Citation Nr: 1007378 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 07-06 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial disability rating in excess of 50 percent for bipolar disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active military service from April 1983 to July 1983. The appeal comes before the Board of Veterans' Appeals (Board) from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which granted service connection for bipolar disorder, and assigned an initial disability rating of 50 percent. The Veteran testified during a personal hearing before a Decision Review Officer in September 2006. A transcript of that hearing is of record. The issue of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) appears to have been raised by the record, including in a September 2004 Statement in Support of Claim and on a March 2007 VA Form 9. It does not appear that the issue of TDIU has yet been adjudicated by the RO. The issue of initial rating for bipolar disorder, which was claimed prior to the TDIU claim, is not inextricably intertwined with the issue of TDIU because the decision on TDIU will not affect adjudication of the question of initial schedular rating to assign to the service-connected bipolar disorder. To the contrary, the issue of initial rating for bipolar disorder needs to be adjudicated first, as the determination of ratings percentage is a fact question to be decided before TDIU can be adjudicated. Therefore, the issue of TDIU is referred to the RO for appropriate action because the Board does not have jurisdiction over the TDIU claim. FINDINGS OF FACT 1. For the entire period of initial rating appeal, bipolar disorder has been characterized by occupational and social impairment with reduced reliability and productivity due to symptoms such as anxiety, disturbances in motivation, and occasional panic attacks. 2. Bipolar disorder has not for any period of initial rating more nearly approximated occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for bipolar disorder have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2008); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9432 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). In this case, the Veteran filed his service connection claim in August 2002. Thereafter, he was notified of the provisions of the VCAA by the RO in correspondence dated in May 2003. This letter notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claim, identified the Veteran's duties in obtaining information and evidence to substantiate his claim, and provided other pertinent information regarding VCAA. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to this matter was provided in July 2007. The Veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. In addition, because this appeal arises from disagreement with the initial evaluation following the grant of service connection, Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Effective May 30, 2008, 38 CFR 3.159 was revised to clarify that no duty to provide section 5103(a) notice arises "[u]pon receipt of a Notice of Disagreement" or when "as a matter of law, entitlement to the benefit claimed cannot be established." 38 C.F.R. § 3.159 (b)(3) 2008. As the Veteran voiced disagreement with the initially assigned rating for the bipolar disorder in a notice of disagreement, no further duty to inform the Veteran of the requirements of VCAA exists. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the Board finds that VA has conducted reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim during the course of this appeal. His service treatment records and all relevant VA and private treatment records pertaining to his bipolar disorder claim have been obtained and associated with his claims file. He has also been provided with a VA examination in September 2003 to assess the state of his service-connected bipolar disorder. Furthermore, the Veteran has not identified any additional, relevant evidence that has not otherwise been requested or obtained. He has been notified of the evidence and information necessary to substantiate his claim, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claim. Rating Laws and Regulations The severity of a service-connected disability is ascertained, for VA rating purposes, by the application of rating criteria set forth in VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2009) (Schedule). While lost time from work related to a disability may enter into the evaluation, the rating schedule is "considered adequate to compensate for considerable loss of working time from exacerbations proportionate" with the severity of the disability. See 38 C.F.R. § 4.1. To evaluate the severity of a particular disability, it is essential to consider its history. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (2009). Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. §§ 3.102, 4.3 (2009). In addition, where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Board notes that this issue involves the Veteran's dissatisfaction with the initial rating for bipolar disorder assigned following the grant of service connection. The Court has found that there is a distinction between a veteran's disagreement with the initial rating assigned following a grant of service connection, and the claim for an increased rating for a disability in which entitlement to service connection has previously been established. In instances in which a veteran disagrees with the initial rating, the entire evidentiary record, especially from the time of a veteran's claim for service connection to the present, is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. 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. 38 C.F.R. § 4.126(a) (2009). 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 solely on the basis of social impairment. 38 C.F.R. § 4.126(b). In this case, the Veteran was initially assigned a 50 percent disability rating for bipolar disorder under Diagnostic Code 9432, effective from August 13, 2002, the date of receipt of claim for service connection for bipolar disorder. The Veteran entered a notice of disagreement with the 50 percent initial rating assigned. Under Diagnostic Code 9432, using the General Rating Formula for Mental Disorders, a 50 percent disability rating is warranted 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 is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. The Global Assessment of Functioning (GAF) Scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994). The nomenclature employed in the schedule is based upon the DSM- IV, which includes the GAF scale. See 38 C.F.R. § 4.130. The GAF Scale score is based on all of a veteran's psychiatric impairments. A GAF Scale score of 21 to 30 indicates behavior is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation), or inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). A GAF Scale score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant), or a major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF Scale score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF Scale score of 51 to 60 represents moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with coworkers). A 61 to 70 GAF Scale score indicates some mild symptoms (e.g., depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. In this decision, the Board considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has considered the symptoms indicated in the rating criteria as examples or symptoms "like or similar to" the veteran's bipolar symptoms in determining the appropriate schedular rating assignment, and, although noting which criteria have not been met, has not required the presence of a specified quantity of symptoms in the Rating Schedule to warrant the assigned rating for bipolar disorder. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Analysis of Initial Rating for Bipolar Disorder The Veteran was granted service connection for bipolar disorder based on June 1991 service examination which found that he was recommended for psychiatric evaluation and for a recent history of major depression. No service treatment records were available. In a September 2003 VA examination report, the Veteran indicated that he had been hospitalized for psychiatric problems three times over the course of his life, the most recent in 1999. The Veteran reported he is treated for hyperactivity, attention deficit disorder, and depression. He also stated that g sometimes "gets a little manic too." He stated he has been unemployed since November 2001 when he was placed on disability from his job after he had been struck in the right side of the face with a jackhammer. Upon mental status examination, the examiner found he was hyperalert, but oriented to time, place, and person, that he had casual dress with good hygiene, good eye contact, unremarkable gross motor functioning, restless and agitated activity level, anxious and suspicious manner, accelerated and pressured speech, "lousy" mood, labile and angry affect, variably tangential and preservative thought process with overabundance of ideas, no loosening of associations, delusions, delusions, or hallucinations, and somewhat impaired gross cognitive functioning. The Veteran denied homicidal or suicidal ideation, plans, or intentions. It was further found that his social judgment as demonstrated by his awareness of the link between his behavior and likely social consequences for the same appeared to be fair to poor, and insight also appeared to be poor. The examiner diagnosed bipolar disorder, and assigned a GAF score of 35. The examiner further noted that the Veteran appeared to be severely impaired with respect to working and occupying himself meaningfully (e.g. the Veteran cannot work or maintain friendships due to his persecutory feelings.) In a November 2004 VA social work note, the examiner reported continued complaints of anxiety and panic. In VA progress notes dated from December 2004 to June 2006, the Veteran was consistently found alert, oriented, and anxious with no suicidal or homicidal ideation or plans. In a December 2004 VA social work note, he indicated he is not as active as he likes but that he tries to keep busy with models and visiting a friend. May 2005 VA social work notes indicated that the Veteran continued to be active in his son's life and that he presented as depressed. The Veteran complained of increased anxiety in May and June 2005 VA progress notes. In a June 2005 VA progress note, the examiner noted that the Veteran's symptoms were consistent with the kind of negative symptoms one sees in schizophrenia, involving decreased ability to get motivated, decreased interest in things, and decreased social skills. In a July 2005 VA progress note, he was found to have euthymic mood, fairly calm manner, and cognition within normal limits. July 2005 to December 2005 VA progress notes further reported anxious mood with congruent affect, no evidence of perceptual or thought disturbance, and some obsessional thinking. In a January 2006 VA social work note, the Veteran was found to have anxious mood with congruent affect, somewhat tangential speech, no evidence of perceptual or thought disturbances, obsessive thoughts related to the military, intact judgment, and limited insight. A subsequent January 2006 VA social work note reported obsessive thinking without delusions, and good judgment with fair insight. VA progress notes dated from February to June 2006 reported the Veteran was alert and oriented with no suicidal or homicidal ideation, intents, or plans, anxious mood, congruent affect, no evidence of perceptual or thought disturbance, insight and judgment either fair or good, cognition with normal limits, and speech of standard rate and volume. A February 2006 VA social work note reported some improvement in anxiety. In a subsequent February 2006 VA social work note, the Veteran stated that he is involved in woodworking projects with his uncle. In a May 2006 VA social work note, the Veteran indicated that he remained active with hobbies and spending time with friends and family. In a September 2006 letter from J. C., L.C.S.W., she states that he suffers from chronic severe bipolar disorder, and that he is totally and permanently disabled as a result of his bipolar disorder. In a July 2009 letter from J. M., M.D., he states that the Veteran's bipolar disorder is so severe in many ways that he appears to be almost schizoaffective, and that he has worries that border on paranoia. The physician also indicated that he has social isolation and problems related to dealing with authority, related to feeling inferior. Based on the evidence of record, the Board finds that, for the entire initial rating period, the Veteran's service- connected bipolar disorder has been manifested by occupational and social impairment with reduced reliability and productivity, which more nearly approximates a 50 percent disability rating under Diagnostic Code 9432. 38 C.F.R. § 4.130. The evidence reflects that for the entire initial rating period the bipolar disorder symptoms have caused increased anxiety and disturbances in motivation and mood, as well as difficulty in maintaining effective work and social relationships. The Board also finds that the bipolar disorder has not for any period of initial rating more nearly approximated occupational and social impairment with deficiencies in most areas, as required for a higher disability rating of 70 percent under Diagnostic Code 9432. 38 C.F.R. § 4.130. Although the Veteran's treating social worker indicated that he was totally disabled, this opinion seems contradicted by the Veteran's actual symptoms that he has reported elsewhere and that have been clinically observed during treatment and examination. The Veteran has an active relationship with his son, participates in hobbies with his family and friends, and his mental status examinations continually found he was alert and oriented with no suicidal or homicidal ideation, intents, or plans, no evidence of perceptual or thought disturbance, insight and judgment was either fair or good, cognition was within normal limits, and speech was of standard rate and volume. There is no probative evidence of bipolar disorder symptoms such as 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; inability to establish and maintain effective relationships warranting an assignment of 70 percent rating under Diagnostic Code 9432. 38 C.F.R. § 4.130. The lowest GAF score of record, 35, was listed in a September 2003 VA compensation examination report. The degree of overall psychiatric impairment reflected by the GAF score and interpretations of the score is evidence that the Board has weighed and considered in determining the Veteran's overall disability picture. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue. The GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Given the actual psychiatric symptoms shown in this case throughout the claim, and reflected in the Veteran's reported histories, and clinical findings noted during treatment and at VA examination, the Board finds that level of overall psychiatric impairment shown to be more consistent with a 50 percent rating. The aforementioned discussion makes clear that the Veteran's bipolar disorder symptomatology has resulted in a disability picture that more nearly approximates the level of occupational and social impairment contemplated for a 50 percent rating under the applicable rating criteria. Therefore, the Board finds an initial rating in excess of 50 percent is not warranted for any period. Extraschedular Consideration Initially, the Board notes that the referred TDIU claim will address the remaining extraschedular contentions pertaining to unemployability. In Thun v. Shinseki, F.3d 1366 (Fed. Cir. 2009), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether a veteran's disability picture requires the assignment of an extraschedular rating. The Board finds in this case that the disability is not so unusual or exceptional as to render impractical the application of the regular schedular standards at any time during the pendency of the initial evaluation period. 38 C.F.R. § 3.321(b)(1) (2009). The schedular rating criteria for rating mental disorders contemplates a wide range of psychiatric symptomatology, including any psychiatric symptoms that are like or similar to the schedular symptoms, so well contemplates all of the Veteran's symptoms, especially including panic attacks, anxiety, poor judgment, disturbances in motivation, and difficulty maintaining effective work and social relationships. The Veteran's bipolar disorder has not necessitated frequent periods of hospitalization at any time, and there is no objective evidence that it resulted in marked interference with his employment. Although the Veteran discontinued working in 2001 due to disability, the award was based on physical disabilities due to a workplace injury and not his service-connected psychiatric disability. Moreover, the separate extraschedular TDIU claim that the Veteran has raised and is being referred to the RO will address additional questions of total unemployability due to service- connected bipolar disorder. A TDIU is entirely an extraschedular rating. For these reasons, the Board finds that the facts of this case do not present such an extraordinary disability picture to render the psychiatric disorders rating criteria inadequate to rate all of the Veteran's psychiatric impairment, including the occupational impairment of difficulty in establishing an maintaining effective work relationships. For these reasons, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER An initial disability rating in excess of 50 percent for bipolar disorder is denied. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs