Citation Nr: 0306350 Decision Date: 04/02/03 Archive Date: 04/10/03 DOCKET NO. 00-25 319 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for a bipolar disorder. 2. Entitlement to a total rating based on individual unemployability by reason of service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The veteran had active service from September 1981 to October 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2000 rating decision of the VARO in Cleveland, Ohio, which confirmed and continued a 50 percent disability rating for the veteran's bipolar disorder, his sole service-connected disability, and denied entitlement to a total rating based on individual unemployability by reason of the veteran's service-connected disorder. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the claim has been developed, and the veteran has been notified of the evidence necessary to substantiate his claim. 2. The veteran's bipolar disorder is currently productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: multiple manic episodes, a few depressive episodes, irritability, and other symptoms indicative of severe problems in the areas of social and occupational functioning. 3. The veteran's service-connected bipolar disorder effectively precludes substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 70 percent disability evaluation, but not more, for a bipolar disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West Supp. 2002); 38 C.F.R. §§ 3.102, 4.1- 4.10, 4.130, Diagnostic Code 9432 (2002). 2. The criteria for a total rating for compensation purposes based on individual unemployability have been met. 38 U.S.C.A. §§ 1155, 5107 (West Supp. 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Although the Veterans Claims Assistance Act of 2000 (VCAA), Pub. Law No. 106-475, 114 Stat. 2096, became effective during the pendency of this appeal, the Board finds it unnecessary to address its applicability to this appeal in view of the disposition reached herein. The Board notes that in a January 2003 communication the veteran's local representative indicated there was nothing further to add to the record. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's bipolar disorder is rated under Diagnostic Code 9432. Under that code, a 50 percent disability evaluation is warranted when there is disability manifested by 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. The next higher rating of 70 percent is warranted when there is 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); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted when there is 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. 38 C.F.R. § 4.130, Diagnostic Code 9432. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the 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. Under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th Ed. (DSM-IV), a Global Assessment of Functioning (GAF) Score of 51 to 60 represents moderate symptoms, with moderate difficulty in social and occupational functioning. A GAF score of 41 to 50 signifies serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment of social, occupational, or school functioning (e.g., no friends, unable to get a job). DSM-IV; 38 C.F.R. § 4.130. Generally, total disability will be considered to exist when there is present any impairment of mind and body that is sufficient to render it impossible for the veteran to follow a substantially gainful occupation. See 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age, or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Total disability ratings are authorized for a disability or a combination of disabilities for which the VA's Rating Schedule prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. See 38 C.F.R. § 3.340. When the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, after a careful review of the record, the Board finds that the impairment attributable to the veteran's bipolar disorder is most accurately reflected by the criteria for a 70 percent disability rating under Code 9432. In reaching this determination, the Board has considered the medical evidence of record pertaining to the veteran's psychiatric status. That record discloses that service connection for a bipolar disorder was granted by rating decision dated in February 1996. A 30 percent disability rating was assigned, effective December 28, 1995. Following the assignment of a temporary total disability rating based on hospitalization for psychiatric purposes, effective June 29, 1998, the prehospital rating of 30 percent was increased to 50 percent, effective September 1, 1998. The medical evidence of record includes the report of a psychiatric examination accorded the veteran by VA in May 1999. At that time the veteran stated that before service he had had multiple odd jobs. He related that following discharge from the Air Force, he worked mostly in restaurants and as a security guard. Notation was made that he stopped working in October 1998 because of low back pain. He indicated that he currently was not working. Mental status examination was essentially unremarkable, except for notation of anxiety and depression. The Axis I diagnosis was a bipolar disorder, depressed type. He was given a GAF score of 53. Associated with the claims file are records pertaining to treatment and evaluation of the veteran at the Miami County Mental Health Center. It was noted the veteran first received case management services at that facility in December 1998. Counseling was begun in April 1999 and had continued since that time. The veteran was being seen regularly in both individual and case management services. The veteran was hospitalized by VA from November 2000 to February 2001. He quit his job as a security guard because his hours were being "jostled." He stated he wanted to use a computer at work, but his employer would not allow him. The veteran was currently homeless and stated he would be searching for new employment housing. His children lived in the Dayton, Ohio, area, and he wanted to be close to them. The veteran was encouraged to take his medications as prescribed. He was also encouraged to find part-time employment to supplement his income. He was given a GAF score of 55 at the time of discharge. The Axis I diagnosis was a bipolar disorder. There was no Axis II diagnosis. Of record is a March 2001 statement from a former girl friend of the veteran in which she reported that the veteran went from manicky periods to depressed periods. She stated the veteran could function in terms of simple instructions, but had no understanding of money and would run up huge debts on his credit card. He did not shop and he relied on her to get food for him. She described his conversation as very disjointed. She stated that he made comments that were often offensive and completely out of context. It was noted he had had many routine jobs in the past three years and would get fired every few days. She added that he could not cope with directions. She stated that he was "in your face" with all authority figures. Inappropriate behavior was also described. She stated that she left the veteran earlier in March 2001 after three years of their having been together. She was aware of the veteran's past history, but stated that his extremes of behavior and aggression became too much for her. She believed the veteran was hallucinating and receiving messages from God or out of space. She stated that he was convinced he did not need his medications and so he was not following his treatment plan. She claimed that even when he was taking his medications he was extreme in religiosity, preoccupation, and focus. Notation was made that despite the ups and downs, the veteran was able to maintain his personal grooming and hygiene. He was also able to do his projects and still find time to overeat. She added that even after she left him, the veteran visited her place and demanded food. She described the veteran as aggressive, demanding, and working to avoid authority. Also of record are a number of medical reports associated with a Social Security disability determination in which the veteran was found to be disabled because of "affective disorders" since September 1996. The various records for consideration by the Social Security Administration included statements from Thomas S. Paulucci, Ph.D. In a March 2001 communication, it was stated that the veteran's inability to relate and/or sustain/tolerate the stress of competitive work was "seriously impaired." The psychologist indicated the veteran's symptoms "directly interfere with these abilities." Also of record is an August 2002 communication from a physician at the VA Medical Center in Dayton, Ohio. He stated the veteran's symptoms included multiple manic episodes and a few depressive episodes. It was noted that during the veteran's manic episodes, he would become grandiose, irritable, and aggressive. Also, he would become religiously preoccupied. These symptoms were initially controlled with Lithium, but as the illness became more severe, Depakote was added to the medication regimen in early 1995. The physician noted that the normal course of a bipolar disorder was that the frequency and duration of the manic/depressive episodes would increase. He noted that any stressful life event or noncompliance with medication could potentially trigger acute symptoms. Analysis In view of the foregoing, and particularly with resolution of all reasonable doubt in the veteran's behalf, the Board finds that entitlement to a 70 percent disability rating for his bipolar disorder has been shown. While the veteran was given GAF scores in the 50's following examination by VA in 1999 and following discharge for hospitalization by VA in early 2001, a subsequent communication from a former girl friend referred to significant psychiatric symptomatology, including manic and depressed periods, disjointed conversation, reports of hallucinations, and inappropriate behavior. She also referred to extremes of behavior and periods of aggression. Her remarks were supported by a psychologist who stated in a March 2001 communication that the veteran's ability to relate and/or sustain/tolerate the stress of competitive work was seriously impaired and opined that his symptoms directly interfered with his abilities. A VA physician in August 2002 also seemed to indicate the presence of symptoms indicative of more impairment than reflected by a GAF score in the 50's or a 50 percent rating. That physician referred to multiple manic episodes and a few depressive episodes and referred to occasional problems resulting from noncompliance with medication. Accordingly, the Board finds that with resolution of all reasonable doubt in the veteran's favor, entitlement to a 70 percent rating for the bipolar disorder is in order. The Board notes, however, that the bipolar disorder does not warrant a 100 percent schedular rating. The veteran has not been shown to be totally impaired. For instance, he has not been reported to be disoriented to time and place, and he has not been shown to have memory loss for names of close relatives, own occupation, or own name, symptoms indicative of a 100 percent schedular rating. As such, the preponderance of the evidence is against a finding that the bipolar disorder warrants a total schedular evaluation. The record reflects that the veteran has been awarded Social Security disability benefits based on impairment attributable to his psychiatric symptomatology. A psychologist stated in March 2001 that the symptoms of the veteran's bipolar disorder "seriously impaired" his ability to sustain and/or tolerate the stress of competitive work. The VA physician in August 2002 referred to multiple manic episodes and a few depressive episodes and noted that during the normal course of most bipolar disorders, the frequency and duration of manic/depressive episodes increased. Accordingly, it is the Board's judgment that the veteran's bipolar disorder is so incapacitating that it prevents him from obtaining and maintaining substantially gainful employment. The veteran has had a very spotty work record at best. The Board also notes that with the schedular rating for the sole service- connected disability now exceeding 60 percent, a total rating for compensation purposes may be assigned under the provisions of 38 C.F.R. § 4.16(a). ORDER A disability rating of 70 percent, but not more, for a bipolar disorder is granted, subject to the laws and regulations pertaining to the payment of monetary awards. A total rating based on individual unemployability by reason of service-connected disability is granted, subject to the laws and regulations pertaining to the payment of monetary awards. ____________________________________________ WARREN W. RICE, JR. Veterans Law Judge, 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.