Citation Nr: 1324685 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 10-37 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating (or evaluation) for bipolar disorder in excess of 50 percent prior to January 28, 2013 and in excess of 70 percent thereafter. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1970 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Roanoke, Virginia, because the Veteran was formerly a VA employee. The appeal is certified by the RO in Winston-Salem, North Carolina. This appeal was previously presented to the Board in January 2013, at which time it was remanded for additional development. The agency of original jurisdiction (AOJ) was ordered to obtain additional VA treatment records and afford the Veteran a VA examination. Such an examination was afforded the Veteran in January 2013, and additional VA treatment records were obtained and associated with his claims file. Thus, the required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the Virtual VA paperless claims processing system (Virtual VA) reflects that it contains recent VA records and other documents not found within the physical claims folder. These documents have been noted and reviewed by the Board. During the pendency of this appeal, the Veteran was awarded an increased rating to 70 percent from January 3, 2013 for the service-connected bipolar disorder. Nevertheless, the United States Court of Appeals for Veterans Claims (Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the issue of entitlement to an increased disability rating remains in appellate status. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Appeals Management Center (AMC) in Washington, D.C. FINDINGS OF FACT 1. For the period before January 28, 2013, the service-connected bipolar disorder was characterized by occupational and social impairment with reduced reliability and productivity due to such symptoms as social isolation, a depressed mood, and decreased focus and concentration. 2. For the entirety of the appeals period, the service-connected bipolar disorder is characterized by occupational and social impairment, with deficiencies in most areas, due to such symptoms as social isolation, memory loss, and mental confusion. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for a schedular evaluation of 70 percent for bipolar disorder for the period before January 28, 2013 have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.157, 3.159, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9432 (2012). 2. The criteria for a schedular evaluation in excess of 70 percent for bipolar disorder have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.157, 3.159, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9432 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board finds that in this case VA has satisfied its duties to notify the Veteran under the VCAA. In December 2008, November 2009, and January 2013 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claim on appeal. Additionally, the December 2008 letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. In the present case, initial notice was issued prior to the February 2010 adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further finds that VA has complied with the duty to assist by aiding the Veteran in obtaining evidence. It appears that all known and available records relevant to the pending appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical treatment records. The Veteran was also afforded multiple VA medical examinations, the most recent conducted in January 2013, during the appeals period. The Board notes that the VA medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Increased Rating for Bipolar Disorder The Veteran seeks a disability rating for his bipolar disorder in excess of 50 percent for the period prior to January 28, 2013, and in excess of 70 percent thereafter. The Veteran contends his bipolar disorder has resulted in a higher level of social and industrial impairment, due to such symptoms as a depressed mood, irritability, limited social contact, insomnia, and poor focus, concentration, and memory. Disability evaluations (ratings) are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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). In adjudicating increased rating claims, the level of disability in all periods since the effective date of the grant of service connection must be taken into account, to include the possibility that a staged rating may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, the Board will consider whether staged ratings are appropriate to the pending appeals. In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Bipolar disorder is rated under Diagnostic Code 9432, and utilizes the General Rating Formula for Mental Disorders. Under this Code, a 50 percent rating is warranted where 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 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. 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. A 100 percent evaluation 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. 38 C.F.R. § 4.130, Diagnostic Code 9432. In evaluating psychiatric disorders, the Board is mindful that the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only 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). VA examinations and clinical evaluations reflect assignment of various Global Assessment of Functioning (GAF) scores. The Global Assessment of Functioning is a scale reflecting the subject's psychological, social, and occupational functioning. Carpenter v. Brown, 8 Vet. App. 240 (1995). A GAF score of 40-31 is indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or 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; child frequently beats up younger children, is defiant at home, and is failing at school.). A GAF score of 41-50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessive rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF 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 (few friends, conflicts with peers or co-workers). A GAF of 61-70 reflects 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. See American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV) (4th Ed.). During the pendency of this appeal, the Veteran was afforded VA examinations in March 2009 and January 2013. He has also received regular VA outpatient treatment for his psychiatric symptoms. Records of this treatment have been obtained and reviewed. Finally, he has submitted several written statements to VA. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the issue on appeal. Gonzales v. West, 218 F.3d 1378, 1380- 81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128- 30 (2000). Rating prior to January 28, 2013 After considering the totality of the record, the Board finds the evidence more nearly approximates the criteria for a 70 percent evaluation prior to January 28, 2013. During this time period, the lay and medical evidence has demonstrated deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to bipolar disorder symptoms, as required for a higher rating of 70 percent under Diagnostic Code 9432. According to the March 2009 VA examination report and outpatient clinical records, the Veteran reported some suicidal ideation following his wife's death in 2006. He has also reported some difficulty in adapting to stressful circumstances, and stated he was only able to work for five months when he attempted to return to work in 2008 after originally retiring in 2006. He stated that he had difficulty following instructions, focusing, concentrating, and remembering his work-related training. These difficulties resulted in "repeating the same mistake over and over" and an unfavorable performance evaluation, according to the Veteran, and he quit this job. Such complaints are consistent with the GAF score of 40 assigned him in March 2009, indicative of major impairment. Resolving reasonable doubt in the Veteran's favor according to 38 C.F.R. §§ 4.3 and 4.7, the Board finds that a 70 percent evaluation is warranted for the period prior to January 28, 2013. The Veteran having been awarded a 70 percent disability rating for the period from the commencement of his appeal to January 28, 2013, the remaining question before the Board is entitlement to a disability rating in excess of 70 percent for the duration of the appeal. After considering the totality of the record, the Board finds the preponderance of the evidence to be against a disability rating in excess of 70 percent at any point during the pendency of the appeal. The Veteran has not demonstrated total occupational and social impairment as a result of his service-connected bipolar disorder. According to the March 2009 and January 2013 VA examination reports, the Veteran does not have any gross impairment in thought processes or communication, as he is able to communicate in a logical, relevant, and coherent manner with the VA examiners, as well as with other VA health care providers. He has also submitted coherent written statements in support of his claim to VA. Regarding persistent delusions or hallucinations, the Veteran has, as noted above, reported delusions, grandiose thoughts, and similar symptoms during manic episodes; however, his last reported manic episode requiring hospitalization was in 2006, upon the death of his wife. A more recent manic episode of sufficient severity to require hospitalization or resulting in delusions or hallucinations is not reported within the record. At the time of his March 2009 and January 2013 VA examinations, he denied any persistent delusions, hallucinations, or other impairment in reality testing. His behavior has also not been grossly inappropriate, according to these VA examination reports and the VA outpatient treatment records. At all times of record, he has been neat and clean in appearance, with adequate hygiene. The Veteran also denied any current homicidal or suicidal thoughts or plans, indicating he was not a persistent danger to himself or others. While he did report a suicide attempt in 2006 following his wife's death, he has repeatedly denied any such thoughts or plans since that time. He has also denied any thoughts or plans to injure others, according to the examination reports and outpatient treatment records. The Veteran has also continued to live alone and manage his own household and finances, according to the March 2009 and January 2013 VA examination reports and outpatient treatment records. This suggests he does not have an inability to perform activities of daily living or maintain minimal personal hygiene. He also has not displayed disorientation to time or place, as he has been fully aware of his person, place, time, and situation. He has reported some memory loss and difficulty concentrating on complex tasks, but has been able to remember the names of close relatives, his prior occupation, and his own name, according to treatment records. In October 2010, the Veteran stated he had registered for graduate-level courses at a local university. He has also reported recent travels and other activities indicating no more than moderate impairment in planning and organizational functioning. While the Veteran has reportedly struggled with more complicated work tasks, the evidence does not establish that less complex activities are precluded. The Veteran has managed to advance his appeal without a representative, including submitting several multi-page statements on his own behalf to VA. Additionally, while he does live alone, he also maintains contact with his mother, his sister, and various other extended family members. Such evidence demonstrates an ability to perform the tasks of daily living. The Board acknowledges that the Veteran is competent to report such observable symptomatology as his psychiatric symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran has reporting he received training as a paramedic in the 1980s, suggesting he has some basic medical knowledge by training. Additionally, the Board finds the Veteran's accounts of his symptomatology to be credible. Nevertheless, he has not reported a need for psychiatric hospitalization since 2006, and he has remained able to live alone and independently manage both his household and finances without supervision. All VA examiners and health care providers have characterized him as competent. Thus, the Veteran's assertions regarding the severity of his symptomatology are outweighed by the remainder of the lay and medical evidence of record, which suggests he is not totally impaired as a result of bipolar disorder. Overall, the Board finds that the Veteran exhibits less than total impairment as the result of his service-connected bipolar disorder. This is consistent with his January 2013 GAF score of 45, indicative of serious symptoms (e.g., suicidal ideation, severe obsessive rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Thus, the preponderance of the evidence is against a finding of total impairment, for which a 100 percent rating would be warranted. Finally, because the Veteran's level of impairment has remained essentially the same for the pendency of this appeal, a staged rating is not warranted. Extraschedular consideration will be discussed below. In conclusion, the preponderance of the evidence is against a rating in excess of 70 percent for the entirety of the appeal. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b). Extraschedular Consideration The Board has also considered whether referral for adjudication of an extraschedular rating is warranted. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). In Thun v. Peake, 22 Vet. App. 111, 115 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. If the schedular rating criteria reasonably describe a veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate a veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis in the present case, the Board finds that the symptomatology and impairment caused by the Veteran's bipolar disorder is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria for psychiatric disorders specifically provide for disability ratings based on a combination of occupational and social impairment, reported symptoms, and clinical findings. In this case, considering the lay and medical evidence, the Veteran's bipolar disorder is manifested by mental confusion and lack of focus, poor concentration, social isolation, and a depressed mood. These symptoms are part of or like or similar to symptoms listed under the schedular rating criteria at 38 C.F.R. §§ 4.130. The schedular rating criteria specifically address the Veteran's psychiatric symptomatology, including his impaired concentration, depression, and memory loss. Therefore, referral for an extraschedular evaluation is not warranted. ORDER A disability rating of 70 percent and no higher prior to January 28, 2013 for bipolar disorder is granted. A disability rating in excess of 70 for bipolar disorder is denied. REMAND TDIU During the pendency of this appeal, the Veteran has asserted that his bipolar disorder has prevented him from working. For example, in his September 2010 VA Form 9, the Veteran stated that his bipolar disorder was the cause of his inability to return to work in 2008. In his most recent statement to VA, dated in April 2013, he again stated that his service-connected bipolar disorder had rendered him unemployable. A claim for TDIU may be considered implicitly within a current increased rating claim. See Comers v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009) (a TDIU claim is "implicitly raised whenever a . . . veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating"); Rice v. Shinseki, 22 Vet. App. 447 (2009) (suggesting, in an effective date appeal, that an appeal for higher rating somehow includes TDIU, or that a TDIU must arise from an increased rating claim, unless it is the veteran who raises the TDIU claim). Entitlement to a TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012); VAOPGCPREC 75-91. A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that, if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). In the present case, the agency of original jurisdiction (AOJ) has not considered the Veteran's TDIU claim in light of the recent award of an increased rating to 70 percent for bipolar disorder. Therefore, remand is required to afford the Veteran such initial consideration of TDIU by the AOJ. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Accordingly, the issue of TDIU is REMANDED for the following action: 1. Contact the Veteran and request he file a completed VA Form 21-8940. He should be asked to provide a complete work history, whether he filed any workmen's compensation claims, and any other information regarding his employment or attempts to obtain employment. 2. After undertaking any additional development deemed appropriate, adjudicate the claim for a TDIU in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case, and should be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs