Citation Nr: 1609066 Decision Date: 03/07/16 Archive Date: 03/15/16 DOCKET NO. 10-31 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to a rating higher than 10 percent for service-connected major depressive disorder with bipolar disorder. 2. Whether there was clear and unmistakable error (CUE) in a February 2008 rating decision which denied service connection for chronic obstructive pulmonary disease (claimed as asthma). REPRESENTATION Appellant represented by: N. Albert Bacharach, Jr., Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service from April 1996 to April 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a January 2009 rating decision, the RO continued the assigned 10 percent rating for major depressive disorder. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in April 2013. A copy of the hearing transcript is of record. The Board then remanded the claim for further development in November 2013. After undertaking the requested development, the RO promulgated a September 2014 rating decision which granted service connection for bipolar disorder, to be evaluated with major depressive disorder. The 10 percent rating for both conditions was continued. Separately, in an August 2014 rating decision, the RO found that there was no CUE in a February 2008 rating decision which denied service connection for COPD. The issue of whether there was CUE in a February 2008 rating decision which denied service connection for COPD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT During the appeal period, the Veteran's major depressive disorder with bipolar disorder has been manifested by suicidal ideation and a likely suicide attempt, persistent hallucinations, and multiple hospitalizations. CONCLUSION OF LAW The criteria for a 100 percent rating for major depressive disorder with bipolar disorder have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9434 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide claimants in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. In this case, however, the Board is granting in full the benefit sought on appeal. Therefore, the Board need not discuss whether there has been compliance with the VCAA because any noncompliance ultimately amounted to no more than harmless error. 38 C.F.R. § 20.1102 (2015). See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009). II. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2015). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran is currently assigned a 10 percent rating for his major depressive disorder and bipolar disorder under Diagnostic Code (DC 9434), which is part of the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under this formula, a 30 percent rating is assigned for 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). Id. A 50 percent rating is assigned for 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; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is assigned 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 that is 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned 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; and memory loss for names of close relatives, or for the Veteran's own occupation or name. Id. The criteria listed in the General Rating Formula for Mental Disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). In other words, the rating criteria are inherently broad in terms of symptoms that may be associated with a service-connected psychiatric disability. Notably, the evidence in this case reflects a significant history of drug and alcohol abuse, in addition to the service-connected psychiatric disability. Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 91, prohibits, effective for claims filed after October 31, 1990, payment of compensation for disability that is a result of a veteran's alcohol or drug abuse. There is an exception to this general rule, however. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that there can be service connection for compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). But the Federal Circuit Court indicated that Veterans may only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Id., at 1381. The Federal Circuit Court further held that such compensation would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a Veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. Indeed, this case was remanded by the Board in November 2013, in part, to obtain a medical opinion analyzing the relationship, if any, between the Veteran's drug and alcohol abuse and his service-connected psychiatric disability. In response, a July 2014 VA examiner stated that it would be resorting to mere speculation to attribute the Veteran's different symptoms to specific diagnoses because chronic substance abuse can produce or exacerbate symptoms indicative of mood or bipolar disorders. The Board notes that, in such instances, when it is unknown whether symptoms are associated with a service-connected versus nonservice-connected condition, the law requires that such symptoms be considered part of the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Therefore, the Board's discussion of the appropriate rating to be assigned contemplates all of the Veteran's relevant symptoms demonstrated during the appeal period. Based on the evidence, the Board finds that a 100 percent rating is warranted for the entire appeal period. During this period, the Veteran had inpatient hospitalizations on several occasions. In November 2007, he was admitted for drug use and, during the course of his treatment, he decompensated. He was hospitalized pursuant to the Baker Act. The Florida Mental Health Act or "Baker Act" provides for involuntary inpatient placement of a person who is mentally ill and, because of his or her mental illness, has refused voluntary placement for treatment after sufficient and conscientious explanation and disclosure of the purpose of placement for treatment or is unable to determine for himself or herself whether placement is necessary; and, he or she is manifestly incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, is likely to suffer from neglect or refuse to care for himself or herself, and such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; or there is substantial likelihood that in the near future he or she will inflict serious bodily harm on himself or herself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm; and all available less restrictive treatment alternatives which would offer an opportunity for improvement of his or her condition have been judged to be inappropriate. Fla. Stat. §§ Vet. App. 394.451, 394.467.] He was again hospitalized pursuant to the Baker Act in June 2008. According to his wife, he had expressed a desire to kill himself and was admitted for an apparent overdose. VA records stated that, given the Veteran's vague description of the event combined with his steadily worsening depressive symptoms, his overdose was highly suspicious as being a suicide attempt. The Veteran was voluntarily readmitted in July 2008 and August 2008 after reporting command hallucinations telling him to hang himself. In November 2009, the Veteran was again admitted for inpatient psychiatric treatment for a period of about 10 days. He again demonstrated psychotic features as evidenced by command auditory hallucinations telling him to kill himself. In September 2013, the Veteran was again hospitalized for a period of one week secondary to symptoms of suicidal ideation and hearing voices, including voices telling him to light himself on fire. He was placed on the treating facility's list of patients with a high risk of suicide. In March 2014, the Veteran was admitted for cocaine detoxification. He reported increasing voices instructing him to harm himself. Additional records from June 2014 noted that the Veteran remained at a high risk for suicide. He still heard voices, and had occasional suicidal ideation. In addition to these six hospitalizations, the evidence reflects that the Veteran regularly experienced symptoms indicating a marked degree of psychological impairment. Private records from November 2008 and VA records from January 2009 reflect suicidal ideation and passive thoughts of death, respectively. VA records from January 2012 show the Veteran reported feeling suicidal one month earlier. In May 2013, the Veteran reported hearing voices at night. Additional records form October 2013 show the Veteran reported having suicidal thoughts about once per week, and admitted to hearing noises, such as a knock on the door or a low voice calling his name. In VA records from November 2013 and December 2013, the Veteran endorsed passive or occasional suicidal ideation, and reported that he heard his name being called when nobody is there. He also reported paranoid ideations that someone is following him to his house. VA records dated April 2014 through May 2014 show the Veteran continued to hear "mumbling" voices and experience thoughts of suicide or self-harm. Records from May 2014 specifically noted that the Veteran appeared to be responding to internal stimuli. The Veteran's multiple hospitalizations, ongoing suicidal ideation with prior history of a likely suicide attempt, and hallucination symptoms span much of the appeal period, and are consistent with the 100 percent schedular rating, which contemplates persistent hallucinations and a persistent danger of hurting self. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration). The Board has also considered whether the Veteran's condition warrants consideration of an extraschedular rating under 38 C.F.R. § 3.321. However, in light of the 100 percent rating being assigned, the issue of entitlement to an extraschedular evaluation is moot. ORDER A 100 percent rating for major depressive disorder with bipolar disorder is granted. REMAND As noted above, in an August 2014 rating decision, the RO found that there was no CUE in a February 2008 rating decision which denied service connection for COPD. In September 2014, the Veteran filed a notice of disagreement (NOD) with this rating decision. To date, no statement of the case (SOC) has been promulgated in response to the Veteran's NOD. The appropriate disposition in this circumstance is to remand the claim. Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran will have the opportunity, in response, to file a timely substantive appeal (VA Form 9 or equivalent statement) to complete the steps necessary to perfect the appeal of this other claim to the Board. 38 C.F.R. § 20.200. Accordingly, the case is REMANDED for the following action: Provide the Veteran and his representative with an SOC for the issue of whether there was CUE in a February 2008 rating decision which denied service connection for COPD. Advise them that they will need to file a timely substantive appeal (VA Form 9 or equivalent statement) in response to this SOC to complete the steps necessary to perfect an appeal of this additional claim to the Board. Only if he perfects his appeal of this claim should it be returned to the Board for further appellate consideration. 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 2014). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs