Citation Nr: 0300095 Decision Date: 01/03/03 Archive Date: 01/15/03 DOCKET NO. 94-18 153A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased rating for manic depression/bipolar disorder, currently rated as 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, his spouse, and W.F. ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The veteran served on active duty from August 1980 to December 1981. This case was previously before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse action by the Department of Veterans Affairs (hereinafter VA) Regional Office in Atlanta, Georgia, (hereinafter RO). In February 2000, a hearing was held before the Board Member signing this document, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7102(b) (West 1991 & Supp. 2002). The development requested by the Board in its April 2000 remand with respect to the issue that has been perfected to the Board has been accomplished, and this case is now ready for appellate review. It is not clear from a review of the record whether the veteran was provided the accounting with regard to any past due benefits owed to him discussed in the introduction to the April 2000 Board decision. This action should be accomplished if it has not already been done so. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the issue addressed in this decision has been obtained by the RO. 2. Severe industrial impairment due to service-connected psychiatric symptomatology is not shown. 3. It is not shown that service-connected psychiatric symptomatology 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 that is intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. 4. There are no extraordinary factors associated with the service-connected manic depression/bipolar disorder productive of an unusual disability picture such as to render application of the regular schedular provisions impractical. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for manic depression/bipolar disorder are not met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 3.400, Part 4, 4.132, Diagnostic Code (hereinafter DC) 9206 (1995); 38 C.F.R. § 4.130, DCs 9432, 9434 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Applicability of the Veterans Claims Assistance Act There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA) codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2002) and implementing regulations 66 Fed. Reg. 45, 620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.316(a). The VCAA eliminates the concept of a well- grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order) (holding that VA cannot assist in the development of a claim that is not well grounded). The VCAA also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. VCAA; see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). In this case, the Board finds that the VA's duties, as set out in the VCAA, have been fulfilled. First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. VCAA codified as amended at 38 U.S.C.A. §§ 5102 and 5103. The veteran was notified of the evidence required for a grant of his claim by supplemental statement of the case dated in September 2002. The Board concludes that the discussion therein adequately informed the veteran of the information and evidence needed to substantiate his claim, thereby meeting the notification requirements of the VCAA. Thus, there is no outstanding duty to inform the veteran that any additional information or evidence is needed. Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. VCAA codified as amended at 38 U.S.C.A. § 5103A. The necessary evidence, to include VA mental hygiene clinic reports dated through October 1998 and reports from an October 2000 psychiatric examination, has been obtained by the RO, and there is no specific reference to any other pertinent records that need to be obtained. Neither the veteran nor his representative has contended that there are additional pertinent records to be submitted by the veteran or obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As such, the Board finds that the development requirements of the VCAA have also been met. In the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The Board concludes that VA has satisfied its duties, as set out in the VCAA, to notify and to assist the veteran in this case. Thus, the Board finds that further development is not warranted. II. Legal Criteria/Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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 required for that rating. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under the provisions of 38 C.F.R. § 4.132, DC 9206 (1995), mild impairment of social and industrial adaptability due to manic depression/bipolar disorder warranted a 10 percent disability rating; definite impairment of social and industrial adaptability a 30 percent disability rating; considerable impairment of social and industrial adaptability warranted a 50 percent disability rating; and severe impairment of social and industrial adaptability warranted a 70 percent disability rating. A 100 percent rating for under these provisions required active psychotic manifestation of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. 38 C.F.R. § 4.132, DC 9206 (1995). These are the "old" criteria, and as set forth below, the rating criteria for psychiatric disorders were changed during the pendency of the appeal. Regulatory changes affecting the rating of psychiatric disabilities enacted during the pendency of the veteran's appeal, 61 Fed. Reg. 52692-52702 (Oct. 8, 1996), codified at 38 C.F.R. §§ 4.125-4.130 (2002) provide, in pertinent part, as follows: Occupational and social impairment due to mild or transient symptoms of manic depression/bipolar disorder which decreases work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication warrants a 10 percent disability rating. 38 C.F.R. § 4.130, DCs 9432, 9434 (2002). Occupational and social impairment, with occasional decrease in work 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 of manic depression/bipolar disorder as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) warrants a 30 percent disability rating. 38 C.F.R. § 4.130, DCs 9432, 9434 (2002). Occupational and social impairment with reduced reliability and productivity due to such symptoms of manic depression/bipolar disorder 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; or difficulty in establishing and maintaining effective work and social relationships warrants a 50 percent disability rating. 38 C.F.R. § 4.130, DCs 9432, 9434 (2002). Occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms of manic depression/bipolar disorder as: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is 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); or an inability to establish and maintain effective relationships warrants a 70 percent disability rating. 38 C.F.R. § 4.130, DCs 9432, 9434 (2002). Total occupational and social impairment due to such symptoms of manic depression/bipolar disorder 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 one's close relatives, occupation, or own name warrants 100 percent disability rating. 38 C.F.R. § 4.130, DCs 9432, 9434 (2002). These are the "new" criteria, and the Board's adjudication below will include consideration of both the "new" and "old" criteria, with the veteran being afforded the benefit of the criteria most favorable to his claim, as appropriate. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). With the above criteria in mind, the relevant evidence will be summarized. The service medical records reflect treatment for a disability characterized as "bipolar disorder, manic." A Medical Board determined that the veteran was unfit for duty due to this condition. After service separation, service connection for a disability listed as "manic-depressive (bipolar disorder)" was granted by a September 1982 rating decision. A noncompensable rating was assigned under 38 C.F.R. § 4.132, DC 9206. This rating was increased to 50 percent by an April 1988 rating decision. Evidence then of record included reports from a VA examination completed in March 1988 reflecting complaints by the veteran that he had difficulty obtaining work and that he could not understand why. It was noted that the veteran became "exceedingly distraught and disturbed" during a simple interview. Reports from a VA examination completed in May 1990 indicated that the veteran was making regular visits to a VA mental hygiene clinic, and that he had difficulty obtaining employment due to the nature of his discharge from service. Thereafter, the 50 percent rating was reduced to 30 percent by rating action in September 1993. Restoration of the 50 percent rating was ultimately granted by the April 2000 Board decision, and as the facts pertinent to this decision were thoroughly addressed in that decision, they will not be repeated herein. Additional relevant evidence includes reports from treatment at a VA mental hygiene clinic in 1998, some following an incident at his place of employment with the United States Postal Service in which he was escorted from the premises by the police. As directed by the Board in April 2000, the veteran was afforded a psychiatric examination in October 2000. The report from this examination reflected the fact the pertinent clinical history had been reviewed. It was indicated the veteran was working as a "temporary" phone installer, although the veteran did indicate he worked forty hours per week. It was reported that there had been an exacerbation of the veteran's psychiatric problems in 1998 stemming from the fact that he did not receive a pay increase to which he felt he was entitled. It was indicated that his therapy had included medication. Upon mental status examination in October 2002, the veteran stated that he was still married. In response to questions, the veteran seemed to be studiously providing only a minimum of information. However, his responses were relevant and logical, and he denied ever having had hallucinations or suicidal or homicidal ideation. Some panic attacks were described. The veteran reported that he was not taking medication at that time. Insight and judgment were fair. The diagnosis following the examination was "Bipolar Disorder, moderate." The Global Assessment of Functioning Score was 46, which essentially represents impairment of social and occupational functioning between "major" and "serious." Applying the "old" and "new" criteria in determining whether entitlement to a rating in excess of 50 percent for the service-connected psychiatric disorder are met, the Board notes first that as it has concluded that "severe" industrial impairment is not shown, entitlement to a 70 percent rating under the "old" criteria are not met. Significant evidence in making this determination to the Board is the fact that the most recent Global Assessment of Functioning Score was higher than one indicative of "severe" impairment of functioning. This score appears to be well-supported by the evidence contained in the reports from the most recent examination, which showed the veteran to be working, and with intact insight and judgment and logical and relevant expression. As for entitlement to a rating in excess of 50 percent under the "new" criteria, because the veteran is not shown to exhibit suicidal ideation; obsessional rituals which interfere with routine activities; speech that is 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; or an inability to establish and maintain effective relationships, a 70 percent rating under the "new" criteria is also not warranted. Also considered by the Board were the provisions of 38 C.F.R. § 3.321(b)(1), which state that when the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for his service- connected disabilities, an extraschedular evaluation will be assigned. To this end, the Board notes that neither frequent hospitalization nor marked interference with employment due to the veteran's service-connected psychiatric disorder is demonstrated, nor is there any other evidence that this condition involves such disability that an extraschedular rating would be warranted under the provisions of 38 C.F.R. § 3.321(b)(1). In making this determination, the Board notes that while it has paid particular attention to the testimony concerning the difficulty the veteran has had maintaining employment, the veteran himself indicated at his most recent examination that he works as much as 40 hours per week. The Board has carefully considered the "positive" evidence represented by the contentions and testimony submitted by and on behalf of the veteran asserting a higher level of disability due to his psychiatric symptoms, such as drastic mood changes and emotional problems that have led to conflicts at the veteran's places of employment, than is reflected by the 50 percent rating currently assigned, but concludes that this subjective evidence is outweighed by the more objective recent "negative" clinical evidence as demonstrated upon psychiatric examination in October 2000. See Francisco v. Brown, 7 Vet. App. at 55 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, the claim for an increased rating must be denied. Gilbert, 1 Vet. App. at 49. ORDER Entitlement to a rating in excess of 50 percent for manic depression/bipolar disorder is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.