Citation Nr: 1800658 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 15-15 662 DATE THE ISSUES 1. Entitlement to an initial evaluation in excess of 40 percent for service-connected bipolar affective disorder. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). ORDER An initial evaluation of 70 percent, and no greater, for bipolar disorder is granted. TDIU is granted. FINDINGS OF FACT 1. The service-connected bipolar disorder manifested in some social and occupational impairment, including occasional suicidal thoughts, tangentiality of speech, and near-continuous depression affecting the Veteran's ability to function effectively throughout the period on appeal. 2. The evidence of record demonstrates that the Veteran's service-connected disability prevents him from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of no greater than 70 percent for service-connected bipolar disorder have been met. 38 U.S.C. §§ 1111, 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.304(b), 4.1, 4.2, 4.2, 4.7, 4.10, 4.130, Diagnostic Code 9432 (2017). 2. The criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from November 1956 to January 1957 and June 1971 to June 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in October 2017. The Veteran applied for TDIU in April 2014, which was denied in a November 2014 rating decision and not appealed. However, the Court has held that entitlement to TDIU is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Therefore, as the record reflects some evidence of unemployability, the Board will evaluate whether the Veteran is entitled to a TDIU. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). I. Increased Evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activities, 38 C.F.R. § 4.10. See Schafarth v. Derwinski, 1 Vet. App. 589 (1991). Here, the Veteran was granted service connection for bipolar affective disorder under Diagnostic Code 9432 in a June 2013 rating decision at a rate of 40 percent. This evaluation was premised on a finding that the bipolar disorder pre-existed service, manifesting in symptoms reflecting a 30 percent evaluation, and that the Veteran's service aggravated the bipolar disorder to manifest in symptoms coinciding with a 70 percent evaluation. The 40 percent evaluation assigned therefore represents the degree to which service was found to aggravate the pre-existing bipolar disorder. In the context of this increased evaluation claim, the manner of the grant of service connection is part and parcel of the claim, as the Veteran specifically contested the fact that his bipolar disorder pre-existed service and argues that he is entitled to the full 70 percent evaluation. Therefore, the Board will review whether the disorder pre-existed his military service in order to determine whether any reduction in evaluation should be taken to account for aggravation of a pre-existing psychiatric disorder. A veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by active service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The term "noted" refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). A "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). When no preexisting condition is noted upon examination for entry into service, a veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. To rebut the presumption of soundness under 38 U.S.C. § 1111, there must be clear and unmistakable evidence that (1) a Veteran's disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. Id. The Veteran had two periods of active duty, the first beginning in November 1956. The enlistment examination for this period reflected no psychological or psychiatric defects, infirmities, or disorders. The Veteran did not report any psychiatric issues. The Veteran checked "no" when asked whether, at the time or previously, he had "depression or excessive worry" and "nervous trouble of any sort." The examiner made clinical notation only of a mild flattening of the thoracic curve in the Veteran's spine and an allergy to penicillin, and noted "no serious illnesses." The Board therefore finds that the presumption of soundness attaches to the Veteran's first period of active service with respect to mental health issues, and the burden shifts to VA to rebut the presumption by showing by clear and unmistakable evidence both that the bipolar disorder pre-existed service and that it was not aggravated during service. The Veteran reported for active duty in November 1956. He testified at the October 2017 Board hearing that his superior officer directed him to seek mental health treatment once in service due to feeling overwhelmed in the Drum and Bugle Corps, although there are no service treatment records reflecting this treatment. The first reports of mental health problems are recorded in the Veteran's reported medical history on his January 1957 separation examination. He checked yes for "frequent trouble sleeping," "frequent or terrifying nightmares," "depression or excessive worry," and "nervous trouble of any sort," and reported having been treated for a nervous condition for 1.5 years. The examiner noted "All items checked EPTS [existed prior to service]." However, there are no records in the claims file of the Veteran's reported treatment, and contemporary private treatment records reflecting a diagnosis of a nervous condition or describing the Veteran's symptoms prior to military service. Given that the only evidence of a pre-existing psychiatric disorder is the Veteran's own report of pre-service treatment, the Board finds that there is not clear and unmistakable evidence of a pre-existing disability and VA cannot rebut the presumption of soundness in this first period of active duty service. See 38 C.F.R. § 3.304(b)(1); see also Crowe, 7 Vet. App. at 245. Likewise, for the Veteran's second period of active duty service, he underwent a July 1970 examination in conjunction with his application to become a commissioned officer and work as a nurse in the Air Force. In this examination, there were no reports of psychiatric issues or "personality deviations" on the report of medical history, and the examiner only made a clinical notation of an issue with the Veteran's feet. The presumption of soundness also attaches in this second period of active duty, as again there are no notations of psychiatric issues on the entrance examination. The burden again shifts to VA to rebut the presumption by showing by clear and unmistakable evidence both that the bipolar disorder pre-existed this second period of service and that it was not aggravated during service. The Veteran reported for active duty for his second period of service in June 1971. There are no treatment records reflecting symptoms of, diagnosis of, or treatment for a psychiatric disorder or mental health complaints prior to this second period of military service. There is a service treatment record diagnosing "situational anxiety reaction of adulthood" in March 1972, which gave no description of the Veteran's symptoms or complaints. The Veteran's April 1973 separation examination made note of this treatment, noting that he received two months of outpatient psychiatric counseling, and the problem resolved without sequelae. Given that there is no evidence of a pre-existing condition, other than a history provided during his first period of military service that would place onset of his mental health complaints prior to the first period of military service, the Board finds VA cannot show by clear and unmistakable evidence that the Veteran had any psychiatric disability prior to his second period of military service. Moreover, given the documented complaints of psychiatric symptoms during the second period of military service, the Board also finds VA cannot show by clear and unmistakable evidence that the Veteran's disability was not aggravated during the second period of military service. Accordingly, the Board finds that VA cannot rebut the presumption of soundness in this second period of active duty service either. See 38 C.F.R. § 3.304(b)(1); see also Crowe, 7 Vet. App. at 245. Because the presumption of soundness attached and was not rebutted as to psychiatric disorders, the grant of service connection is on a direct basis. The Veteran's in-service psychiatric counseling, previously taken as evidence of service aggravating a pre-existing psychiatric disorder, indicates an in-service incurrence of the current disability. Therefore, the salient question in this case is the current evaluation of the service-connected bipolar disorder, and not to what extent any pre-existing disorder was aggravated during service. That is, a reduction in the Veteran's evaluation is not necessary based on aggravation, as the service connection is on a direct basis. Diagnostic Code 9432 uses the General Rating Formula for Mental Disorders for rating criteria. 38 C.F.R. § 4.130. Under the general formula, a 50 percent disability rating is warranted when 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; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9432. A 70 percent rating is warranted where there is 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 worklike setting); or inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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. The United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, "serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas;" that is, "the regulation . . . requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vasquez-Claudio, 713 F.3d at 117-18. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission." 38 C.F.R. § 4.126(a). The Board must also "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 examination." Id. Although Global Assessment of Functioning (GAF) scale scores, where available, are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). An assigned GAF score, like an examiner's assessment of the severity of a condition, is not dispositive of the percentage rating issue; rather, it must be considered in light of the actual symptoms of a psychiatric disorder, which provide the primary basis for the evaluation assigned. See 38 C.F.R. § 4.126(a). Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered but is not determinative of the VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126; VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995). The Veteran underwent a VA mental health examination in May 2013, at which the examiner diagnosed bipolar affective disorder. The examiner opined that the bipolar disorder caused occupational and social impairment with reduced reliability and productivity. The Veteran was alert and oriented, and denied suicidal and homicidal ideations. The examiner noted symptoms of depressed mood; anxiety; panic attacks occurring weekly or less often; circumstantial, circumlocutory, or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; and difficulty in establishing and maintaining effective work and social relationships. The examiner further noted mood instability with irritability, loose associations, and fast thoughts. Also in May 2013, a VA treatment record reflects mental health treatment. The Veteran reported having been diagnosed with attention deficit disorder (ADD), which is confirmed by a private treatment record in the record. The Veteran reported that his family is very supportive. He denied having auditory, visual, or tactile hallucinations. The Veteran was alert and oriented, neatly groomed, and denied suicidal and homicidal ideations. The practitioner noted tangentiality in the Veteran's thought content and process, and that the Veteran was hypomanic and a "difficult historian." An April 2014 VA mental health treatment record reflects symptoms of depressed mood, hopelessness, crying spells, worthlessness, anhedonia, isolation, and helplessness since service. The Veteran also reported significant anxiety, feeling nervous, difficulty relaxing, and irritability. The Veteran was alert and oriented, neatly groomed, and denied any plans to act on suicidal thoughts he had. It was noted that he has a good relationship with his wife of 49 years, three daughters and 14 grandchildren. There was no indication of psychosis or mania in the Veteran's thought content and process, and no perceptual distortions were noted. The Veteran reported that his prescribed medication keeps him calm and prevents him from "being nasty." An October 2014 letter from the Veteran's private physician indicates treatment for thought disorder, ADD, and bipolar disorder. The physician noted occasional neglected personal hygiene and attire, and reports of frequently becoming geographically challenged with familiar and unfamiliar locations, requiring his wife to redirect him. The Board notes that there are no further records of mental health treatment during the period on appeal. No GAF scores were noted in the record. Further, the April 2014 VA treatment record notes the Veteran had engaged in psychotherapy "over a dozen times," but these records are not in the claims file, and that the Veteran declined further treatment through VA telehealth as he was unhappy with the services rendered. After consideration of the above evidence, the Board finds that the preponderance of the evidence is against an evaluation in excess of 70 percent for bipolar disorder for the entirety of the appeals period. The Veteran's symptoms during this period indicate some social and occupational impairment, as he displayed tangentiality, loose associations, fast thoughts, and significant anxiety. He reported suicidal ideation at one treatment visit, and denied it at others. He consistently displayed symptoms of depression. However, the Veteran did display good relationships with his family, did not experience hallucinations or delusions, and was consistently oriented to time and place in the treatment records. The Veteran's private physician noted poor hygiene in the October 2014 letter, although the Veteran was always neatly groomed at his visits with VA physicians. There is no evidence that the Veteran was unable to perform the activities of daily living or that he had difficulty with memory loss as profound as forgetting the names of close relatives or his own name or history, although the Veteran's private physician noted complaints of becoming geographically challenged and requiring help. Accordingly, the Veteran's symptoms do not rise to the level of total occupational and social impairment required for a 100 percent evaluation for bipolar disorder, the next highest evaluation in the rating criteria. Thus, the Board finds a rating in excess of 70 percent is not warranted. II. TDIU VA will grant entitlement to TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that a veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). As the above decision regarding the service-connected bipolar disorder increased the Veteran's rating to 70 percent, the Veteran is schedularly qualified for TDIU effective beginning June 26, 2012, which is the period on appeal for the TDIU claimed raised above under Rice. See 22 Vet. App. at 454-55. Here, the Veteran submitted a TDIU application in October 2014, claiming that his service-connected bipolar disorder prevents him from securing or following a substantially gainful occupation. The record shows that he is trained as a nurse anesthetist. He listed his last eight years of employment as working in nursing homes as a nurse. The Veteran's employer reported that the Veteran worked 24 hours per week as a nurse until December 2009. The employer stated that the Veteran resigned from the position, but did not elaborate or indicate the nature of the resignation. The Veteran's private physician wrote a letter in October 2014, stating that he recommended the Veteran stop working due to his difficulty functioning in a work environment. These difficulties arose from the Veteran's diagnoses of thought disorder, ADD, and bipolar disorder. The physician noted complaints of forgetfulness and confusion on the job, particularly mixing up patients, forgetting drug regiments and other details, and committing medication errors. The Veteran further reported to the physician that his difficulty with thinking and communication frequently provoked anger toward patients and coworkers. The physician also noted the Veteran's reports that he feared harming patients and that his coworkers and supervisors often brought his inadequacies to his attention. After consideration of the available evidence, on the specific facts of this case, the Board finds that a TDIU is warranted. After resolving any reasonable benefit of the doubt in favor of the Veteran, the Board finds the Veteran's service-connected psychiatric disability precludes substantially gainful employment. He is trained as and has worked as a nurse. His private treatment provider has documented that he recommends the Veteran stop working as a nurse because his psychiatric symptoms create a credible fear that he might harm patients by mixing them up or forgetting their medications. Further, the Veteran has credibly testified that he has committed errors in administering medications or treatment to patients. Thus, the Board finds after resolving any benefit of the doubt that the Veteran's service-connected psychiatric disability precludes obtaining and maintaining substantially gainful employment. Accordingly, entitlement to a TDIU is warranted. ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD: K. Josey, Associate Counsel Copy mailed to: Veterans of Foreign Wars of the United States Department of Veterans Affairs