BVA9506318 DOCKET NO. 93-11 216 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date, prior to September 30, 1991, for a grant of a total disability evaluation for a schizo- affective disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from July 1982 to June 27, 1988. This appeal arose from a March 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The representative at the Board has raised the issues of clear and unmistakable error in the November 2, 1989 RO rating decision denying entitlement to service connection for hearing loss. Since these issues have not been prepared or certified for appellate review, they are referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his psychiatric disability was productive of total disablement at the time of his separation from active service, thereby warranting entitlement to a 100 percent evaluation retroactive to the day following the date of his separation from active service. He states that he was awarded Social Security disability benefits while still in service although payments did not commence until six months after his discharge. It is argued that his repeated hospitalizations since separation from service and lack of employment clearly show that he was totally disabled due to his psychiatric disability upon discharge from service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against an effective date prior to September 30, 1991, for a grant of a 100 percent evaluation for schizo-affective disorder. FINDINGS OF FACT 1. The veteran submitted an application for increased compensation on the basis of unemployability in February 1992. 2. Schizo-affective disorder is not shown to be productive of total disablement earlier than September 30, 1991, when the veteran was reported to have repeated hallucinations, and to be hypomanic, with some decompensation since an August 1991 appointment. CONCLUSION OF LAW The requirements for an effective date prior to September 30, 1991, for a grant of a 100 percent evaluation for schizo- affective disorder have not been met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 1991); 38 C.F.R. §§ 3.400, 4.7, 4.132, Diagnostic Code 9205 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has found that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1 and 4.2, and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the veteran's schizoaffective disorder. The Board has found nothing in the historical record which would lead to a conclusion that the current evidence of record is inadequate for rating purposes. Factual Background In a September 1988 rating decision, the RO granted entitlement to service connection for a psychotic disorder, not otherwise specified, and assigned a 50 percent evaluation effective June 28, 1988. The veteran was notified of this determination and of his right to appeal, however, the appellant did not timely file a notice of disagreement with the determination. On March 25, 1989, the appellant's mother submitted on his behalf a claim for increased compensation benefits for service-connected psychiatric disability. The appellant's mother further reported that the veteran had been admitted to a hospital for treatment. The RO denied entitlement to an increased evaluation for the appellant's psychiatric disability when it issued a rating decision in April 1989. On May 10, 1989 a letter from Fernando M. Siles, M.D., was received which advised that the veteran had been hospitalized for psychiatric purposes from February 2, to March 20, 1989. His discharge diagnoses were depressive disorder, paranoid personality disorder, irritable bowel syndrome, and chronic prostatitis. Due to the above illnesses the appellant was considered to be disabled and unable to work. He was considered to be 100 percent disabled since his daily activities were considered to be very much impaired by physical and emotional handicaps. The claimant was noted to be bothered by constant anxiety and was unable to cope with the stressors of every day living. Additionally he had severe colon spasms and intermittent gastrointestinal bleeding. The veteran was again privately hospitalized on August 24, 1989. It was noted that he had taken an overdose of Vistaril "to go to sleep for a long time," together with a half pint of alcohol. The veteran had lost his job as a volunteer fireman, and had taken the overdose on the day of admission. He was noted to have a history of psychiatric problems. The clinical assessments were overdose of Vistaril and alcohol, post lavage; no history of other drug ingestion; and suicide attempt versus suicide gesture. The appellant was hospitalized by VA from August 25 to August 28, 1989. It was noted he had situational factors at the time of admission which contributed to his panic disorder, specifically, he had recently lost his job as a volunteer fireman. This severely impacted on his self esteem and anxiety. He felt that his life had no meaning as a result of being unable to work out his problems. The final discharge diagnoses included panic disorder with agoraphobia, mixed personality disorder, and status post Vistaril overdose. In a November 1989 rating decision, the RO granted a temporary total evaluation for the veteran's psychotic disorder effective from February 2, 1989, to March 31, 1989; and reinstated the previous 50 percent evaluation effective April 1, 1989. In a subsequent rating decision a few days later, the RO denied entitlement to an increased evaluation for the appellant's psychiatric disability. The veteran was hospitalized by VA from January 17, 1990, to February 28, 1990. He came to the emergency room on the day of admission complaining of not being able to sleep for prior two days. He admitted to suicidal thoughts of wanting to shoot himself. He also admitted to using a BB gun for the past several days. He stated that he was feeling nervous and strung out and requested help. On interview the veteran complained of a lack of motivation for the past month, of feeling lonely and of having no friends. He admitted to feeling scared to go to sleep for fear of having dreams of being placed on four point restraints as was the case while he was in service. The appellant appeared sad and tearful when he spoke about it. At the time of discharge it was felt that he was capable of working. In an April 1990 rating decision, the RO granted a temporary total evaluation based on hospital treatment for service- connected psychiatric disability rediagnosed as bipolar affective disorder, effective from January 17, 1990, to February 28, 1990; and reinstated the prior 50 percent evaluation effective March 1, 1990. The veteran was hospitalized by VA from July 26, 1990, to August 10, 1990. It was noted he had become noncompliant with medications, at which time he developed pressured speech, decreased need for sleep, increased paranoia, and irritability. He stated that he was "burning the candle at both ends." His neighbors reported his behavior to his parents, who took him to a local private hospital. He was restarted on medication. The examiner noted that the veteran had a history of being manipulative with repeat suicidal threats utilized as a means of obtaining a secondary goal or attention. At the time of discharge he was considered stable and improved, and a global assessment of functioning score of 60 was assigned. The RO denied entitlement to an increased evaluation for the claimant's psychiatric disability in a November 1990 rating decision. The veteran requested increased compensation benefits in November 1990. The veteran was hospitalized by VA from October 1, to October 16, 1990. He reported that his sponsor in a community placement residence was not conscientious in dispensing his medication to him, and that his symptoms began to recur. Among them were crying, sleeplessness, and decreased appetite, energy, and concentration. The veteran stated that he felt watched, stared at, and isolated by others. The appellant reported that he could hear a computer running, and people calling out to him when he was alone at night and during the day. He reported that he had previously made suicidal gestures and begun to consider suicide by overdose or motor vehicle accident. At the time of discharge he was considered stable, and a global assessment of functioning score of 50 was assigned. The veteran was readmitted on October 17, 1990. The treating physician observed that the veteran's prior admission had been terminated against medical advice. The veteran reported that he had not been taking his medications and was angry at everyone. His mother encouraged him to return to the hospital. He reported that he was "barely in control," and felt that he was vacillating from rage to feeling okay. Among his symptomatologic complaints at admission were crying spells, a depressed mood, and decreased sleep, appetite and energy. He admitted that he was having auditory hallucinations and problems with telephones and computers "sending messages" to him. During the course of his hospitalization, however, the veteran was judged to have improved, and to be very helpful and compliant. The treating physician opined that the veteran was able to return to his prehospitalization activities, and his mental status was judged to be stable. A global assessment of functioning score of 70 was assigned. The discharge diagnoses were schizoaffective disorder and dependent personality disorder. In a December 1990 rating decision the RO granted a temporary total evaluation based on hospital treatment for service- connected psychiatric disability rediagnosed as schizoaffective disorder effective from October 1 through November 30, 1990; and reinstated the prior 50 percent evaluation effective December 1, 1990. In April 1991, the veteran requested entitlement to increased compensation benefits for his psychiatric disability. The veteran was hospitalized by VA from March 20 to April 17, 1991. He reported possible social disagreements in his apartment complex leading to his suggested eviction by apartment management. Following these developments he became increasingly paranoid, had rapid mood swings, described some suicidal ideation, and feared that he would act out violent or assaultive impulses without control. Antipsychotic medication was continued. At discharge the veteran was alert, oriented, and without overt paranoia, delusions, or hallucinations. His affect was appropriate, and judgment was deemed to be good. No comment was entered as to the veteran’s industrial impairment, although no restriction was placed on the him physically. A global assessment of functioning score of 70 was assigned at discharge. The relevant discharge diagnoses were schizoaffective disorder, depressed, and dependent personality disorder. In April and May 1991 rating decisions the RO granted entitlement to a temporary total evaluation based on hospital treatment for schizoaffective disorder effective from March 20, to April 30, 1991; and reinstated the prior 50 percent evaluation effective May 1, 1991. An April 1991 occupational therapy work note recorded that the veteran had been able to follow through with plans on a more creative and challenging project. The veteran was observed to use goal problem solving skills. In July 1991 the veteran requested increased compensation benefits for his psychiatric disability. The RO denied entitlement to an increased evaluation for schizoaffective disorder when it issued a rating decision in August 1991. A VA mental health clinic record dated on September 30,1991, shows that the veteran was found to be mildly hypomanic with some decompensation since his last appointment in August 1991. He was noted to have reported auditory hallucinations. The veteran requested entitlement to increased compensation benefits for his psychiatric disability in November 1991. In a February 1992 application for increased compensation based on unemployability the veteran reported that he had been too disabled to work since service. He reported having four years of high school. In February 1992, the veteran provided a statement from the Social Security Administration pertaining to his award of disability benefits. He also submitted correspondence from the service department noting that he had been removed from the temporary disability retirement list, and placed on permanent disability retirement with a 70 percent evaluation for his psychiatric disability. The veteran testified as to the severity of his psychiatric disability at an RO hearing held in December 1992. He testified that his psychiatric disability had rendered him unemployable since discharge from service. The claimant stated that he had sought employment at a restaurant, but had not been hired. Analysis The veteran essentially contends that his psychiatric disability has been productive of total disablement since his separation from service. He is of the opinion that his 100 percent evaluation should be effective retroactive to the June 28, 1988, the day following his discharge from service. The Board, however, after reviewing the evidence of record finds that the preponderance of the evidence is against an effective date prior to September 30, 1991, for a grant of a 100 percent evaluation for schizo-affective disorder. The veteran's schizoaffective disorder is rated under diagnostic code 9205 of the VA Schedule for Rating Disabilities. A 50 percent evaluation requires considerable impairment of social and industrial adaptability. A 70 percent evaluation requires lesser symptomatology than for a 100 percent evaluation, such as to produce severe impairment of social and industrial adaptability. A 100 percent evaluation may be assigned for active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. 38 C.F.R. § 4.132. The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2). A review of the record shows that beginning in March 1989, either the veteran, or the veteran’s mother acting on his behalf, have sought an increased evaluation for the service connected schizo- affective disorder. In rating decisions issued in November 1989, April 1990, December 1990, and May 1991 the veteran, pursuant to 38 C.F.R. § 4.29 (1994), was awarded temporary total disability evaluations based on the periods of hospitalization discussed above which exceeded 21 days in length. On each occasion, following the termination of the temporary total rating the evaluation for the veteran’s schizo-affective disorder was restored to the prior 50 percent rating. Significantly, the veteran did not appeal from any of these decisions, and as such, those rating decisions are final. 38 U.S.C.A. § 7105 (West 1991). Indeed, it is well to observe that each claim presented by the veteran was a new claim, based on a new present level disability as manifested by a more recent need for hospitalization. In light of the foregoing, the earliest possible effective date for the assignment of a 100 percent rating for the veteran’s schizo-affective disorder is one year prior to his November 1991 submission of a claim for increase. 38 U.S.C.A. § 5110. In examining when total disability was first manifest during the year prior to the veteran’s November 1991 submission the Board observes that at discharge from a VA hospital in November 1990, he was assigned a temporary total rating for the period from October 1, 1990 to November 30, 1990. Significantly, however, by the date of the veteran’s November 1990 discharge from the hospital, his disorder was judged by his treating physician to have improved, and his global assessment of functioning score increased. Accordingly, there is no basis to award an earlier effective date for a total disability evaluation based on this period of care. The Board turns then to an examination of the veteran’s hospitalization which terminated in April 1991. Significantly, this examination shows that at discharge the veteran was alert, oriented, and without overt paranoia, delusions, or hallucinations. His affect was appropriate, and judgment was deemed to be good. No comment was entered as to the veteran’s industrial impairment, although no restriction was placed on the veteran physically. The veteran’s global assessment of functioning score was unchanged at discharge. Hence, in view of the absence of the psychiatric symptomatology required for a 100 percent rating, or evidence that the veteran’s disorder precluded substantially gainful employment, the VA hospital reports from March and April 1991 also do not provide the basis upon which to award an earlier effective date for a 100 percent rating for schizo-affective disorder. A similar conclusion is reached when examining an April 1991 occupational therapy report which found the veteran able to follow through with plans concerning a more creative and challenging project. This leaves the veteran’s outpatient records which formed the basis for the currently assigned September 30,1991, effective date. These records, which were secured from the Dallas VA Medical Center, do not reveal any indication of such symptomatology as active hallucinations prior to September 30, 1991, and there is no evidence prior to that date that the veteran’s schizo-affective disorder precluded him from earning a living wage. In view of all of the foregoing, the Board concludes that the preponderance of the evidence is against the veteran's claim for an earlier effective date for a 100 percent evaluation for schizo-affective disorder. In reaching this decision the Board considered the contention that the veteran is receiving Social Security disability benefits, and that he has been placed on the Permanent Disability Retired List by the military. Significantly, however, the military only awarded the veteran a 70 percent disability evaluation effective from November 7, 1991, and the Social Security Administration’s payments were effective beginning in December 1991. As both of these dates postdate the currently assigned effective date for a 100 percent disability evaluation, the Board concludes that this evidence does not provide a basis upon which to grant the benefit sought on appeal, particularly when this evidence is viewed in light of all of the evidence of record. ORDER Entitlement to an effective date, prior to September 30, 1991, for a grant of an increased evaluation of 100 percent for schizoaffective disorder, is denied. DEREK R. BROWN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.