Citation Nr: 22018386 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-30 443 DATE: March 29, 2022 ORDER Entitlement to a 70 percent evaluation, but no higher, for unspecified schizophrenia spectrum and other psychotic disorder prior to November 1, 2019, is granted. Entitlement to a total evaluation based upon individual unemployability due to service-connected disability (TDIU) prior to November 1, 2019, is denied. Entitlement to TDIU on or after November 1, 2019, is dismissed. FINDINGS OF FACT 1. Prior to November 1, 2019, the Veteran's unspecified schizophrenia spectrum and other psychotic disorder was productive of occupational and social impairment with deficiencies in most areas, but not total social and occupational impairment. 2. Prior to November 1, 2019, the Veteran met the schedular requirements for TDIU, but his service-connected disability did not preclude him from securing or following a substantially gainful occupation. 3. Since November 1, 2019, the Veteran has been assigned a 100 percent schedular evaluation for unspecified schizophrenia spectrum and other psychotic disorder, and he has no other service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for 70 percent evaluation, but no higher, for unspecified schizophrenia spectrum and other psychotic disorder prior to November 1, 2019, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.130, Diagnostic Code 9201. 2. Prior to November 1, 2019, the criteria for TDIU have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 3. The appeal as to the issue of entitlement to TDIU on or after November 1, 2019, has been rendered moot based on the receipt of a 100 percent evaluation for unspecified schizophrenia spectrum and other psychotic disorder. 38 U.S.C. §§ 1114 (s), 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.350(i), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran and his spouse, M.B. (initials used to protect privacy), testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. The Board remanded the case for further development in September 2019. That development was completed, and the case has since been returned to the Board for appellate review. During the pendency of the appeal, in a July 2020 rating decision, the agency of original jurisdiction (AOJ) increased the evaluation to 100 percent for unspecified schizophrenia spectrum and other psychotic disorder effective from November 1, 2019. Nevertheless, a claimant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and a claim remains in controversy where less than the maximum benefit available is awarded. AB v. Brown, 6Vet. App.35, 38 (1993). Thus, the issue remains on appeal for the period prior to November 1, 2019. Law and Analysis The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he or she filed the claim for increase, the present level of the veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, 37312 (Fed. Cir. Dec. 17, 2021) (benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other). In this case, the Veteran's service-connected unspecified schizophrenia spectrum and other psychotic disorder is currently assigned a 50 percent evaluation prior to November 1, 2019, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9201. Under Diagnostic Code 9201, a 50 percent disability evaluation is assigned for 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating for PTSD is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; 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); and the inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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; and memory loss for names of close relatives, own occupation or own name. The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to a 70 percent evaluation, but no higher, for his service-connected schizophrenic reaction paranoid disorder prior to November 1, 2019. Resolving any reasonable doubt in the Veteran's favor, his disability picture, to include the severity, frequency, and duration of his symptoms, as well as the resulting impairment of social and occupational functioning, is more consistent with a 70 percent rating. As noted above, a 70 percent evaluation is warranted when the psychiatric disorder results in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; 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 work-like setting); and inability to establish and maintain effective relationships. The evidence reflects that the Veteran has intermittent symptoms, including paranoia, anxiety, irritability, angry outbursts, and hallucinations. In fact, an April 2016 VA treatment record documented that he was escalated, angry, and yelling and his treatment provider, and a February 2017 VA treatment record noted that he gets angry and makes threats. In April 2017, the Veteran's wife reported that he had marked agitation and aggressive tendencies. An April 2017 VA examiner also indicated that he was prone to angry outbursts and had atypical auditory hallucinations, psychomotor restlessness, and a somewhat disorganized thought process. A November 2018 VA treatment record further noted that the Veteran has a history of delusional thinking and paranoid ideation. Although the Veteran has repeatedly denied having suicidal ideation, a November 2018 VA treatment record shows that he did report experiencing such thoughts at that time. As set forth above, suicidal ideation is one of the symptoms associated with a 70 percent disability rating. Suicidal ideation involves a range from a passive wish not to awaken in the morning or a belief that others would be better off if the individual were dead, to transient but recurrent thoughts of committing suicide, to a specific plan. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Court has held that the criteria for a 70 percent rating "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." Id. Moreover, a March 2020 VA examiner noted that the Veteran exhibited auditory hallucinations with reports that his cousin and mother talk to him; disorganized speech with frequent derailment of conversational theme; diminished volition; and markedly deterioration in interpersonal and work functioning. Notably, she indicated that there had been continuous signs of those symptoms over the past year, which would have been prior to November 1, 2019. Based on the foregoing and resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran has demonstrated a level of impairment consistent with the 70 percent criteria prior to November 1, 2019. Thus, a 70 percent evaluation is warranted prior to November 1, 2019. The Board has also considered whether the Veteran is entitled to an evaluation in excess of 70 percent for unspecified schizophrenia spectrum and other psychotic disorder at any time prior to November 1, 2019. However, the record does not reflect total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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; and memory loss for names of close relatives, own occupation, or own name. The April 2017 VA examiner also found that the Veteran had occupational and social impairment with reduced reliability and productivity. Such a finding is commensurate with a 50 percent evaluation. Moreover, to the extent that any of the symptoms contemplated in the rating criteria for a 100 percent evaluation or symptoms of similar severity may be shown or argued, the Board finds that the Veteran's disability has not been productive of total occupational and social impairment. The Board emphasizes that a 100 percent disability evaluation requires both total social and occupational impairment. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). The Veteran's occupational impairment will be addressed below in the decision regarding TDIU. However, even if the Veteran did have total occupational impairment due to his unspecified schizophrenia spectrum and other psychotic disorder prior to November 1, 2019, the weight of the evidence does not persuasively show that he had total social impairment. Indeed, the Veteran remained married to his wife of over 20 years and indicated that he socialized with his family. He also reported going to church on a monthly basis. See e.g., April 2017 VA examination report. Thus, given that he maintained relationships, it cannot be said that the Veteran had total social impairment during this time period. After considering the evidence of record, the Board finds that the Veteran's symptoms and resulting impairment more closely approximate the criteria for a 70 percent disability rating prior to November 1, 2019. Overall, the Veteran has not demonstrated a level of impairment consistent with the 100 percent criteria, nor have the Veteran's symptoms caused total occupational and social functioning referenced by the 100 percent evaluation criteria. Mauerhan, supra, Vazquez-Claudio, supra. The criteria for the next higher rating of 100 percent have not been met or approximated for this time period. See 38 C.F.R. § 4.130, Diagnostic Code 9201. Therefore, the Board finds that the Veteran's PTSD warrants a 70 percent rating, and no higher, prior to November 1, 2019. The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TDIU All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists 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, 4.16(b). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases 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). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992). 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. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. Prior to November 1, 2019 In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to TDIU prior to November 1, 2019. In light of the decision above, the Veteran is currently assigned a 70 percent evaluation for unspecified schizophrenia spectrum and other psychotic disorder prior to November 1, 2019. He does not have any other service-connected disabilities. Thus, he meets the schedular evaluation for TDIU during this time period. Nevertheless, the Board finds that the evidence does not show that the Veteran was unemployable due to his service-connected disability prior to November 1, 2019. The Veteran has reported obtaining a college degree in radio and television and working at various jobs in that field, including as a disc jockey and cameraman. He also worked in food service, including a part-time job at a VA Medical Center from 2009 to 2014 during which he delivered food to patients. He told the April 2017 VA examiner that this latter job was very stressful for him because he would get attached to veterans who would die. He indicated that he retired because he could not handle the job mentally. However, the Veteran reported that he then took a part-time job through an employment agency doing food service work and that he was starting a new job at a college shortly after the April 2017 VA examination. He noted that he preferred to work with less people and older individuals. During the June 2019 hearing, the Veteran testified that he was no longer employed, but he indicated that he had worked until he reached the age of retirement. The Board acknowledges that a VA physician submitted an August 2018 statement indicating that the Veteran has a diagnosis of schizoaffective disorder and that she recommended that he remained retired due to multiple medical issues, including that disorder. The same physician provided a March 2019 statement reiterating that the Veteran has multiple medical conditions and is not able to work. She later indicated in November 2019 that the Veteran not employable due to episodes of irritability and agitation and other medical issues, including high blood pressure and diabetes. However, the Board notes that the Veteran is only service-connected for a psychiatric disability and cannot consider any nonservice-connected disabilities in making this determination. Thus, the physician's statements have limited probative value because she considered nonservice-connected disabilities. Moreover, in July 2020, the AOJ sent a letter to the Veteran advising him that he may be entitled to compensation at the 100 percent rate if he is unable to secure and follow a substantially gainful occupation because of his service-connected disability. He was informed that he should complete, sign, and return the enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, if he believed he qualified. He was also asked to include a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, for each of the employers identified on the VA Form 21-8940. However, to date, the Veteran has not responded or submitted those forms. The Board notes that the "duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190 (1991). A veteran is expected to cooperate in the efforts to adjudicate the claim, and his failure to do so would subject him to the risk of an adverse adjudication based on an incomplete and underdeveloped record. Id. A claimant cannot remain passive when he has relevant information. See Wamhoff v. Brown, 8 Vet. App. 517 (1996). In summary, the available evidence shows that the Veteran has a higher level of education and work experience in various settings. He was also employed in part-time and full-time jobs during part of the appeal period, which demonstrates an ability to work. He also indicated that he was able to work with smaller groups with older individuals. In addition, there is evidence showing that his unemployment is also attributable to other nonservice-connected disabilities, and the Board cannot consider age in determining entitlement to TDIU. The Veteran undoubtedly had industrial impairment prior to November 1, 2019, as a result of his service-connected disability, as evidenced by his 70 percent evaluation. However, the evidence does not establish that his service-connected disabilities preclude gainful employment. The Board notes that "[t]he percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1; see also Van Hoose, 4 Vet. App. at 363 (noting that the disability rating itself is recognition that industrial capabilities are impaired; the record must reflect some factor which takes the case outside the norm) and 38 C.F.R. § 4.15. Thus, after reviewing the record, the Board finds that the disability evaluation assigned under the VA Schedule for Rating Disabilities accurately reflects the Veteran's overall impairment to his earning capacity due to his service-connected disability. Thus, entitlement to TDIU is not warranted prior to November 1, 2019. On or After November 1, 2019 The Veteran has been assigned a 100 percent schedular evaluation for his service-connected unspecified schizophrenia spectrum and other psychotic disorder since November 1, 2019. He currently has no other service-connected disabilities. Because a TDIU evaluation is a lesser benefit than the 100 percent schedular evaluation assigned for the unspecified schizophrenia spectrum and other psychotic disorder, and because the Veteran does not have another service-connected disability, the TDIU claim is moot. See Buie v. Shinseki, 24 Vet. App. 242 (2011) and Bradley v. Peake, 22 Vet. App. 280 (2008). Therefore, the appeal as to entitlement to TDIU on or after November 1, 2019, is dismissed. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.