Citation Nr: 1605115 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 14-24 199A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from June 3, 1977, to July 28, 1978. This matter comes before the Board of Veterans' Appeals (Board) from a December 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to a TDIU. The December 2007 rating decision was resultant to the Veteran's July 2007 claim of entitlement to a TDIU. The Veteran filed another claim of entitlement to a TDIU in April 2011 and such was denied by a July 2011 rating decision, to which the Veteran submitted a Notice of Disagreement (NOD) and the current appeal was initiated. The Board finds that the December 2007 rating decision is the rating decision on appeal. The Veteran did not file a NOD with the July 2007 rating decision; however, additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision; specifically, VA treatment records discussing his competency and employability. See 38 C.F.R. § 3.156(b) (2015); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the July 2007 rating decision did not become final and serves as the rating decision on appeal. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2015); 38 C.F.R. § 20.1103 (2015). FINDING OF FACT During the entire appellate period, the Veteran meets the schedular criteria for a TDIU; and resolving all doubt in his favor, his service-connected bipolar disorder prevents him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met during the entire appellate period. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2015); 38 C.F.R. § 4.16 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Service connection is currently in effect for bipolar disorder, rated as 70 percent disabling, effective August 23, 2006, prior to the Veteran's July 2007 claim. Therefore, as the Veteran's only service-connected disability is rated as 70 percent disabling, he meets the schedular requirement for a TDIU during the entire appellate period. Id. During a September 2006 VA interview, conducted in connection with the VA's finding of incompetency, since rescinded, the interviewer reported that the Veteran had a poor memory and experienced auditory hallucinations. The interviewer reported that there was no real indication that the Veteran's condition would improve. The Veteran reported that he attended Alcoholics Anonymous meetings, slept "a lot," worked on his automobile, and made meals. The interviewer noted that the Veteran had not worked since the early 1990's and had a long history of short term jobs; and that he could work again as a laborer, but the Veteran stated that "he can't handle it." The interviewer concluded that the Veteran was not a candidate for vocational rehabilitation and a not a candidate for reemployment due to his attitude and lack of motivation. On VA examination in November 2006, the examiner noted that the Veteran reported that his longest job was in the Navy and subsequent to that, he worked six months as a mover, but otherwise had multiple jobs, being unable to maintain steady employment due to his symptoms and his combination of mood disorder, anxiety disorder, and substance use diagnoses. The Veteran described his inability to work as due to depression, mood swings, anxiety, and reduced motivation and low energy. The examiner concluded that as he presented himself, the Veteran was not employable in the competitive market. The Veteran presented on mental status examination, in pertinent part, with auditory hallucinations as recently as the week prior, no insight, and a depressed mood and affect, with some anxiety. His spelling was poor and he had concentration difficulties. The examiner determined that the Veteran, with mood swings, hallucinations, and panic attacks, was not competent to manage his VA benefits. The examiner diagnosed the Veteran with bipolar disorder with recent episode, with depression and psychotic features, agoraphobia, panic disorder, and substance abuse, which were all interrelated, namely to the bipolar disorder. During VA treatment in January 2008, the Veteran reported that he tried to work for a few days a mechanic; however, he became stressed and was not able to continue. On VA examination in November 2008, the Veteran presented on mental status examination, in pertinent part, with thought content preoccupied with one or two topics and a euthymic mood. The Veteran reported that he had stopped working in 1999 due to poor control of bipolar symptoms, and noted that he would like to try working again to see if he could tolerate work without the worsening of bipolar symptoms. The examiner reported that the Veteran's mood and current prescription medication regimen, as well as his good concentration, had been stable for three months, and if such remained, it would allow him to function at work; however, he could not be sure if working would worsen bipolar symptoms, as the Veteran had not worked. The examiner diagnosed the Veteran with bipolar disorder, currently asymptomatic and stable. The examiner concluded that there was an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to a mental disorder, but with generally satisfactory functioning; and noted that the Veteran had a brief two-to-three day manic episode three months prior which would have caused problems functioning at work. During VA treatment in March 2009, the Veteran reported feeling isolated, depressed, and paranoid. In April 2009, the Veteran was hospitalized for psychiatric symptoms, including suicidal thoughts. During VA treatment in January 2010, the Veteran reported private hospitalization for suicidal thoughts. He sought emergency treatment for depression after intentionally cutting his arm in February 2010. In a May 2011 statement, signed by the Veteran, it appears that he included employment information from one his former employers indicating that he was employed for a short period of time, was unable to keep up with the requirements of the job, and was released of his duties. He included what appears to be information from his landlord indicating that the landlord witnessed the Veteran's mood swings, quite often, and that he stayed in his room for days at a time. During VA treatment in June 2011, the Veteran complained of mild to moderate depression, sleep problems, irritability, and periods of "too much energy." He reported that he had tried to work and could not seem to stay focused enough to hold down a job. On VA examination in June 2011, the Veteran complained of: anhedonia; the tendency to isolate and avoid social and other activities; mood swings with feeling very depressed versus hyperactive, with his depressed states being more prolonged that his manic and hypomanic states; irritability; and decreased ability to focus on tasks. He presented on mental status examination, in pertinent part, with fatigued and tense psychomotor activity, an irritable attitude, a flat affect, a dysphoric and labile mood, weekly severe panic attacks, poor impulse control, suicidal thoughts without plan or intent, episodes of violence with frequent verbal altercations, and thought content preoccupied with one or two topics and ideas of reference. The examiner noted that the reason given for the Veteran's unemployment was psychiatric symptoms due to bipolar disorder and polysubstance dependence. He noted the Veteran's five psychiatric hospitalizations for suicidality, depression, mood swings, and polysubstance abuse, and noted that review of the record revealed chronic and intermittent psychiatric symptoms of variable severity. The examiner diagnosed the Veteran with bipolar disorder and polysubstance abuse in full sustained remission. The examiner, in June 2011, concluded that the Veteran's bipolar disorder symptoms of mood swings, chronic irritability, and decreased ability to focus on tasks may lead to intermittent decrease in work efficiency and periods of lowered work performance and productivity, and that the Veteran may be able to perform physical and sedentary work in a very low stress environment with minimal social interactions. He also noted that the Veteran's mental disorder resulted in deficiencies in thinking, as he had referential thinking, and also resulted in deficiencies in work, due to his irritable and labile mood impacting interactions with coworkers, supervisors, clients, or customers. The examiner reported that his distractibility would lead to problems remembering work-like procedures or follow detailed instructions, making work-related decisions, sustaining an ordinary routine without supervision, and focusing on complex tasks. The examiner reported that the Veteran's intermittent mood swings, short temper and irritability, anhedonia, fatigue, decreased ability to focus on complex tasks and maintain pace and persistence would be problematic without an unreasonable number of and length of rest periods. A private April 2015 evaluation report is of record. The evaluator reported that she had reviewed the claims file. She cited records related to the Veteran's disability benefits from the Social Security Administration (SSA), specifically, records indicating that the Veteran's psychiatric condition had a marked effect on maintaining concentration, persistence, or pace. The Board notes here that the Veteran's SSA records are dated in the years preceding the current July 2007 claim, as he was granted such benefits effective in 2004. She also cited pertinent parts of the VA examinations of record. However, the value of her evaluation rests in her opinion that based on research, included in her submission to the Board, most employers will tolerate variable rates of absence, most tolerating no more than eight days each year; and that the Veteran would be expected to miss more than this amount based on his report of mental symptoms, the results of the evaluations of record, and his prior work history. She concluded that such had been the case since the filing of his claim. The evaluator also cited another study finding that the acceptable absence rate reported allowed for no more than three percent of the total expected work hours, or slightly over seven days each year, and the need to arrive late or leave early was considered the same as a missed day; and such was beyond the capabilities of the Veteran. She reported that similar findings were reported for time off-task due to concentration issues, and that more than five percent of time-off task for any reason would prevent sustaining competitive work; and the Veteran would likely exceed that amount due to his emotional symptoms impacting his concentration and persistence at a work task. She ended her evaluation with the conclusion that the Veteran had emotional conditions which were severe and the major area of limitations appeared to be mental activity involving sustaining work, which was extremely limiting in the Veteran's case. She opined that the Veteran was totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service-connected bipolar disorder and the record supports such a finding as far back as the date of filing. The Board has considered all of the evidence of record; including the fact that the Veteran is in receipt of disability benefits from the SSA based on, in part, his service-connected bipolar disorder. The Veteran is competent to report what he experiences, as discussed above, as to mood swings, lack of concentration, and difficulty holding down a job, and there is no evidence that he is not credible in this regard. The Veteran's manic and hypomanic periods, depression, hallucinations, suicidal ideas and attempts, irritability with episodes of verbal altercations, anxiety, panic attacks, thought content preoccupation, and reduced motivation have been well-documented during the course of the appeal. The Board considered that the VA examiner, in November 2008, found that the Veteran's mood and current prescription medication regimen, as well as his good concentration, had been stable for three months, and if such remained, it would allow him to function at work; however, he could not be sure if working would worsen bipolar symptoms, as the Veteran had not worked. It appears that the examiner based the conclusion on the Veteran's three-month stability, and such has not remained. It is also significant that in the same examination report, the examiner noted that the Veteran had a brief two-to-three day manic episode three months prior which would have caused problems functioning at work. It remains that the April 2015 private evaluation includes a discussion of the June 2011 VA examiner's findings, discussed above, and does not disagree with them; in fact, the evaluator expands upon the VA examiner's findings and describes a scenario where the Veteran's symptoms preclude him from employment, by causing absenteeism and off-task work problems. Her conclusions are markedly similar to those discussed in the June 2011 VA examination report indicating that the Veteran's distractibility would lead to problems remembering work-like procedures or follow detailed instructions, making work-related decisions, sustaining an ordinary routine without supervision, and focusing on complex tasks; and that the Veteran's intermittent mood swings, short temper and irritability, anhedonia, fatigue, decreased ability to focus on complex tasks and maintain pace and persistence would be problematic without an unreasonable number of and length of rest periods. In sum, the Veteran meets the schedular criteria for TDIU during the entire appellate period, and the Board resolves all doubt in favor of the Veteran, as is required by law, as to whether his service-connected bipolar disorder prevents him from securing and following substantially gainful employment. A TDIU is granted during the entire appellate period. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER During the entire appellate period, entitlement to a TDIU is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs