Citation Nr: 1322803	
Decision Date: 07/17/13    Archive Date: 07/24/13

DOCKET NO.  09-03 610	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to a rating in excess of 70 percent for bipolar disorder.

2.  Entitlement to an effective date prior to July 30, 2004, for the assignment of a 100 percent disability rating for bipolar disorder.


ATTORNEY FOR THE BOARD

J. Hager, Counsel


INTRODUCTION

The Veteran served on active duty from October 1977 to October 1980 and from May 1981 to December 1986.

These matters initially came before the Board of Veterans' Appeals (Board) from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  In that decision, the RO granted an increased, 30 percent rating for mood instability and major depression complicated by migraines, effective July 30, 2004.  After receiving new and material evidence within the one year appeal period, see 38 C.F.R. § 3.156(b), the RO in October 2007 granted an increased, 70 percent rating for the disability recharacterized as bipolar disorder, also effective July 30, 2004.  The Veteran timely appealed both the assigned rating and its effective date.  Jurisdiction over this case was subsequently transferred to the VARO in St. Petersburg, Florida, and that office forwarded the appeal to the Board.

In May 2011, the Board remanded the claims for additional development.  For the reasons stated below, the RO complied with the Board's remand instructions.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  The Board also remanded a claim of entitlement to service connection for chronic sinusitis and applications to reopen previously denied claims for entitlement to service connection for a left foot disorder and a left knee disorder.  The Veteran indicated in September 2012 that he wanted to withdraw his appeal from the denial of these claims.  As an appeal may be withdrawn on the record by the Veteran's authorized representative at a hearing at any time before the Board promulgates a decision, these claims are deemed withdrawn.  38 C.F.R. §§ 20.202, 20.204 (2012).


FINDINGS OF FACT

1.  The evidence is at least evenly balanced as to whether symptoms of the Veteran's bipolar disorder have most nearly approximated total occupational and social impairment since the filing of his July 30, 2004 claim for an increased rating for this disability.

2.  The Veteran filed a claim for an increased rating for his psychiatric disorder, then characterized as major depressive disorder, on July 30, 2004.

3.  The Veteran's most recent prior claim for an increased rating for his psychiatric disorder was denied in February 1994.  Although notified of this decision and his appellate rights, the Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period.

4.  There is no document dated between February 1994 and July 30, 2004 that could be construed as an informal claim for an increased rating for the Veteran's psychiatric disorder.

5.  It was not factually ascertainable that the Veteran's psychiatric disorder increased beyond that recognized by the assigned 30 percent rating during the one-year period before the filing of the July 30, 2004 claim.


CONCLUSIONS OF LAW

1.  With reasonable doubt resolved in favor of the Veteran, the criteria for a rating of 100 percent for bipolar disorder have been met from the date of his July 30, 2004 claim.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9432 (2012).

2.  An effective date earlier than July 30, 2004, for a 100 percent rating for bipolar disorder, is not warranted.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012).  As to the claim for an increased rating for bipolar disorder, the Board is granting this claim in full by granting a 100 percent rating.  Further discussion of the VCAA with regard to the increased rating claim is therefore unnecessary.  Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001).

In any event, the requirements of 38 U.S.C.A. §§ 5103 and 5103A were met with regard to the increased rating claim.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in August 2004 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined.  The claim was most recently readjudicated in September 2012. 

With regard to the claim for an earlier effective date, this claim arises from the Veteran's disagreement with the effective date assigned in connection with the grant of an increased rating for bipolar disorder.  The courts have held that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as disability rating or effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002).  Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  Consequently, further discussion of the VCAA's notification requirements with regard to this claim is also unnecessary.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records.  

The RO/AMC also substantially complied with the Board's May 2011 remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required).  In its May 2011 remand, the Board instructed that the RO contact the Veteran regarding additional treatment records, obtain specific outstanding VA Treatment records, locate an August 2008 VA examination report, and obtain any outstanding Social Security Administration (SSA) records, i.e., other than those already submitted by the Veteran.  The RO sent the letter as directed, obtained the outstanding treatment records, and made a formal finding as to the unavailability of the SSA records, which SSA indicated had been destroyed.  The RO also informed the Veteran of the unavailability of the SSA records.  The RO thus complied with the Board's remand instructions and its duty to assist.  38 C.F.R. § 3.159(c)(2) (requiring VA to continue to request Federal records unless it concludes that records sought do not exist or that further efforts to obtain them would be futile); 38 C.F.R. § 3.159(e)(1) (explaining duty to notify claimant of inability to obtain records). 

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The claims for entitlement to an increased rating for bipolar disorder and for an earlier effective date for an increased rating for this disability are thus ready to be considered on the merits.

Analysis

Increased Rating

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 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 evaluation will be assigned.  38 C.F.R. § 4.7.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Here, as explained below, a uniform 100 percent is warranted. 

The Veteran's bipolar disorder is rated under 38 C.F.R. § 4.130, DC 9432. All psychiatric disabilities are evaluated under a general rating formula for mental disorders.  Under the general rating formula, a 70 percent rating is warranted where 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); and inability to establish and maintain effective relationships.

The maximum schedular 100 percent rating for a psychiatric disability is warranted for 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. 

One factor in evaluating psychiatric disorders is the Global Assessment of Functioning (GAF) scale.  The scale reflects psychological, social, and occupational functioning of a hypothetical continuum of mental health illness.  See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994).  A GAF score of 31-40 indicates 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 score of 41-50 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 score of 51-60 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 peer or coworkers).

When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118  (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004).  Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118.

For the following reasons, the evidence in this case is at least evenly balanced as to whether the Veteran's bipolar disorder symptoms have more nearly approximated the total occupational and social impairment indicated in the criteria for a 100 percent rating. rating.

On the June 2005 VA examination, it was noted that the Veteran had symptoms of isolating, difficulty trusting others, panic, avoidance, and paranoia.  He was having difficulty functioning in the VA system.  On examination, it was indicated with regard to impulse control that the Veteran felt as if he was going to explode at times.  The examiner noted significant work dysfunction to the extent that the Veteran was no longer able to work and function and that his social ability had declined to the extent that there was inability to work with caregivers, even in the VA system.  The overall GAF score was 40.  Similarly, in November 2005, Dr. Tripi, a psychologist, examined the Veteran and noted symptoms of irritability and agitation, sleep and appetite disturbance, fatigue, lack of energy, loss of interest in most things, mood swings, and hearing noises and voices as well as seeing things no one else is able to see.  After reviewing the history of his psychiatric symptoms, Dr. Tripi concluded that his "emotional difficulties alone would be sufficient in my opinion to preclude employment."  The GAF score was 41.  On the July 2008 VA examination, social and employment dysfunction were noted with a GAF score of 42.

The above examinations and opinions reflect that the Veteran had symptoms listed in the criteria for a 100 percent rating such as persistent delusions or hallucinations as well as symptoms in the criteria for lower ratings, such as impaired impulse control (70 percent), mood disturbances (50 percent), and chronic sleep impairment (30 percent).  He also had symptoms that were not specifically listed in any of the criteria.  Given the private and VA assessment of the overall impairment caused by these symptoms, reflecting significant to near total occupational and social impairment, with GAF scores consistent with these assessments, the Board finds that the evidence is at least evenly balanced as to whether the impairment caused by the symptoms of the Veteran's bipolar disorder most nearly approximates total occupational and social impairment.  As the reasonable doubt created by this approximate balance of evidence must be resolved in favor of the Veteran, a 100 percent rating for bipolar disorder is warranted.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).

Moreover, while there has been some fluctuation in the severity of the Veteran's psychiatric symptoms, the Board finds that the symptoms have been of significant enough severity since the filing of the July 30, 2004 claim to warrant a 100 percent rating from that date.  As to whether a rating of 100 percent is warranted prior to the date of claim, this issue will be addressed below in the Board's discussion of the issue of entitlement to an earlier effective date for an increased rating for bipolar disorder.

Earlier Effective Date

Under 38 U.S.C.A. § 5110(a), the effective date of an increase in a veteran's disability compensation 'shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C.A. § 5110(b)(2) provides an exception to this general rule: "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date."  Thus, "the plain language of [section] 5110(b)(2)  . . . only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim."

Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case:

(1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1));

(2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or

(3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010).  See also Harper v. Brown, 10 Vet. App. 125, 126 (1997).

In this case, the Veteran's claim for an increased rating was filed on July 30, 2004.  The Board must, however, also consider the possibility that a prior claim was filed and not acted upon, or that a decision on a prior claim did not become final.
 
As to what constitutes a claim, a claim is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. §§ 3.1(p); 3.155 (2012).  Any communication or action from a claimant indicating an intent to apply for one or more benefits under the laws administered by VA and which identifies the benefit sought, may be considered an informal claim.  38 C.F.R. § 3.155(a).  Further, under 38 C.F.R. § 3.157 (b)(1) (2012), a report of examination or hospitalization may constitute an informal claim.  However, "[t]he mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit."  Criswell v. Nicholson, 20 Vet. App.501, 504 (2006).  Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits).

As to finality, an RO decision becomes final unless a notice of disagreement is filed or new and material evidence is received within the one year appeal period.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156(b), 20.1103 (2012).  If VA fails to act on an appeal by issuing a statement of the case or on new and material evidence by readjudicating the claim, the claim remains pending.  See 38 C.F.R. § 3.160(c) ("pending claim" is "[a]n application, formal or informal, which has not been finally adjudicated"); Ingram v. Nicholson, 21 Vet. App. 232, 240 (2007) ("a claim remains pending - even for years - if the Secretary fails to act on a claim before him); Myers v. Principi, 16 Vet. App. 228 (2002) (where a veteran had filed a timely appeal from a prior RO decision and VA failed to recognize the appeal, neither the prior RO decision nor its subsequent denial of reopening of the claim became final).  

In this case, the Veteran's first claim for entitlement to service connection for a psychiatric disorder was his claim for service connection for nervous condition received in August 1987.  In December 1987, the RO granted entitlement to service connection for adjustment disorder and assigned a noncompensable rating.  Although notified of this decision and his appellate rights in a letter later that month, the Veteran neither appealed nor submitted new and material evidence within the one year appeal period.  The decision assigning a noncompensable rating therefore became final.  The Veteran filed a claim for an increased rating for his psychiatric disorder in November 1989.  The RO denied this claim (and also determined that severance was not warranted) in September 1991.  Although notified of this decision and his procedural and appellate rights later that month, the Veteran neither appealed nor filed new and material evidence within the one year appeal period.  The September 1991 denial therefore became final.  The Veteran's next claim for an increased rating for his psychiatric disorder was filed in December 1991, and the RO denied this claim in February 1994.  Although notified of the denial and his appellate rights at the same time, the Veteran neither appealed nor submitted new and material evidence within the one year appeal period.  The February 1994 decision therefore became final.

Significantly, there is no document dated between the February 1994 denial and the July 30, 2004 claim for increase that indicates an intent on the part of the Veteran to seek an increased rating for his psychiatric disorder.  38 C.F.R. §§ 3.1(p), 3.155(a).  VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).  Rather, there are multiple statements from the Veteran relating to other claims.  

Moreover, while there are psychiatric treatment records including a VA hospital admission from January 1 to January 4, 1999, there is no indication in any of these records of an intent to apply for increased compensation benefits with regard to any psychiatric disorder.  The Board therefore finds that there was no pending claim prior to the July 30, 1994 claim for an increased rating for the Veteran's psychiatric disorder.

The only remaining question is whether it was factually ascertainable that there was an increase in disability within a year prior to the July 30, 2004 claim, such that a rating higher than the 30 percent rating currently assigned for that time period is warranted.  For the following reasons, the Board finds that there was not.

Under the general rating formula, a 30 percent rating requires a showing of 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, and mild memory loss (such as forgetting names, directions, and recent events).  A 50 percent 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; difficulty in establishing effective work and social relationships.

The primary evidence of the severity of the Veteran's psychiatric disorder during this time period is the April 2004 VA examination.  At that time it was noted that the Veteran had some friends but was frequently irritable which interfered with his friendships.  His mood was depressed and he complained of occasional anxiety attacks, periodic voices, and frequent hypervigilance.  He was alert and oriented, was not suicidal or homicidal, overall impulse control was fair, and hygiene was good.  After examining the Veteran and reviewing the claims file, the examiner concluded that there appeared to be some evidence of mood instability complicated by migraines, but that it appeared that the Veteran's level of function dysfunction was due to his metabolic syndrome, i.e., his obesity, dyslipidemia, hypertension, back pain, and migraines.  The GAF score was 56.

Neither the symptoms exhibit by the Veteran nor his overall impairment, as shown in the April 2004 VA examination report and the treatment record during this time period, more nearly approximated the occupational and social impairment with reduced reliability and productivity in the criteria for a 50 percent rating, as opposed to the occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks in the criteria for a 30 percent rating.  The only symptom of the Veteran's bipolar disorder at this time listed in the criteria for a 50 percent rating was disturbance of mood, but there were also symptoms of anxiety and depressed mood listed in the criteria for a 30 percent rating, and the examiner's conclusion that most of the Veteran's impairment was due to his physical disabilities, along with a GAF score of 56 consistent with moderate symptoms, warrants the conclusion that it was not factually ascertainable that the Veteran's bipolar disorder was more severe than that indicated by the 30 percent rating in effect at that time.

As there is no document dated between February 1994 and July 30, 2004, that could be construed as an informal claim for an increased rating for the Veteran's psychiatric disorder and it was not factually ascertainable that the Veteran's psychiatric disorder increased beyond that recognized by the assigned 30 percent rating during the one-year period before the filing of the July 30, 2004 claim, an effective date earlier than July 30, 2004 for the 100 percent rating the Board has granted for bipolar disorder is not warranted.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan, 573 F.3d at 1287.


ORDER

Entitlement to a 100 percent rating for bipolar disorder, effective from July 30, 2004 is granted, subject to controlling regulations governing the payment of monetary awards.

Entitlement to an effective date prior to July 30, 2004, for the assignment of a 100 percent disability rating for bipolar disorder, is denied.





____________________________________________
PAUL S. RUBIN
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs