Citation Nr: 1337339 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 07-39 042 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a higher initial disability rating (evaluation) for service-connected disorder (previously diagnosed as intermittent explosive disorder and subsequently as not otherwise specified bipolar disorder with psychotic features and a history of intermittent explosive disorder), in excess of 50 percent for the period prior to October 8, 2009, and in excess of 70 percent for the period on and after October 8, 2009. 2. Entitlement to an increased disability rating in excess of 10 percent for lumbar spine degenerative disc disease. 3. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to October 8, 2009. REPRESENTATION Appellant represented by: Keith D. Snyder, Attorney ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. He had active service from July 1997 to March 2004. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Winston-Salem, North Carolina, Regional Office (RO), which established service connection for intermittent explosive disorder, assigned a 10 percent initial rating for that disability, and effectuated the award as of December 1, 2005. In November 2006, the RO established service connection for lumbosacral strain, assigned a 10 percent rating for that disability, and effectuated the award as of December 1, 2005. In April 2009, the RO recharacterized the Veteran's service-connected lumbar spine disorder as lumbar spine degenerative disc disease evaluated as 10 percent disabling and denied a TDIU. In September 2007, the RO granted a higher initial evaluation for the Veteran's psychiatric disorder from 10 to 50 percent. In September 2009, the Board denied a rating in excess of 50 percent for intermittent explosive disorder. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In November 2010, the Court granted the Parties' Joint Motion for Remand; vacated the September 2009 Board decision; and remanded the Veteran's appeal as to the initial rating for the psychiatric disorder to the RO for additional action. In April 2011, the RO recharacterized the Veteran's service-connected psychiatric disorder as not otherwise specified bipolar disorder with psychotic features and a history of intermittent explosive disorder, granted a higher evaluation for that disability from 50 to 70 percent, and effectuated the award as of October 8, 2009. The April 2011 rating decision was not immediately provided to the Board. In June 2011, the Board, without knowledge of the April 2011 rating decision, remanded the issues of "an initial rating in excess of 50 percent for intermittent explosive disorder;" an increased rating for lumbar spine degenerative disc disease, and a TDIU to the RO for additional action. Such action did not result in any detriment to the Veteran as the Board would have directed the RO to undertake the same development of the Veteran's claims if it had been aware of the favorable April 2011 rating decision to assign a 70 percent rating for a stage of the rating. In November 2011, the RO, in pertinent part, granted a TDIU and effectuated the award as of October 8, 2009. The Board has reviewed both the physical claims files and the Veterans Benefits Management System (VBMS) and "Virtual VA" files so as to insure a total review of the evidence. The issue of an increased rating for lumbar spine degenerative disc disease is REMANDED to the RO. FINDINGS OF FACT 1. During all relevant periods, the service-connected psychiatric disability has been manifested by 100 percent total social and occupational impairment as the result of recurrent periods of explosive behavior including violence towards the Veteran's wife, minor child, and friends, and altercations with the police; multiple suicide attempts; auditory and visual hallucinations; and paranoid ideation. 2. The award of a 100 percent schedular evaluation for the entire rating period renders moot the issue of a TDIU for the period prior to October 8, 2009. CONCLUSIONS OF LAW 1. The criteria for an initial 100 percent schedular evaluation for service-connected psychiatric disorder have been met for the entire initial rating period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.3, 4.7, 4.130, Diagnostic Code 9432 (2013). 2. The issue of a TDIU for the period prior to October 8, 2009 is moot. 38 U.S.C.A. §§ 1155, 7104(d)(5) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.340, 3.341 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473(2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this decision, the Board grants an initial 100 percent schedular rating for the service-connected psychiatric disorder; therefore, no further discussion of VA's duties to notify and to assist is necessary as to that issue. Higher Initial Rating for Service-connected Psychiatric Disorder The Veteran asserts that his service-connected bipolar disorder warrants a higher initial rating as it is manifested by severe psychiatric symptomatology including multiple suicide attempts; explosive episodes with violence toward his wife and minor child; and multiple psychiatric hospitalizations. As will be established below, the Board finds that the service-connected psychiatric disability more nearly assignment of an initial 100 percent schedular rating as it has been shown to be manifested by total social and occupational impairment as the result of symptomatology including recurrent periods of explosive behavior including violence towards the Veteran's wife, minor child, and friends; associated altercations with the police; multiple suicide attempts; auditory and visual hallucinations; paranoid ideation; and GAF scores of between "20-25" and "60-70." The service treatment records reflect that the Veteran was treated for psychiatric symptoms. A June 2003 Army psychiatric hospital summary indicates that the Veteran was being treated for depressive symptoms, had a marital argument, and then cut his wrist and took an overdose of Serzone, a anti-depressant medication. A June 2004 VA treatment record states that the Veteran presented a history of an attempted suicide approximately four months before the appointment. The Veteran was diagnosed with a bipolar disorder. VA clinical documentation dated in July 2004 relates that the Veteran reported "nearly" striking his wife during the previous evening. He exhibited "pronounced mood swings." The treating VA medical personnel observed that the Veteran "does appear to be violent." An assessment of a bipolar disorder was advanced. The report of a September 2006 VA psychiatric examination for compensation purposes notes the Veteran's history of "violence/assaultiveness" and an in-service attempted suicide with a subsequent psychiatric hospitalization. An intermittent explosive disorder was diagnosed and a Global Assessment of Functioning (GAF) score of 60 was advanced. Disability evaluations are determined by comparing the current service-connected symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. A 50 percent evaluation is warranted for a bipolar disorder which is productive of occupational and social impairment occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring 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 or 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 evaluation requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 an inability to establish and maintain effective relationships. A 100 percent evaluation requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9432. In assessing the evidence of record, it is important to note that the GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing Fourth Edition of the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV), p. 32). A score of 61 to 70 indicates the presence of mild symptoms and/or some difficulty in social, occupational, or school functioning, but a generally satisfactory level of functioning. A GAF score of 51 to 60 is defined as "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 is defined as "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 score of 31 to 40 is defined as "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 21 to 30 is defined as "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 score of 11 to 20 denotes "some danger of hurting self or others (e.g. suicide attempts without clear expectation of death, frequently violent; manic excitement) OR occasionally fails to maintain minimal personal hygiene (e.g. smears feces) OR gross impairment in communication (e.g. largely incoherent or mute). Where there is a question as to which of two disability evaluations shall be applied, 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. At the September 2006 VA psychiatric examination for compensation purposes, the Veteran complained of irritability; an "increased problem with temper" which became uncontrollable if it got out of hand; and a temper flare due to his baby crying during the previous night. He clarified that he "gets to a point where he is so mad he is in so much rage it is unbelievable ...[and] it ... does destroy property." His history of "violence/assaultiveness" and an in-service attempted suicide with a subsequent psychiatric hospitalization were noted. The Veteran was observed to be neatly dressed and groomed and oriented to person, place, and time. On mental status examination, the Veteran exhibited a normal affect, a good mood, "unremarkable" thought processes and content; and no suicidal or homicidal ideation. An intermittent explosive disorder was diagnosed. A GAF score of 60 was advanced. The examiner commented that the Veteran's current disability picture was "more likely than not a continuation of problems seen in the military." A June 2007 VA mental health clinic evaluation notes that the Veteran complained of paranoia; a fluctuating mood; becoming "irritable and angry easily;" and stresses at work and home. On mental status examination, the Veteran exhibited a depressed mood; a constricted affect; paranoia; and no hallucinations or suicidal or homicidal ideation. A GAF score of 55 was advanced. The Veteran was prescribed additional medication. A July 2007 VA mental health clinic treatment record states that the Veteran reported that he had stopped taking his prescribed medication. The Veteran's wife stated that he was becoming irritable and angry. On mental status examination, the Veteran exhibited a "down" mood; a constricted affect; and no suicidal or homicidal ideation. At a September 2008 VA psychiatric examination, the Veteran complained of worsening anger; physical violence directed towards his wife and his three year old child which resulted in him spanking his child "too hard," breaking items, and interacting with the police; having "trouble with work;" "poor compliance with medications;" and his sleep schedule had been "flipped" as he was awake all night and asleep during the day. He experienced depressive periods followed by violence and then "creative" periods of excessive energy and spending. The Veteran clarified that his service-connected lumbar spine disorder had caused him to lose his job. He was observed to be clean; appropriately dressed; and oriented to person, time, and place. On mental status examination, the Veteran exhibited a constricted affect; a good mood; "unremarkable" thought content and processes; episodic violence; intact memory; and no hallucinations or suicidal or homicidal ideation. A not otherwise specified mood disorder and a GAF score of 60 were advanced. The examiner commented that the Veteran exhibited a three month cycle of mild depressive symptoms following explosions of anger and hypomanic phases. A January 2009 VA treatment record reports that the Veteran complained of racing thoughts and less frequent anger. He reported an episode at a food court in which he was being watched. An April 2009 psychological evaluation from D. Johnson, M.A., notes that the Veteran complained of irritability; being suspicious; having racing thoughts and mood swings; and poor sleep. The Veteran was appropriately dressed and "well-oriented." On mental status examination, the Veteran exhibited an appropriate affect. A diagnostic impression of a not otherwise specified mood disorder by history and a GAF of "60-70" were advanced. A June 2009 VA mental health clinic evaluation states that the Veteran complained of a fluctuating mood with irritability and anger. He reported being "stressed out" over his wife being nine and a half months pregnant, his bad neighborhood, and the denial of his SSA claim. The Veteran's spouse reported that the Veteran "gets mad;" becomes isolated and non-communicative; and buys items which he cannot afford. On mental status examination, the Veteran exhibited an irritable mood, a constricted affect, and no suicidal or homicidal ideation. VA clinical documentation dated in October 2009 notes that the Veteran sought admission to the hospital with complaints of irritability; depression; hearing and seeing a dead soldier; racing thoughts; suicidal thoughts without a plan; low frustration tolerance; limited impulse control; and not sleeping at night. The Veteran was diagnosed with depressed-type bipolar disorder and posttraumatic stress disorder (PTSD). A GAF score of 45 was advanced. A February 2010 VA mental health clinic treatment record conveys that the Veteran reported that his mood fluctuations and racing thoughts had lessened and he felt "emotionally numb." He was noted to be oriented times three. On mental status examination, the Veteran exhibited paranoia; an "OK" mood; and a constricted affect; and denied suicidal and homicidal ideation. A September 2010 VA mental health clinic evaluation notes that the Veteran complained of irritability, suspiciousness, mood fluctuations, and auditory hallucinations. He reported that he had not been compliant with his psychiatric medication. On mental status examination, the Veteran was found to be oriented times three and to exhibit a "little depressed" mood; a constricted affect; paranoia; and auditory hallucinations. Clinical documentation from Cape Fear Hospital dated in October 2010 indicates that the Veteran was admitted after the police brought him to the hospital. The officers had observed the Veteran to pull down his pants and accuse them of trying to rape him and to choke himself with a car seatbelt. The Veteran reported that he heard "screaming voices telling me to ... do stupid things" and felt that people were talking about him. He was noted to have previously reported suicidal thoughts and contemplating how to get a police officer to shoot him. On admission, the Veteran was diagnosed with a schizoaffective disorder and PTSD. A GAF score of "20 to 25" was advanced. A February 2011 VA mental health clinic evaluation states that the Veteran reported that he "gets very suspicious" and occasionally hears a screaming voice. On mental status examination, the Veteran was found to be oriented times three and to exhibit an "OK" mood; a constricted affect; paranoia; auditory hallucinations; and no suicidal or homicidal ideation. At an April 2011 VA psychiatric examination, the Veteran reported that his psychiatric symptoms had increased in severity over the preceding year and now included hearing voices in his head; racing thoughts; being constantly paranoid; episodic violence; an inability to sleep at night; irritability; excessive spending; and a lack of interest in things. The Veteran was observed to be slightly ill-kept, tremulous in the hands, and oriented to person, time, and place. On mental status examination, the Veteran exhibited a blunted and constricted affect; a mood which "moves from anxiety to angry to mellow;" auditory hallucinations; paranoid ideation; mildly impaired memory; poor impulse control; episodic violence; and an inability to maintain minimum personal hygiene. A diagnosis of not otherwise specified bipolar disorder with psychotic features and a history of an intermittent explosive disorder and a GAF score of 49 were advanced. An August 2011 Counseling Record - Narrative Report (VA Form 28-1902b) indicates that the Veteran's service-connected disabilities rendered the achievement of a vocational goal infeasible. A December 2011 Independent Living Assessment Report from G. Moore, M.A., conducted for VA conveys that the Veteran did not have appropriate personal hygiene; had to be reminded to take his medications; and lived in non-sanitary conditions. During all relevant periods, the service-connected psychiatric disability has more nearly approximated total social and occupational impairment as the result of symptoms such as recurrent periods of explosive behavior including violence towards the Veteran's wife, minor child, and friends; altercations with the police; multiple suicide attempts; auditory and visual hallucinations; paranoid ideation; and GAF scores of between "20-25" and "60-70." The Board acknowledges that the service-connected psychiatric symptoms cycle between being severe and relatively mild in degree. However, given the nature of bipolar disorders and the documented severity of the psychiatric symptomatology and upon applications of the provisions of 38 C.F.R. §§ 4.3, 4.7, the Board concludes that an initial 100 percent schedular rating is warranted for the entire initial rating period. TDIU Prior to October 8, 2009 TDIU may be assigned where the combined schedular rating for the service-connected disability or disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to render a veteran unemployable without regard to either his advancing age or the presence of any nonservice-connected disorders. 38 U.S.C.A. §115; 38 C.F.R. §§ 3.340, 3.341. Given the award above of an initial 100 percent schedular rating for service-connected psychiatric disorder, the issue of a TDIU for the period prior to October 8, 2009 is now moot. 38 U.S.C.A. § 7105(d)(5) ORDER An initial 100 percent schedular evaluation for service-connected psychiatric disorder is granted. The issue of a TDIU for the period prior to October 8, 2009 is dismissed. REMAND Increased Rating - Lumbar Spine Degenerative Disc Disease The Veteran asserts that an increased rating for his lumbar spine degenerative disc disease is warranted as the disability is manifested by significant spinal limitation of motion which prevented him from performing the movements required of his prior employment as a mechanic. The voluminous VA psychiatric treatment records note that the Veteran repeatedly reported that he had been unable to perform the physical duties of a civilian mechanic with the military due to the functional limitation of motion associated with his lumbar spine degenerative disc disease. The Veteran was last afforded a VA spinal examination in December 2008 which revealed an essentially full range of motion of the lumbar spine without pain. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Given the apparent increase in severity of the lumbar spine disability including functional limitation of motion, an additional VA spinal examination would be helpful in resolving the issues raised by the instant appeal. VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Clinical documentation dated after November 2012 is not of record. Accordingly, the case is REMANDED for the following action: 1. Identify health care providers and request treatment records. Contact the Veteran and request that he provide information as to all treatment of his lumbar spine degenerative disc disease after November 2012, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, the RO should contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the appellant, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. VA treatment records. Associate with the record any VA clinical documentation pertaining to the treatment of the Veteran's spine not already of record, including that provided after November 2012. 3. Schedule the Veteran for a VA spine examination for compensation purposes in order to assist in determining the current nature and severity of his lumbar spine degenerative disc disease. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should identify the limitation of activity imposed by the Veteran's lumbosacral spine degenerative disc disease with a full description of the effect of the disabilities upon his ordinary activities. The examiner should fully describe any weakened movement, excess fatigability, and incoordination present. Determinations on whether the Veteran exhibits pain with use of his lumbosacral spine should be noted and described. If feasible, the determinations concerning pain, weakness and fatigability should be portrayed in terms of the degree of additional range of motion loss or ankylosis. If such a determination is not feasible, this should be stated for the record and the reasons provided. All relevant medical records, including those in the claims folders, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. Readjudicate the issue of an increased rating for lumbar spine degenerative disc disease. If any benefit sought on appeal remains denied, the Veteran and his attorney should be provided a SSOC. An appropriate period of time should be allowed for response before the case is returned to the Board. 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of this claim. See 38 C.F.R. § 3.655 (2013). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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