Citation Nr: 1418953 Decision Date: 04/29/14 Archive Date: 05/06/14 DOCKET NO. 04-04 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating higher than 30 percent for the service connected psychiatric disability manifested by bipolar disorder and posttraumatic stress disorder (PTSD) from March 9, 2001 to May 2, 2007. 2. Entitlement to a rating higher than 70 percent for the service connected psychiatric disability manifested by bipolar disorder and PTSD from May 3, 2007. 3. Entitlement to a total rating based upon individual unemployability due to service connected disability (TDIU) prior to June 25, 2010. REPRESENTATION Appellant represented by: Robert Chisholm, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and his employer ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran had active service from July 1968 to December 1970. He served in Vietnam from April to September 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs Regional Office (RO) in Oakland, California. In February 2006, the Veteran testified during a hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In June 2006 and April 2008, the Board remanded the Veteran's case to the RO for further development. In May 2011, the Board denied the claims for higher ratings for bipolar disorder for the periods prior to and after May 3, 2007 and denied entitlement to a TDIU rating. The Board granted service connection for PTSD. He appealed the decision regarding the denial of higher ratings for the bipolar disorder and entitlement to a TDIU rating to the United States Court of Appeals for Veterans Claim (Court). In August 2011, the Court granted the Joint Motion for partial remand filed by representatives for both parties, vacated the Board's decision regarding those issues, and remanded the claims to the Board for further proceedings consistent with the Joint Motion (The Court did not disturb the grant of service connection for PTSD). In an August 2012 decision, the Board denied a rating higher than 30 percent from March 9, 2001 to May 2, 2007 for the Veteran's psychiatric disability. The Veteran was granted a rating of 70 percent for his psychiatric disability since May 3, 2007 and granted the claim for a TDIU as of June 25, 2010. The Veteran appealed this decision to the Court. The Court issued a memorandum decision in August 2013 that vacated the August 2012 Board decision to the extent claims were denied, and remanded the claims for further adjudication. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. These records have been reviewed in conjunction with the claims file. No records pertinent to this decision are in the record. The issue of entitlement to a total rating based upon individual unemployability due to service connected disability (TDIU) prior to May 3, 2007, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the period from March 9, 2001 to May 2, 2007, the Veteran's psychiatric disability was not productive of reduced reliability and productivity, or flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, impairment of short- and long- term memory, impaired judgment, impaired abstract thinking, or difficulty in establishing and maintaining effective social relationships. 2. Since the May 3, 2007, the Veteran's psychiatric disability has been manifested by symptoms of a severe nature; collectively, these symptoms suggest no more than occupational and social impairment with deficiencies in most areas. 3. Since May 3, 2007, it is more likely than not that the Veteran was unable to maintain or sustain substantially gainful employment due to service connected disability. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 30 percent for the service connected psychiatric disability manifested by bipolar disorder and PTSD from March 9, 2001 to May 2, 2007 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.1- 4.14, 4.126, 4.130, Diagnostic Code 9411, 9432 (2013). 2. The criteria for a rating higher than 70 percent for the service connected psychiatric disability manifested by bipolar disorder and PTSD since May 3, 2007 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.126, 4.130, Diagnostic Codes (DC) 9411, 9432. 3. With resolution of reasonable doubt in the appellant's favor, the criteria for a TDIU were met as of May 3, 2007. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.201, 4.3, 4.15, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in June 2001, April 2002, May 2004, and July 2006 VA advised the Veteran of the information and evidence needed to substantiate the claim. The letters provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was provided information regarding the assignment of disability ratings and effective dates. The appeal was most recently readjudicated in the July 2013 supplemental statement of the case. VA has also satisfied its duty to assist. The Veteran has been afforded VA compensation examinations, and the claims folder contains service treatment records, VA medical records and identified private medical records. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Ratings 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 (West 2002); 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 rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Veteran's psychiatric disorder is evaluated pursuant 38 C.F.R. § 4.130 Diagnostic Codes 9411 and 9432, and is subject to the criteria listed under the General Rating Formula for Mental Disorders. Under the formula, a 30 percent rating is assigned when there is 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, recent events). A 50 percent evaluation 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 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 or abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for 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); inability to establish and maintain effective relationships. A 100 percent evaluation is indicated where there is 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. 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 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A score of 31 to 40 is assigned where there is 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). Id. A score of 41-50 is assigned where there are 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). Id. A score of 51-60 is assigned where there are 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, conflict with peers or co- workers). Id. A score of 61-70 is indicated where there are 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, has some meaningful interpersonal relationships. Id. The Veteran appeals the denial of a rating higher than 30 percent for the service connected psychiatric disability manifested by bipolar disorder and PTSD from March 9, 2001 to May 2, 2007. Based on the evidence presented, the Board finds against the claim. To that end, during this period of time, it was noted that the Veteran had a history of drug and alcohol abuse for which service connection is not in effect.. Medical records generally show the Veteran was to have normal hygiene. He was organized, oriented times three and coherent. He also had clear thought processes, normal judgment and normal insight, and there was no evidence of hallucinations or delusions. He denied suicidal and homicidal ideations. Although he reported that he lost relationships by alienation and isolation, he lived with his girlfriend and it was noted that had a good social support. The above demonstrates that he was able to maintain some relationships during this time. The Board acknowledges his reports of occupational difficulties, his vocational rehabilitation records discussing his occupational impairments during this time and the testimony of his employer that the Veteran worked alone and after hours. These records indicate that the Veteran was evaluated for additional VA training. He had reported problems with transportation, and in general, despite mentioning various areas of interest, essentially took no positive steps toward starting training. He was provided with VA help finding dentists and eye doctors that would treat him with the insurance he had, but he generally seems to have missed all appointments and did not bother rescheduling. It was ultimately determined that this combination of factors made it unlikely that he would succeed at any additional training. During this time, it was also noted that the Veteran was socially rebellious and he reported having a bad temper, violent tendencies and a distrust of people. The Board does not dispute that the Veteran's PTSD caused some employment and social difficulties during this time. The Board also finds that the Veteran has been competent and credible when reporting his symptoms. While he is shown to have limitations due to his PTSD, however, occupational and social impairment with reduced reliability and productivity is not shown during this period of time. Examiners during that time generally did not indicate that he was unemployable due to his PTSD and GAF scores seem to support that conclusion. To the extent that he had occupational difficulties, depression, some social impairment, a temper and a distrust of people, the above have been contemplated in the 30 percent rating. The above symptoms do not warrant a 50 percent evaluation or higher when all the other manifestations are considered. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board has reviewed the extensive private report that has been submitted. It was concluded in that report that the Veteran was essentially unemployable from the time he was disbarred in the late 1980's. While it is clear that he had occupational difficulties during that time, part of it stemmed from his dislike of authority and his non-service connected drug and alcohol problem and his personality disorder. The question of whether this report provides an extraschedular basis for TDIU will be addressed in the remand. The Board bases its decision on the schedular rating as to this period on the more contemporaneous medical evidence of record which reveal low motivation for employment, but not such psychiatric symptoms as to warrant a higher rating at this time. The Board reiterates that the most probative medical and other persuasive evidence during this time period does not suggest that the Veteran experienced the vast majority-and arguably, more serious-symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week (consistently); difficulty in understanding complex commands; impaired abstract thinking; impaired judgment; or difficulty in establishing and maintaining effective work relationships that are characteristic of the next, 50 percent rating. In determining that the criteria for a 50 percent rating for the Veteran's psychiatric symptoms shown are not met, the Board has considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assigned rating for the psychiatric disability. See Mauerhan, 16 Vet. App. 436. Furthermore, although an examiner's classification of the level of a psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage disability rating to be assigned (38 C.F.R. § 4.126), it is notable that for the period considered in this appeal the Veteran's GAF scores ranged between 57 to 70 which indicates mild to moderate disability. In the view of the Board, the GAF scores are consistent with the Veteran's PTSD symptomatology and no more than a 30 percent rating. The Board further finds against a rating higher than 70 percent for the service connected psychiatric disability since May 3, 2007. In this regard, the evidence reviewed since March 3, 2007 to include the VA examinations, outpatient treatment records, the May 2012 report of W.A and the lay statements of record, demonstrate that the majority of the type of criteria contemplated for a 100 percent rating have not been demonstrated. The evidence shows that the Veteran has a history of difficulty in adapting to work or worklike settings, and anger and anxiety. There have also been subjective reports of violent episodes, visual and auditory hallucinations, difficulty sleeping and being compromised in social relations. He also reports some memory problems, self isolation, depression, hyperviligance, and irritability. The Board notes, however, that total impairment is not shown by the record. To that end, the treatment records show that the Veteran is oriented and he is without delusions. His insight and judgment are fair and thought process unremarkable but yet rambling. He understands the outcome of his behavior; does not exhibit persistent hallucinations, inappropriate behavior, obsessive/ritualistic behavior and demonstrates good impulse control. While suicidal thoughts are noted, such are without intent or plan and homicidal ideations are absent. He enjoys watching sports and has a few interests other than television. The Veteran has had the same girlfriend for over 20 years with whom he lives with. The above demonstrates that he can maintain some relationships. The October 2010 VA examiner also found that while there was reduced reliability and productivity due to PTSD symptoms, total occupational and social impairment due to PTSD is not shown. These findings justify no more than a 70 percent rating. Furthermore, during this period of time the Veteran's GAF scores ranged between 46 to 57 denoting moderate to serious impairment. In the view of the Board, the GAF scores are consistent with the Veteran's PTSD symptomatology and no more than a 70 percent rating. The Veteran has been competent and credible when reporting his symptoms. The Board acknowledges his reports to include occupational difficulties and does not dispute that the Veteran's PTSD severely impacts his employability. While his disability is shown to be manifested by occupational difficulties, anger issues, some paranoia, sleep difficulty, memory impairment, self isolation, depression, hyperviligance, social impairment and irritability, the above have been contemplated in the 70 percent rating. The above symptoms do not warrant a 100 percent evaluation when all the other manifestations are considered. See Mauerhan, 16 Vet. App. 436. In sum, the Veteran's symptoms are more characteristic of a disability picture that is contemplated by a 70 percent rating and no more. Stated differently, the medical and lay evidence as well as the GAF scores establish that there is occupational and social impairment with deficiencies in most areas. The manifestations, however, even when accepted as credible, do not establish total occupational and social impairment. Neither the lay or credible medical evidence shows these symptoms have been persistent or rises to the level required for a schedular 100 percent evaluation during the applicable time period. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no other provision upon which to assign a higher rating. Accordingly, the claim is denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b). The Board considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) ; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). There are no exceptional or unusual factors with regard to the Veteran's disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.") Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology to include social and occupational impairment, and provide for consideration of greater disability and symptoms than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. TDIU Prior to June 25, 2010 In a prior decision, the Board assigned a 70 percent rating effective May 3, 2007, and a TDIU as of June 25, 2010. It has essentially been contended that the Veteran was rendered gainful of only menial employment as of the date of the 70 percent rating. This despite a finding by the 2007 examiner that he was not precluded from employment secondary to his PTSD. As noted in the prior decision making the award of the 70 percent rating, and the discussion above concerning the assignment of that rating as of May 2007 there was an increase in pathology. Reviewing all evidence now on file in its entirety, the Board concludes that the evidence is in equipoise as to this issue. Resolving such doubt in the Veteran's favor, a TDIU is granted as of May 3, 2007. A basis for an extraschedular rating for TDIU from an earlier date is discussed in the Remand below. ORDER A rating higher than 30 percent for the service connected psychiatric disability manifested by bipolar disorder and PTSD from March 9, 2001 to May 2, 2007 is denied. A rating higher than 70 percent for the service connected psychiatric disability manifested by bipolar disorder and PTSD since May 2, 2007 is denied. A TDIU as of May 3, 2007, is granted. The appeal is allowed to this extent subject to the law and regulations governing the award of monetary benefits. REMAND The Veteran appeals the denial of a total rating based upon individual unemployability due to service connected disability prior to May 3, 2007. The Veteran's service-connected psychiatric disorder to include bipolar disorder and PTSD was evaluated as 30 percent from September 18, 1989 to May 2, 2007. He contends that his service connected disability prevented him for obtaining and maintaining substantially gainful employment since 1987 when he last worked full time. In July 2001, a vocational and rehabilitation report noted that the Veteran had significant impairments to employability that justify a serious employment handicap. The counselor commented that the Veteran worked as a cook which was well below his level of education and that employment impairments resulted from his service connected disability. Although the May 2002 VA examiner found that the Veteran was employable because he was currently working, he stated that the work was rather marginal. The May 2007 VA examination revealed that the Veteran worked as a dishwasher and janitor. The examiner, however, could not say whether the Veteran was unemployable. Rather, he noted that the Veteran did not seem motivated to attempt to work and that he has chosen to live his life where he is and not be involved in any kind of treatment. In May 2012, however, licensed psychologist, W.A, found that since the Veteran's disbarment from the law he has been employed only in odd jobs and in sheltered work environments. She ultimately concluded that the Veteran was unable to maintain substantially gainful employment after 1986 and as likely as not was permanently and totally disabled by 1991. The Board observes that the Veteran's disability did not meet the schedular criteria for a TDIU prior to May 3, 2007. In light of the evidence of record, however, the Board finds that a remand is warranted to refer the Veteran's claim for a TDIU prior to that date to the Director of Compensation and Pension Service for extraschedular consideration. It is also noted that to the extent there are unappealed rating actions that assigned ratings which were not appealed and became final, free standing claims for earlier effective dates have concerns of finality. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's claim for TDIU prior to May 2007, to VA's Director of Compensation and Pension Service in accordance with 38 C.F.R. § 4.16(b) for consideration of entitlement on an extra-schedular basis. 2. Upon completion of the above requested development and any additional development deemed appropriate, the AMC/RO must readjudicate the issue. All applicable laws and regulations should be considered. If the benefits sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs