Citation Nr: 1229788 Decision Date: 08/29/12 Archive Date: 09/05/12 DOCKET NO. 09-08 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Propriety of the reduction in the rating for service-connected bipolar disorder from 100 percent to 10 percent, effective July 1, 2008. REPRESENTATION Appellant represented by: Matthew D. Hill, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Ishizawar, Counsel INTRODUCTION The appellant in this case is a Veteran who had active duty service from November 1999 to March 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran's notice of disagreement was received in December 2008. A statement of the case was issued in February 2009, and a substantive appeal was timely received. In May 2012, the Veteran testified at a Board video conference hearing before a Veterans Law Judge (VLJ). At the Board video conference hearing, the Veteran submitted additional evidence along with a waiver of RO consideration. To ensure that the complete record is considered, the Board has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system). A review of Virtual VA reveals that additional VA treatment records were associated with the record (in May 2012) after the Veteran's claim was certified to the Board. Under 38 C.F.R. § 20.1304(c), any evidence received by the Board that has not yet been reviewed by the RO must be referred to the RO for their initial consideration unless this procedural right is waived, or unless the Board determines that the benefit to which the evidence relates may be full allowed without such referral. In light of the decision below, which grants the restoration of a 100 percent rating for the Veteran's service-connected bipolar disorder, the Board finds that a waiver for the additional VA treatment records is not necessary. FINDINGS OF FACT 1. A November 2003 rating decision granted service connection for bipolar disorder, rated 100 percent under Diagnostic Code (Code) 9432, effective June 5, 2003; an August 2005 rating decision continued the 100 percent rating assigned. 2. Following a VA examination in November 2007, by a rating decision in January 2008, the RO proposed to reduce the 100 percent rating for bipolar disorder; the Veteran was notified of this decision in January 2008. 3. An April 2008 rating decision implemented the reduction in the rating for bipolar disorder from 100 percent to 10 percent, effective July 1, 2008; the overall evidence did not show sustained improvement to the extent that the Veteran's bipolar disorder was manifested by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. CONCLUSION OF LAW The reduction of the rating for bipolar disorder from 100 percent to 10 percent, effective July 1, 2008, was not in accordance with the governing regulatory criteria; restoration of a 100 percent rating is warranted. 38 U.S.C.A. §§ 1155, 5107, 5112 (West 2002); 38 C.F.R. §§ 3.102, 3.344, 3.400, 4.3, 4.7, 4.130, Code 9432 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. However, inasmuch as the benefit sought is being granted (i.e., the restoration of a 100 percent (maximum) rating for bipolar disorder), there is no reason to belabor the impact of the VCAA on the matter; any notice defect or duty to assist omission is harmless. Accordingly, the Board will address the merits of the claim. B. Legal Criteria, Factual Background, and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Under 38 C.F.R. § 4.130, Code 9411, a 10 percent rating for PTSD is warranted when the evidence shows occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is warranted when the evidence shows 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 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 when the evidence shows 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when the evidence shows 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when the evidence shows total occupational and social impairment, due to such symptoms 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; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Pursuant to 38 C.F.R. § 3.105(e), where a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payment should be continued at their present level. Final rating action will reduce or discontinue the compensation effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.344 provides that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement, will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). The above considerations apply to ratings which have continued for long periods at the same level (five years or more), and do not apply to disabilities which have not become stabilized and are likely to improve. The relevant period for this purpose is calculated from the effective date of the establishment of the former rating to the effective date of the reduction. Since the 100 percent rating for the Veteran's service-connected bipolar disorder was in effect from June 5, 2003, and reduced to 10 percent, effective July 1, 2008, the 100 percent rating was in effect for the requisite five-year period of time as set forth at 38 C.F.R. § 3.344(a) and (b). Therefore, those provisions are directly applicable in this case. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The RO notified the Veteran of the contemplated reduction action by a rating decision issued in January 2008. The April 2008 reduction action was issued 60 days after the proposed action in January 2008, and after the Veteran was notified of her right to challenge the proposed reduction and was afforded an opportunity to present evidence and/or have a hearing. The reduction was made effective no sooner than permitted by regulation. Based on the foregoing, the Board finds that the RO satisfied the requirement of allowing at least a 60-day period to expire before assigning the effective date of reduction. 38 C.F.R. § 3.105(e). Nevertheless, the Board finds that based on the evidence of record, the reduction was not proper. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran's responsibility to show that the disability has worsened. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was implemented, although post-reduction medical evidence may be considered in the context of evaluating whether the disability had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). In order for a rating reduction to be sustained, it must be shown by a preponderance of the evidence that the reduction was warranted. Sorakubo v. Principi, 16 Vet. App. 120 (2002). By a rating decision in November 2003, the RO awarded the Veteran service connection for bipolar disorder, rated 100 percent (under Code 9432), effective June 5, 2003 (date of claim). She was advised that because this disability had been noted to be in reasonable remission by a VA psychiatrist, the assigned evaluation was not considered permanent and was subject to a future examination. In July 2005, the Veteran was advised that a review examination was needed for her service-connected bipolar disorder. Such an examination was completed in August 2005. During the August 2005 VA examination, it was noted that the Veteran's last VA examination had been in September 2003, when she was assigned a Global Assessment of Functioning (GAF) score of 40. Since then she had been seeking mental health treatment from a private healthcare provider about once a month. She also reported that her daily activities consisted of exercising about four times a week, early in the mornings, and then volunteering for the Red Cross approximately four times a week for a 4-hour shift. She noted that she had been doing this volunteer work for about four or five months. In addition to volunteering, she reported that she attended Bible studies one day a week and was also trying to take classes at a local university where she had about 18 months left to complete a bachelor's degree in organizational and business management. Regarding her psychiatric symptoms, the Veteran indicated that she was becoming more familiar with her tendency to cycle through either mania or depression. She stated that she recognized when she was becoming manic as her thoughts tended to rise, she became confused, and she had distortions of perceptions with some changes in behavior. When depressed, she stated that she could be difficult to motivate and wanted to sleep for long periods of time. She denied feeling depressed or sad. On mental status examination, the Veteran was dressed appropriately and oriented in all spheres. Her mood was mildly depressed and her affect was extremely blunted. She showed very little psycho motor activity and had little spontaneous movement. Her short-term memory was intact, but her concentration was fair. Her thought processes were goal-oriented. She denied having any suicidal or homicidal ideation, and she also denied having auditory and visual hallucinations. In summary, the examiner stated that the Veteran had a history of severe episodes of mania with delusional thinking and significant acting out, with her last hospitalization in 2002. Her current mood was only mildly depressed with significant feelings of low energy which possibly were complicated by her current medications. The examiner felt that the Veteran's condition had been stable for the past two and a half years, and noted that she was continuing to pursue outpatient care and becoming more aware of how to monitor her symptoms. She also stated that the Veteran was not currently employable at a full-time position because of her lingering symptoms of depressions and the severity of the history of her manic episodes. She was determined to be competent for VA purposes. Bipolar disorder, Type I, was diagnosed, and a GAF score of 45 was assigned. By a rating decision in August 2005, the RO continued the 100 percent rating assigned for the Veteran's service-connected bipolar disorder. She was also found to be not competent to handle the disbursement of VA funds; this determination was based on the recommendations from a February 2005 VA field examiner who found that the Veteran was unaware of her finances and did not know how to handle funds independently. In May 2007, the Veteran requested to have a competency evaluation by VA. She also requested to receive her VA benefits directly without the appointment of another fiduciary. The Veteran was afforded a VA examination in November 2007. During this examination, she reported that she had been previously seeking private mental health treatment until 2006. She explained that she stopped private treatment because her doctors were not really checking to see if was taking her medications and that she had stopped counseling for three to four years prior to going for medication only anyway. She noted that she still attended annual mental health check-ups with the VA, and that her last such check had been approximately in the fall of 2006. Since then, she was not taking any psychotropic medications nor was she in any regular mental health counseling. She denied any significant symptoms of depression, including sleep disturbance, appetite disturbance, decreased energy, anhedonia, decreased focus, psychomotor retardation, or morbid preoccupation. She also denied any symptoms of mania, including hypersexuality, impulsive spending, irritability, grandiosity, or other inappropriate behavior. She denied any excessive anxiety, panic attacks, or obsessive compulsive behaviors. She also denied having any overt psychotic symptoms like auditory or visual hallucinations, and homicidal or suicidal ideation. The Veteran reported that she was currently attending school, taking college classes full-time with expectations of graduating in May 2008 with a degree in human resources. She also reported that she had been working full-time at JC Penney since July 2007; she indicated that she was doing well on the job. On mental status examination, the Veteran was appropriately dressed and groomed. She initially appeared somewhat guarded but became friendlier as the interview progressed. Her affect was generally neutral as was her mood, and her speech was articulate. Her thought processes were logical and goal-oriented. Her motor functioning was grossly intact. She exhibited some minor deficits in short-term memory, attention, and concentration, but all other parameters were grossly intact. In summary, the examiner found that the Veteran's symptoms (as described by her) were in remission and intermittent. She was able to maintain activities of daily living including her own personal hygiene. She had not experienced any significant trauma since her last VA examination, and there was no worsening of her condition. In fact, she described improvement. The examiner opined that the Veteran was capable of managing her own financial affairs as evidenced by her cognitive abilities on mental status examination and also given her report of stabilization of manic and depressive disorders. Bipolar disorder, Type I, with history of psychotic symptoms, currently reported to be in remission was diagnosed. A GAF score of 60 was assigned. The November 2007 VA examination served as the basis for the reduction. The Veteran was afforded another VA examination in August 2008 (with the same examiner as in 2007), on which the RO relied in part to confirm its rating decision. During this examination the Veteran continued to report that she was only following with the VA for annual mental health check-ups, and that she was not currently taking any psychotropic medications or receiving mental health counseling. She reported that from a mental health perspective, things were generally going well for her. She continued to deny any significant symptoms of depression as well as symptoms of mania. She also denied having any overt psychotic symptoms. The Veteran reported that she had had to put her college courses on hold after the recent birth of her child (who was 2 months old at the time of the VA examination), but was hoping to graduate in May 2009. She also reported that she had stopped working at JC Penney in January 2008 due to her pregnancy. On mental status examination, the Veteran was appropriately dressed and groomed. She was friendly and cooperative. Her mood was generally neutral with some anxiety displayed. Her speech was articulate and her thought processes logical and goal-oriented. Her motor functioning was grossly intact and only a very mild deficit in her attention and concentration was shown. In summary, the examiner noted that the Veteran continued to describe overall improvement in her mental health status and opined that the Veteran was able to maintain her activities of daily living including her own personal hygiene. The same diagnosis and GAF score were assigned as in the November 2007 VA examination. While findings from the Veteran's November 2007 and August 2008 VA examinations clearly do not support a 100 percent rating under the schedular criteria for bipolar disorder (Code 9423), the central inquiry to be made in a rating reduction case is not whether the Veteran's disability actually meets the schedular criteria, but rather whether the underlying disorder has shown improvement. In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Holol v. Derwinski, 2 Vet. App. 169 (1992). In this regard, the Board notes that at the time of the Veteran's August 2005 VA examination, she was volunteering four times a week and attending classes at a local university. Such findings are not unlike those shown during the November 2007 VA examination when the Veteran was taking college classes and working full-time at JC Penney. Similarly, on mental status examination during the August 2005 VA examination, the Veteran showed very little psycho motor activity, had little spontaneous movement, was goal-oriented in her thought processes, and had an intact short-term memory with fair concentration. She also denied having any suicidal/homicidal ideations or any auditory/visual hallucinations. These findings are also not unlike those shown during the mental status examination portions of the November 2007 and August 2008 VA examinations. The main differences between the August 2005 VA examinations and the November 2007 and August 2008 VA examinations are that by the latter examinations, the Veteran had discontinued mental health counseling (other than annual follow-ups) and was no longer taking medication for her bipolar disorder. Also, during the August 2005 VA examination, the Veteran presented as mildly depressed with an extremely blunted affect whereas by the November 2007 and August 2008 VA examinations, she denied having symptoms of depression and reported that that her mental health status was improved and doing well overall. The Board has considered whether such changes demonstrate sustained material improvement in the Veteran's service-connected bipolar disorder and, on longitudinal review of the record, and with the benefit of the doubt being afforded to the Veteran as is required by the law, it is the opinion of the Board that these changes did not actually reflect an improvement would be maintained under the ordinary conditions of life. See Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). As was noted above, while the evidence available to the RO at the time the reduction was implemented must be considered, post-reduction medical evidence may also be considered in the context of evaluating whether a disability has demonstrated actual improvement. Dofflemyer, Vet App. at 281-82. Accordingly, the Board has given consideration to the Veteran's VA treatment records, the reports of VA examinations conducted subsequent to the August 2008 VA examination, the lay statements/testimony from the Veteran and her spouse, and the July 2011 report from a private psychologist. The Veteran's VA treatment records show that in April 2009, the Veteran presented for individual psychotherapy. During this initial session, she reported that she had last worked at JC Penney for six months until she was laid off, that she was attending online classes at a local university, and that she had been prescribed Ability (a psychiatric medication) until she became pregnant with her first child in 2007 (who was now 9 months old), and was now pregnant again and hoping to avoid medication. A GAF score of 55 was assigned, and it was recommended that she continue with individual psychotherapy. The Veteran returned for individual psychotherapy in May 2009; during this session, it was discussed that because she could not take medication, her bipolar disorder symptoms were increasing. By November 2009, the Veteran's GAF score was 45, and she was complaining of angry attacks with irritability. As she was no longer pregnant by this visit, Abilify was once again prescribed to help stabilize her moods and anxiety attacks. In March 2010, the Veteran reported that she was doing well. She was pregnant again, but had been told she could continue taking Abilify. She found herself to be less irritable and able to handle things, and a GAF score of 65 was assigned. In July 2010 and in September 2010, GAF scores of 50 were assigned; the Veteran was noted to be essentially stable. The Veteran's VA treatment records, as described above, serve to illustrate that although she had stopped taking medication for her bipolar disorder at the time of the November 2007 VA examination, a likely factor in the discontinuation of her medication was that she was pregnant. They also show that without medication, her symptoms increased noticeably and stabilized only when she went back on medication. These fluctuations in the Veteran's mental state are similarly reflected in VA examinations conducted in May 2009 and in August 2010. Specifically, the May 2009 VA examination report shows that the Veteran reported increased symptoms secondary to recent stresses in her life. These included being very depressed, having significant sleep disturbances, crying frequently from feeling overwhelmed, and having frequent anhedonia, decreased focus, pressured racing thoughts, panic attacks at least three times a week if not more, and extensive anxiety. She also reported that although she had been taking college courses and hoping to graduate in May 2009, after having postponed her graduation plans once already, she was no longer certain that she would be able to go back to school at all after having to withdraw from several courses because she had failed. On mental status examination, the Veteran appeared anxious and demonstrated some mild deficit of attention and concentration. A GAF score of 52 was assigned. On August 2010 VA examination, the Veteran reported that she was seeing a VA counselor every 6 weeks or so for therapy and seeing a VA physician once every three months or so for medication. She also reported that she had last worked as an overnight stocker at Target from May to June 2009, and had to leave the job due to increasing stress and feelings of being overwhelmed. Regarding her psychiatric symptoms, the Veteran indicated that she was having increasing problems with sleep disturbances, felt depressed, was isolating herself from family and friends, and had decreased levels of energy. She also described having impaired memory and concentration levels, difficulty focusing on anything, problems with her temper, and panic attacks. On mental status examination, the Veteran's thoughts were goal-oriented, her mood dysphoric, and her affect reserved but appropriate to the context of the interview. Her memory and concentration levels were also excellent. Based on the foregoing, a GAF score of 52 was assigned, and the examiner opined that the Veteran would be employable from a psychiatric standpoint in a limited setting in which she had little to no contact with the public, loose supervision, very predictable expectations for her behavior, and a low pressure environment. From the Veteran's VA treatment records and VA examination reports, it seems clear that her mental state often fluctuates depending on the stresses in her life. This is corroborated by a statement from the Veteran's spouse (dated in June 2011, but received in May 2012) in which he describes the Veteran's mental state as one that cycles between high points and low points. For example, he noted that the period of her employment at JC Penney was one of a high point, but when she lost her energy, she descended into a state of lethargy in which she did not want to do anything. Losing employment and being unable to work also tended to make the Veteran depressed. At the May 2012 Board video conference hearing, the Veteran also explained that her bipolar disorder is comprised of two states, a depressive state and an active state. During her periods of depression, she had very little energy and felt sad, suicidal, and isolated from others. During her active states, she was upbeat and excited with racing thoughts. In June 2011, the Veteran's claims file (as it pertained to her bipolar disorder) was forwarded to a private psychologist for a medical opinion. After reviewing the reports from her various VA examinations, as well as the statements from the Veteran and her husband, the private psychologist opined that the Veteran's bipolar disorder was of the "rapid cycling type." He noted that people with bipolar disorder tend to paint a very favorable picture of themselves when they are in a hypomanic phase, and that it was therefore his opinion that when the Veteran was examined in November 2007 and in August 2008, she was in a hypomanic phase and "not inclined to be forthcoming about her limitations"; therefore, she probably represented herself as doing better than she actually was. In light of the post-reduction medical evidence which suggests that the Veteran's mental state frequently fluctuates depending on the cycles of her bipolar disorder, the Board finds that there was no basis for finding that her symptoms had improved on any sustainable level in November 2007 and/or in August 2008. See Peyton, 1 Vet App. at 286 (VA has the burden of establishing improvement). Accordingly, the reduction from 100 percent to 10 percent for the Veteran's service-connected bipolar disorder was neither supportable nor appropriate under the pertinent guidelines. ORDER Restoration of a 100 percent rating for the Veteran's service-connected bipolar disorder is warranted. The appeal is granted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs