Citation Nr: 1339672 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 11-00 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to eligibility for dependence education assistance (DEA) under Title 38, Chapter 35, to include the issue of whether the Veteran has a permanent and total disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from December 1994 to April 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal following a January 2010 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In April 2012, the Veteran testified before the undersigned at the RO. A transcript of that hearing is of record. FINDING OF FACT There is reasonable doubt as to whether the Veteran's total disability rating, for service-connected bipolar disorder, is permanent in nature. CONCLUSIONS OF LAW 1. The criteria for permanent total disability have been met. 38 U.S.C.A. §§ 1502(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340(a), (b) (2013). 2. Basic eligibility for Dependents' Educational Assistance under 38 U.S.C. Chapter 35 has been met. 38 U.S.C.A. § 3501(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340(b), 21.3021(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Generally, total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). Under 38 C.F.R. § 3.340(b), permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. The permanent loss or loss of use of both hands, or of both feet, or of one hand and one foot, or of the sight of the eyes, or becoming permanently helpless or bedridden constitutes permanent total disability. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence. Id. Other factors to consider include failure to pursue treatment and whether the disability has been shown to be of longstanding duration, actually totally incapacitating, or of such a nature as to render the probability of permanent improvement remote. See KL v. Brown, 5 Vet. App. 205, 208 (1993). With regard to Chapter 35 DEA benefits, the applicable regulation identifies that DEA benefits are available to children and spouses of permanently and totally disabled veterans. 38 C.F.R. § 21.3021(a)(1)(iii) and (a)(3)(i). In an August 2004 rating decision, the RO granted service connection and assigned a total (100 percent) disability rating for bipolar disorder, effective May 1, 2004. The Veteran claims that his bipolar disorder at the current total rating should be made permanent for purposes of establishing basic eligibility for Chapter 35 benefits. Of note, the Veteran receives treatment for bipolar disorder and has been prescribed psychotropic medications, to include Lithium. In a report of July 2004 VA examination, the examiner noted that the Veteran was experiencing a severe mixed episode of bipolar disorder with marked impairment in social functioning. It was also noted that the Veteran had a persistently elevated mood with sudden angry outbursts, decreased need for sleep, pressured speech, psychomotor agitation, and distractibility. A statement from the Veteran's spouse, dated in November 2009, reported on the Veteran's frequent mood swings and temper, his ramblings when speaking, and the perception other people had of the Veteran. In a report of December 2009 VA (aid and attendance) examination, the examiner noted that the Veteran did not trust anyone, did not like going out into public, and did not go anywhere without his wife. It was also noted that the Veteran had held several jobs off and on since being out of the military, but had lost all of them secondary to his mental health condition. In a later report of December 2009 VA (mental disorders) examination, the examiner noted that the Veteran was physically fit and 34-years of age. He also noted that the Veteran demonstrated a "malevolent appearance which appeared unfeigned." It was further noted by the examiner that, Covertly [the Veteran] evidenced the possibility of an explosive emotional outburst. Again, this [V]eteran's anger appeared to be non-dramatized, authentic, in my judgment. During the course of the interview, in particular, the Veteran identified being a perfectionist and exhibiting obsessive/compulsive symptomatology. His spouse commented that the Veteran evidenced periods of paranoia and also fixated on being right. She reported that, "[The Veteran's] opinion is above all. It is his way and it is the right way and it is the only way." Otherwise, mental status evaluation revealed no evidence of impairment in thought processes or communication. There was a history of inappropriate behavior related to public hostility. The Veteran was noted to be orientated to time, place, and person. Speech was relevant and logical, but also pressured with an accompanied flushed face and what appeared to be controlled anger. The examiner's diagnosis was bipolar I disorder, which he categorized as chronic and severe with psychotic symptoms. The Veteran's global assessment of function (GAF) score was 54. The examiner opined that he was ". . . reticent with respect to a [t]otal and [p]ermanent diagnosis, not wishing to condemn an individual 34 years of age to a lifelong disability of this sort." At the above noted hearing, the Veteran testified that his psychiatric symptoms had worsened. In particular, he reported the following: I have some good days and bad days. I would say as a whole it [has] gotten worse because of my increasingly [obsessive/compulsive disorder] problem, my anger issues, my - I twitch. I get nervous around certain things. I mean, I just - it seems like the older I get the worse it's getting. Concerning contact with the general public, the Veteran reported that when he does venture out, his spouse is always with him to help keep his anger in check. The Veteran's spouse testified that the Veteran's moods fluctuated and could be different from one moment to the next. Otherwise, the Veteran reported that his social interactions were predominantly with his family and he did not handle pressure well. In the present case, the Board finds that there is evidence both for and against the Veteran being rated permanent and total for his service-connected bipolar disorder. The Board is mindful that bipolar disorder is not listed as one of the disabilities included in the list constituting permanent total disability in 38 C.F.R. § 3.340(b). Additionally, the record does not include competent medical evidence identifying the Veteran's bipolar disorder as reasonably certain to continue throughout his life, or that the probability of permanent improvement of the psychiatric disorder under treatment is remote. However, the above January 2009 VA examiner's opinion is confusing and it is not clear from the opinion what exactly the examiner was attempting to convey. For this reason, the opinion is not persuasive, especially in light of the other evidence of record. That evidence consists of the reports of VA examinations documenting the Veteran's symptoms; the Veteran's testimony along with that of his spouse, which the Board finds credible; as well as a medical journal article from the American Journal of Managed Care (obtained from the Internet). The journal article discusses the affects of bipolar disorder in one's workplace. (See Bowden, M.D., Charles L. Bipolar Disorder and Work Loss. Am J Manag Care. 2005;11:S91-S94.) Of particular relevance, the journal article emphasizes that bipolar disorder affects virtually every aspect of a patient's life and is associated with high rates of unemployment. It identifies bipolar disorder as having a profound impact on an individual's ability to find and maintain employment, and reports that most studies show that only a minority of patients were gainfully employed on a regular basis. The journal article also identifies that a majority of patients who were employed reported job-related difficulties, and between 30 percent and 60 percent of patients did not have full functional recovery, even with complete remission of symptoms. Id. (Parenthetically, The American Journal of Managed Care is an independent, peer-reviewed publication dedicated to disseminating clinical information to managed care physicians, clinical decision makers, and other healthcare professionals. See www.ajmc.com.) In light of the above, the evidence, at the very least, raises a reasonable doubt as to whether the Veteran's total rating for his service-connected bipolar disorder is permanent in nature. The evidence before the Board does not reveal any improvement in the Veteran's psychiatric disability picture since the initial grant of service connection effective May 1, 2004. Furthermore, absent a definitive opinion to the contrary, the medical literature supports that the affects of the disability are "reasonably certain to continue throughout the life of the disabled person." See 38 C.F.R. § 3.340(b). Therefore, after consideration of the evidence of record, and finding reasonable doubt in favor of the Veteran, a permanent total disability rating is found warranted for the Veteran's service-connected bipolar disorder. 38 U.S.C.A. § 5107, 38 C.F.R. § 3.102. As the Board has found that the Veteran's bipolar disorder is permanent and total, the requirements for basic eligibility for Chapter 35 benefits have been met. ORDER A permanent total disability rating for service-connected bipolar disorder is granted. Basic eligibility for Chapter 35 (DEA) benefits is established. ____________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs