Citation Nr: 1311010 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 10-45 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a disability rating in excess of 50 percent for bipolar disorder. REPRESENTATION Appellant represented by: Sandra E. Booth, Attorney ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran had active service from August 2000 to October 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that increased the Veteran's rating from 10 percent to 30 percent. A subsequent statement of the case increased his rating to 50 percent, effective the date of his claim for an increased rating. A request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009) The holding of Rice is inapplicable here, as the evidence of record shows that the Veteran continues to work for an IT company. Though in a May 2012 letter, the Veteran contended that his VA psychiatrist stated he should be receiving a 100 percent rating or a TDIU, the evidence furnished with this letter did not support this conclusion. Further, the fact that the Veteran is still working would preclude the assignment of a TDIU. FINDING OF FACT The Veteran's bipolar disorder results in occupational and social impairment, with deficiencies in most areas. CONCLUSION OF LAW The criteria for a 70 percent rating for bipolar disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.125 Diagnostic Code (DC) 9432 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A September 2008 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b)(1). Though this letter did not inform the Veteran of the need to show the impact of disabilities on daily life and occupational functioning, it did provide him with information regarding his service-connected disability and the symptoms required for an increased rating. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a July 2011 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in October 2008 and March 2011. In his October 2009 Notice of Disagreement, the Veteran's representative argued that the October 2008 VA examination was inadequate because the examiner did not review the claims file and because the examiner did not discuss other evidence relevant to the disability level. Despite these contentions, the examination is adequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). While the examiner did not explicitly state that he reviewed the Veteran's claims file, he did take a history of the Veteran's condition, and he mentioned the Veteran's previous VA examination. Further, the Veteran's representative did not state what evidence relevant to rating the Veteran was missing. The examination does, in fact, contain sufficient information to rate the Veteran under the applicable Diagnostic Code. Neither the Veteran nor his representative made any statements regarding the March 2011 examination, and the Board finds it to be adequate. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. Increased Rating Claim 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 the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's bipolar disorder has been evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9432. Under the General Rating Formula, a 50 percent rating is warranted when there is 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. Id. A 70 percent disability rating 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. The symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In addition, VA regulations require that when the symptoms and/or degree of impairment due to a veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. Mittleider v. West, 11 Vet. App. 181 (1998). In evaluating psychiatric disorders, VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. The diagnosis of a mental disorder should conform to DSM-IV. See 38 C.F.R. § 4,125(a). Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF score of 51 to 60 indicates 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 peers or co- workers). A GAF 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). Since the issue is entitlement to an increased rating, the present level of his disability is the Board's primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, a determination must be made as to whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). An April 2008 record from the Beavercreek Police Department reflects that the Veteran's wife reported that she and the Veteran had been in an argument. She stated that the Veteran planned to hit himself in the face, then tell police that she had hit him. When interviewed, the Veteran stated that the couple argued often. The Veteran underwent a VA examination in October 2008. He described suffering from depression, and he related a previous violent incident with his wife. He stated that he suffers from anxiety, confusion, and mood swings. He denied suffering from homicidal or suicidal ideation, but reported occasional audio hallucinations. He stated that he had been having difficulty at work on account of his drowsiness. Mental status examination revealed that the Veteran was neatly groomed and dressed with good hygiene. He showed moderate agitation, was fidgety, and frequently moved his posture. His speech was fast in rate at times, but otherwise unremarkable. His affect was constricted but appropriate to his thought content. His thought process was linear and goal directed. The Veteran denied suffering suicidal or homicidal ideation, but reported suffering from audio hallucinations. The Veteran reported paranoid behavior, but no other delusions. His short term memory was fair. His judgment was fair. The examiner diagnosed the Veteran as suffering from bipolar disorder, mixed, moderate with psychotic features. He was assigned a GAF score of 50, and noted to have moderate impairment in several areas of functioning, including personal, family, social, and private. The examiner acknowledged that the Veteran is employed and married, but stated that there are problems with both areas. He noted that when the Veteran is depressed, his work output is markedly decreased. His relationship with his wife was also described as strained on account of his violent behavior. The examiner concluded that the Veteran's bipolar symptoms have markedly increased and were adversely affecting his personal, family, employment, and social functioning. In an October 2008 letter, the Veteran's wife stated that he frequently falls asleep at work. She stated that the Veteran is angry over his lack of promotion. A January 2009 VA nursing note reflects that the Veteran's wife had called, describing the Veteran as very delusional and verbally threatening; she said that he threatened suicide if sent to jail. In a February 2009 letter, K.P.D., Ph.D., wrote that he had treated the Veteran since April 2007. He stated that the Veteran has difficulty remaining on task and poor concentration. He said that the Veteran talks to himself, suffers from hallucinations, hits himself, and becomes verbally hostile to his wife. Dr. K.P.D. wrote that the Veteran neglects his personal hygiene, and that he has a low tolerance threshold. He concluded by stating that, though the Veteran has made improvements, "his mental functioning remains severely compromised and a major interference in his personal and work roles." In February 2011, the Veteran's wife again called the VA. She said that the Veteran was "acting out" and yelling at his children. She also said that he was being unreasonable, had anger issues, and suffered from mood swings. The Veteran underwent a second VA examination in March 2011. The Veteran described suffering from alternating depression and manias. He said that he suffers from anger, describing incidents where he had threatened his family, smashed a television, broken his step-son's belongings, and punched himself in the face. He stated that he hears voices and felt that he was steadily decreasing in functioning. The mental status examination revealed that the Veteran was mildly restless with normal grooming and hygiene. He described his mood as angry, yet the examiner stated that his behavior and demeanor were not hostile. His speech was clear, his affect restricted and stable. His thoughts were organized, but his thought content placed an emphasis on his decline and poor prognosis. The Veteran denied any suicidal or homicidal intent, but he did endorse intermittent hallucinations and paranoid ideas. The examiner diagnosed the Veteran as suffering from bipolar disorder with psychotic features, and assigned a GAF score of 50. He wrote that the Veteran's claims of decline were not reflected in the clinical record, and his accuracy as a historian was brought into question by psychological testing. Nevertheless, the examiner reported that the Veteran's history of making threats, destroying property, self-injuring, and making false accusations all have major negative effects on his personal relationships, and the Veteran's paranoid ideas and hallucinations would have negative impacts on his work. This evidence shows that the Veteran's symptoms and the effect that they have on his occupational and social functioning more closely approximate the level described by the 70 percent rating. Most important are the Veteran's periods of impaired impulse control, including the April 2008 incident, the January 2009 incident, and the Veteran's reports of his anger in his March 2011 VA examination. Though the Veteran has not been found consistently to suffer from suicidal ideation, he did threaten suicide in January 2009 if he were taken to jail again. Also, Dr. K.P.D. reported that the Veteran neglects his personal hygiene. These symptoms have resulted in the occupational and social impairment with deficiencies in most areas required for a 70 percent rating. The Veteran's work has certainly been affected; the Veteran submitted letters from coworkers stating that he sleeps at work, and the Veteran submitted a feedback report from his job showing that his supervisor rated him poorly. The Veteran's family relations have been affected in the ways described above and his mood and judgment have also been affected negatively. The Veteran's symptoms do not rise to or approximate the 100 percent level. Of primary importance here is the fact that, despite the problems created by his condition, the Veteran remains both employed and married, precluding a finding of total occupational and social impairment. Further, his symptoms, though serious, do not approximate those described for a 100 percent rating. The Veteran's disability is not so severe as to warrant an extraschedular rating. An extraschedular rating may be applied in exceptional cases involving marked interference with employment or frequent hospitalizations. 38 C.F.R. § 3.321 (2012). The applicable rating criteria here are adequate to evaluate the Veteran's bipolar disorder. The Veteran's reported and observed manifestations are those provided for in the rating criteria. Though the Veteran has reported missing work, he remains employed, and there is no evidence of marked interference with employment or frequent hospitalizations. The first threshold of the Thun framework is not met, ending the Board's inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER Entitlement to a 70 percent disability rating for bipolar disorder is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs