Citation Nr: 1336370 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 13-10 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to a rating in excess of 70 percent for service-connected bipolar disorder, not otherwise specified (NOS) and anxiety disorder, NOS. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected bipolar disorder and anxiety disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran had active duty service from August 2007 to May 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision which continued a 70 percent rating for the Veteran's service-connected bipolar and anxiety disorders. In addition, the Board finds that the issue of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). For purposes of clarity, the TDIU issue is listed on the first page of this decision. The issue of entitlement to a TDIU is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence reasonably shows that the Veteran's bipolar disorder and anxiety disorder are manifested by total occupational and social impairment due to such symptoms as delusions, hallucinations, persistent suicidal ideation, impaired impulse control, and an intermittent inability to perform activities of daily living. CONCLUSION OF LAW The criteria for a 100 percent evaluation for bipolar disorder and anxiety disorder have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.16(c), 4.126, 4.129, 4.130, 4.132, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5013A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Inasmuch as this decision grants the appellant's claim, there is no reason to belabor the impact of the VCAA on this matter, since any notice error or duty to assist omission is harmless. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's service-connected bipolar and anxiety disorders are currently rated 70 percent disabling under Diagnostic Code 9411. The Veteran contends that his disability picture is more severe than what is reflected by the 70 percent rating. A 100 percent rating is warranted where the disorder is manifested by 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 oneself or others; an intermittent inability to perform the activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, one's own occupation, or one's own name. The Board recognizes that the Court in Mauerhan v. Principi, 16 Vet. App. 436 (2002), stated that the symptoms listed in VA's general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Following a careful review of the evidence, the Board finds that the current severity of the Veteran's psychiatric disability warrants a 100 percent evaluation. In reaching this determination, the Board observes that the Veteran has been declared not competent to handle disbursement of funds based on findings from January 2011 VA mental health examination. See October 2011 rating decision. Additionally, a September 2012 VA treatment record notes the Veteran reported being "in crisis." He reported out of control anger, which included verbal outrages toward his wife and two sons. He stated that most of his anger incidents revolved around his two-year old son's behavior, which he described as "stupid." The Veteran also reported mood problems, saying he alternated between very depressed moods and very agitated angry moods. On February 2013 VA psychiatric evaluation, he reported daily symptoms including dysphoric/irritable mood, insomnia, fatigue, mood variation (significantly worse in the evening hours), anhedonia, social withdrawal, decreased concentration, decreased short-term memory, rumination, indecision, sense of hopelessness, sense of worthlessness, sense of guilt, not caring if he lived or died, and having suicidal thoughts with a plan (hanging) without a specific timetable. He also reported auditory hallucinations. He denied thoughts of harm to others and hypomanic/manic symptoms. A mental status examination revealed he was alert and oriented times three. His mood was "edgey" and his affect was decreased in range, but still appropriate. The examiner noted that his insight and judgment were intact and rendered a GAF score of 50. On February 2013 VA mental disorders examination, the Veteran reported a daily depressed mood for the past two months and an increase in isolation. He stated that his appetite varies from not eating anything for three days and then to eating only junk food. He reported no interest in eating meals. He reported feelings of emptiness, impulsive behavior, and problems with concentration, including racing thoughts, lack of interest, and an increase in distractibility. He also stated that he "feels like he is going to explode" and stated that his "skin is crawling and there is a fire inside." The Veteran indicated that he experiences insomnia and stated he awakes early due to the tension that he does not know what to do with. The Veteran further described an emotional numbness and a lack of sexual drive or interest. He stated he feels detached and estranged from the world. As for suicidal ideation, he described chronic and constant thoughts of "not wanting to be here anymore" but stated he does not have a plan. On examination, the examiner noted depressed mood, anxiety, suspiciousness, panic attacks once per week, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, suicidal ideation, and neglect of personal appearance and hygiene. The examiner further noted that there has been an increase in the Veteran's depressed mood and that he has experienced an increase in irritability with his mother-in-law, wife, and children, and in the classroom. Further, the Veteran has experienced racing thoughts and anger outbursts (i.e. thrown TV remote and broken things in the home). The examiner also noted that the Veteran hears buzzing and ringing in his ears with stress and reported not caring about dressing, stating he wore the same pair of jeans for one week. The examiner noted that the Veteran had been attending college classes for the last two years but that the Veteran's G.P.A. had plummeted from a 3.5 the first year to a 2.6 the second year. Further, the Veteran reported that he was going to withdraw from classes and that he had quit going to classes. He had also become "sporadic" in his mental health treatment. The examiner concluded that the Veteran has been experiencing and continues to experience a Major Depressive Episode, wherein he is no longer able to maintain his academic performance or maintain providing child care for his children. The examiner noted that there may be a problem with medication compliance, but noted that in the Veteran's current state, his occupational, family role, interpersonal relationships, and leisure and recreational functioning "are severely impaired by his psychiatric condition." In April 2013, the Veteran's wife submitted a statement indicating that her husband is not capable of watching their two children and that his temper and mood are unpredictable. She stated that he has had suicidal thoughts numerous times in the last month and that she cannot trust him to take care of the kids or his finances. She reported that at times, he doesn't shower for weeks and wears dirty clothes for days. She also stated that now he is failing out of his classes at school and that he is isolating himself from her and the kids for days at a time. She stated that her husband is getting worse. An April 2013 mental health record noted continued suicidal thoughts with a plan (hanging) but no timetable, and noted that these had decreased in frequency from approximately every two weeks to now every three weeks. The Veteran reported worsened thought disorder symptoms, stating he hears noises and voices that are not there. The Board notes that the above findings and impressions are consistent with the Veteran's and his wife's statements as to the severity of his psychiatric disorder. Significantly, the evidence shows the Veteran experiences delusions and hallucinations, has persistent thoughts of hurting himself (and at one point, devised a plan to do so), has impaired impulse control, and has an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene and eating). Additionally, the Veteran's wife reports that he is no longer able to care for their children. The Board also finds it notable that the Veteran has been deemed financially incompetent by VA as due to his psychiatric disorders. Given the evidence of record, the Board is unable to find that the preponderance of the evidence is against a finding of total occupational and social impairment. Thus, affording the Veteran the benefit of the doubt, the Board finds that a 100 percent schedular rating is warranted for the Veteran's bipolar and anxiety disorders. ORDER Entitlement to a 100 percent schedular rating for bipolar disorder and anxiety disorder is granted, subject to laws and regulations governing the payment of VA monetary benefits. REMAND As noted in the introduction, the Veteran's claim for an increased rating includes the issue of entitlement to a TDIU. The Veteran was previously denied a TDIU rating in an unappealed December 2011 rating decision. It was noted during the current appeal, on February 2013 VA examination, that the Veteran was unemployed. While a 100 percent schedular rating is granted for the Veteran's psychiatric disorder, above, it is for the AOJ to assign an effective date for that award in the first instance. The issue of TDIU would be moot for any period where the 100 percent schedular rating was awarded because no additional benefit would be available to the Veteran for that period. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, to the extent that there remains any period during this appeal where the 100 percent schedular rating is not awarded, the TDIU matter must be adjudicated by the AOJ/RO in the first instance. Accordingly, the case is REMANDED for the following action: To the extent that there remains any portion of this appeal where a 100 percent schedular rating for service-connected psychiatric disability is not awarded, after providing any necessary notice and development, the AMC/RO should formally adjudicate a TDIU claim for such period. The Veteran and his representative should then be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The appellant 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 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). ____________________________________________ M.C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs