus entitled to a TDIU, prior to February 28, 2011. During the February 2003 DRO hearing, the Veteran testified that he had been hospitalized five times. He seemed not to satisfy employers and had been keeping a job on the average of six months. At his current job at a hotel, after he was hospitalized in November, he was demoted from front desk clerk to porter. In a March 2011 statement, the Veteran stated that he had not worked in eight years. He was an accountant by profession and had worked at the Department of Defense for ten years, and the state of Louisiana and private employers for eighteen years as an accountant. His last job was as a front desk clerk at a Best Western Hotel in April 2003. He had been on 100 percent disability with the Social Security Administration (SSA) since April 2003 for a psychological disorder and depression. No one would hire an accountant who had not worked in 8 years due to psychological disorder/depression. He was hospitalized in November 2002 while working at Best Western. They took him off the front desk and told him the only way he could continue working for them was to be a porter. Then, they laid him off in April, one week before his one year of employment, which would have given him permanent benefits. He listed his past jobs and stated that in each he had been hospitalized, laid off, or walked off and then hospitalized. On an August 2013 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran stated that he became too disabled to work, and last worked fulltime, in February 2003. From February 2002 to January 2003, he worked at a Best Western Hotel; from January 1999 to September 2000, he worked as an electrical apprentice; and from June 1998 to January 1999, he worked in accounting for the Louisiana State CPA Board. He had completed two years of college and had training in accounting and electrical before becoming too disabled to work. He had not had any education or training since he became too disabled to work. Turning to evidence dated during the appeal period, a March 1999 report from a VA social worker relates that since beginning counseling at that facility in March 1998, the Veteran had been hospitalized on three separate occasions, with each episode focusing on increasing depression, paranoia and suspiciousness surrounding his feeling as if someone was attempting to harm him. Each hospital course was triggered by occupational stressors. The Veteran was treated for paranoia, anxiety, depression, and suspiciousness. The Veteran reported experiencing difficulties in maintaining some social relationships and that his occupational endeavors had been tenuous. He also reported feeling pressured or threatened by his superiors, decreased work efficiency, and intermittent periods of inability to perform certain tasks. In addition, he reported diminished motivation in continuing in his profession of accounting and difficulty focusing. Hospital treatment records from the N.O.M.H.C. dated in September 1999 show that the Veteran was treated for extreme paranoia. In a subsequent psychiatric evaluation, he described depression and stated that he felt that he and his family were in danger. He added that he felt that he was watched by the federal government because he had sued them. In March 2001, the Veteran reported paranoia, feeling uptight and a history of paranoia attacks. He also reported feeling that he was being watched and that his phone was "bugged as part of an investigation." In addition, he reported experiencing insomnia due to staying up and watching over his family. In letters received in February 2002, the Veteran's mother and brother reported instances of the Veteran's paranoia, including paranoia involving the federal government and his Naval service. VA hospital treatment records dated in November 2002 show that the Veteran was hospitalized with an admitting diagnosis of psychosis. He reported hearing God talking to him. He reported that he felt paranoid "thinking the lives of the people in [his] community are in danger and that [he is] the cause of it." A VA mental disorders examination report dated in June 2004 shows that the Veteran reported being unable to get a job and on SSA disability. He had not worked for the last 12 months. The examiner pointed out that no matter where the Veteran worked, the Veteran constantly stated that the reason he was fired was because he was discriminated against and people were trying to get him fired and find fault in his work, and in general the Veteran was somewhat paranoid about this. In general, the Veteran had a good work history, he was always trying to find a job but left jobs because he felt he was discriminated against, so in a sense he had a poor work history because he was constantly leaving jobs, feeling racially discriminated against. The examiner noted that the Veteran had paranoid ideation concerning discrimination and paranoia in almost every job, authority, or position or situation that involved authority, and ended up feeling discriminated against and getting his job taken away or losing his job. A VA mental disorders examination report dated in November 2008 shows that the Veteran reported auditory hallucinations, depressed mood, insomnia, and nightmares. He also indicated that his depression was less frequent due to his medicine. Mental status examination revealed paranoid delusions, persistent auditory hallucinations and sleep impairment. The examiner determined that the Veteran's symptoms did not result in total occupational and social impairment, or deficiencies in the areas of judgment, thinking, work, moor or school. The Veteran's symptoms did result in reduced reliability and productivity. However, at the same time, the examiner explained that the Veteran's main dysfunction was in the area of work. Every time he worked, he ended up feeling very paranoid that he was being discriminated against racially/sexually and decompensated and had psychological admissions [to hospitals]. The examiner stated that the Veteran seemed very sincere and did not seem to exaggerate his symptoms or history of symptoms. Turning to the relevant law, 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher. 38 C.F.R. § 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In the present case, the Veteran's only service-connected disability is chronic paranoid schizophrenia. It is rated as 70 percent disabling from March 4, 1999, and as 100 percent disabling from February 28, 2011. Thus, he meets the schedular criteria for TDIU for the entire appeal period prior to February 28, 2011. 38 C.F.R. § 4.16(a). The Board finds that the foregoing evidence supports the award of a TDIU. The treatment records and VA examination reports show that for the period prior to February 28, 2011, the Veteran's chronic paranoid schizophrenia made him believe that his employers discriminated against him, and that people tried to get him fired and found fault in his work. As a result of the chronic paranoid schizophrenia, the Veteran was accordingly unable to keep jobs. The Board observes that the Veteran was unable to keep jobs ranging from accountant to hotel porter. The Board finds it significant that the November 2008 VA examiner noted that the Veteran seemed very sincere and did not seem to exaggerate his symptoms or history of symptoms. The Board acknowledges that the November 2008 VA examiner found that the Veteran's symptoms only resulted in reduced reliability and productivity. Nevertheless, the Board finds that her observation that the Veteran's main dysfunction was in the area of work, and every time he worked, he felt very paranoid, decompensated and had psychological admissions to hospitals, supports a TDIU. Considering the severity of the Veteran's service-connected chronic paranoid schizophrenia and related functional impairment, as shown by the foregoing evidence, the Board finds that a TDIU, prior to February 28, 2011, is warranted. The Board points out that the present decision that a TDIU is warranted prior to February 28, 2011, does not rely on the Veteran's assertion that SSA found him disabled as of April 2003 for a psychological disorder and depression. The record currently before the Board does not contain any SSA determinations or corresponding records which would corroborate the Veteran's assertion. Regardless, the record before the Board at this point supports a TDIU prior to February 28, 2011. REASONS FOR REMAND The Board remands this issue to obtain an SSA determination and corresponding records. As noted above, the Veteran asserts that SSA found him disabled as of April 2003 for a psychological disorder and depression. The record contains an SSA Benefits Planning Query produced in March 2014. It reflects that the Veteran received Social Security Disability Insurance with a date of disability onset of July 1, 2003. VA attempted to obtain the Veteran's records from SSA in October 2012. A December 2012 response from the SSA National Records Center relates that there were no medical records. Unfortunately, a close review of the request and response reveals that VA requested information for the wrong Veteran. As a result, the Veteran's VA e-folder does not contain any SSA determination or records. The appeal period for this increased initial evaluation claim begins March 4, 1999, the date of receipt of the Veteran's claim for service connection for a psychiatric disorder. As a result, medical records from SSA, which would show entitlement to SSA disability benefits as of July 1, 2003, are potentially relevant. See Golz v. Shinseki, 590 F.3d 1317, 1322 (2010). A remand is required to allow VA to request these records. (Continued on the next page) The matter is REMANDED for the following action: Obtain and associate with the record all relevant records, including disability determinations and medical records, from SSA pertaining to the Veteran. MAX P. SALAZAR, JR. Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Davitian, 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.