Citation Nr: 1804471 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 12-34 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial rating higher than 50 percent prior to September 10, 2012, and to a rating higher than 70 percent from September 10, 2012, for bipolar disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 11, 2012. REPRESENTATION Appellant represented by: Kenneth Carpenter, Attorney at Law ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1994 to May 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona which granted service connection for bipolar disorder, evaluating it as 30 percent disabling. In February 2011, the Veteran filed his notice of disagreement with the initial evaluation of 30 percent, was issued a statement of the case in October 2012, and in December 2012 perfected his appeal to the Board. In October 2012, the RO granted a rating increase for the Veteran's bipolar disorder, evaluating it as 50 percent disabling prior to September 10, 2012, and 70 percent disabling thereafter. This created a staged rating as indicated on the title page. As the Veteran has not expressed satisfaction with the assigned ratings, the issue remains before the Board. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). The RO also denied entitlement to TDIU. In September 2014, the RO granted the Veteran a TDIU effective October 11, 2012. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the symptoms and overall impairment caused by the Veteran's bipolar disorder have more nearly approximated total occupational and social impairment for the entire period on appeal. 2. In light of the Board's decision, the Veteran is rated 100 percent disabling for bipolar disorder throughout the appeal period. 3. As a total (100 percent) rating for bipolar disorder is being awarded for the entire claim period, leaving no part of the claim period where the schedular rating is less than total, the issue of entitlement to a TDIU is rendered moot for the entire claim period. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for a rating of 100 percent for bipolar disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9432 (2017). 2. The question of whether the Veteran is entitled to a TDIU is rendered moot by the grant of a total (100 percent) rating for bipolar disorder during the entire claim period, leaving no question of law or fact to decide regarding the TDIU issue. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.14, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Bipolar disorder Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Bipolar disorder is listed in the Rating Schedule in 38 C.F.R. § 4.130, Diagnostic Code 9432, but all psychiatric disorders are rated under the General Rating Formula for Mental Disorders. Under this formula, a 70 percent evaluation 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 work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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, own occupation, or own name. Id. Symptoms listed in the VA's 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. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words "such as" that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held "that 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." Id. at 117. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. The nomenclature employed in the rating formula is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-V). See 38 C.F.R. § 4.130. Per applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126 (a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, not solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126 (b). For purposes of considering the evidence in connection with bipolar disorder, the Board notes that the Global Assessment of Functioning (GAF) scale is a scale from 0 to 100, reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) ("DSM-IV") (100 representing superior functioning in a wide range of activities and no psychiatric symptoms). See also 38 C.F.R. §§ 4.125, 4.126, 4.130. In this regard, the Board acknowledges that VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to "DSM-IV," AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994). The amendments replace those references with references to the recently updated "DSM-5," and examinations conducted pursuant to the DSM-5 do not include GAF scores. VA has amended 38 C.F.R. § 4.125(a) to require the diagnosis to conform to DSM-5, but this amendment does not apply to cases that were certified to the Board prior to August 4, 2014. This case was certified to the Board on December 2, 2017. A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. A GAF of 41-50 denotes serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning. A GAF of 51-60 denotes moderate symptoms (e.g. flat affect, circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). A GAF of 61-70 denotes 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. August 2009 treatment records indicate that the Veteran suffered from a preoccupation with death; self-harm; suicidal ideation, but denied any plan to commit suicide; feelings of hopelessness. A July 2010 VA examination report noted that the Veteran suffered from a cycle of mania and depression which has been controlled by medication. The Veteran described hearing and sometimes seeing "fairies" when manic, and stated that depression is his more dominant mood and results in low energy, depressed mood, anhedonia, lethargy, lack of satisfaction, and fantasies of killing himself. The Veteran also described ongoing panic attacks which occur regularly and resulted in him being placed on short-term disability at work. The panic attacks result in his heart racing, shortness of breath, tunnel vision, and feeling flushed. The examiner reported that during the examination the Veteran's speech was normal; thought process was linear and concrete; there were no thoughts, intentions or plans to harm himself or others although he stated when his depression grows suicidal thoughts become more prominent; there was no evidence of hallucinations, delusional, or paranoid thoughts; his judgment was appropriate; and impulse control was adequate. A May 2012 Social Security Administration decision concluded that the Veteran is capable of performing a full range of work at all exertional levels, but should have minimal contact with strangers and no contact with the general public and only necessary contact with supervisors and coworkers. A May 2012 social work note indicated that the Veteran did not express suicidal ideation or homicidal ideation, his motivation for treatment was high, and his GAF score was 55. A June 2012 psychiatry progress note indicated that the Veteran's mood was hopeless, lonely, empty and suicidal, but Veteran denied suicidal ideation, intent or plans. The psychiatrist noted a GAF score of 39. A September 2012 disability benefits questionnaire (DBQ) report indicated that the Veteran suffered from occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported having last worked in June 2010 stating he could not work because of "fear" as well as a lot of anxiety in his work environments. The Veteran stated he "just wanted to die" when he was working and that the idea of having to return to work caused a great amount of anxiety. The examiner opined that the Veteran is capable of managing his financial affairs, but noted that the Veteran would be considered moderately limited in his ability to remember locations, and work-like procedures would be somewhat difficult. Regarding sustained concentration and persistence, his ability would be moderately limited as well. In regard to social interaction and ability to adapt and respond to changes in the work setting, the examiner opined that the Veteran's ability would be markedly limited. A September 2012 social worker report indicated that the Veteran's mental disorders interfere with his ability to work or function in general. The report noted that the Veteran was only able to sustain affective stability for short periods of time and with extensive support from his spouse. The social worker noted that while the Veteran has no difficulty learning and remembering new information, he has significant problems implementing newly learned information or taking action on time, even when such action would benefit him. The social worker also noted that the Veteran has a difficult time maintaining affective stability in public places. Finally, the social worker stated in her report that the Veteran is unable to maintain regular attendance due to his mental disorder, and concluded it is unlikely that the Veteran would be able to successfully deal with the ongoing demands for problem solving, decision-making and interpersonal relationships in a work setting. An October 2012 private psychologist assessment noted that the Veteran has a hard time with stress and anxiety, and is incapable of maintaining a set schedule or cope with high levels of stress. The psychologist noted that the Veteran needed reminders to shave, bathe, get haircuts, and take medication. The Veteran could not go out alone, and could only accomplish chores with encouragement and by taking long breaks in between. While the Veteran spends time with family, the assessment indicated that he does not get along with anyone else. The psychologist noted that the Veteran does not trust authority figures, has difficulty completing tasks, following instructions, and adapting to changes in his routine. A January 2013 assessment from a private psychologist noted that the Veteran was incapable of handling his financial matters independently, and within a work setting due to anxiety and panic attacks is likely to struggle to remember simple instructions. The psychologist opined that due to poor coping skills, poor impulse control, and poor decision making, the Veteran would struggle in responding appropriately to supervision. In January 2013, the Veteran provided a statement which reported that he was unable to obtain and retain a substantially gainful occupation due to his bipolar disorder. The Veteran stated if he went back to work, he would become suicidal again. He also reported that he primarily stays at home and does not go anywhere without his wife. His wife also stated that his bipolar disorder severely affects his occupational and social functioning, and they have to limit social interaction and maintain a low stress life style. She stated the Veteran is not able to work because of his inability to handle stress and frequent bouts of depression, and mentioned that when manic, the Veteran will talk really loudly and fast, and say inappropriate, odd, or insulting things that he would not normally say. A March 2013 psychiatrist report stated that when the Veteran's wife is not around, he feels disoriented, discouraged, and his suicidal ideation increases. The psychiatrist noted that while discussing leaving the house alone, the Veteran started to have a panic attack. The psychiatrist reported that when the Veteran works, he becomes depressed to the point where he cannot go to work and either loses his job or quits. The Board finds that the evidence is at least evenly balanced as to whether the Veteran's disability picture most nearly approximate the criteria for a 100 percent disability rating for the entire appeal period. Treatment records report GAF scores between 39 and 55, indicating some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood; and moderate symptoms (e.g. flat affect, circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning. The Veteran and his wife's lay statements indicate that he suffers severe anxiety and panic attacks; is incapable of leaving the home by himself; limits social interaction; and is unable to maintain employment due to his bipolar disorder. Additionally, the Veteran's symptoms over the appeal period have included those listed in the 70 and 100 percent criteria for mental health disorders including: suicidal ideation; near-continuous panic or depression affecting the ability to function independently; persistent danger of hurting self or others; and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). While the May 2012 Social Security Administration decision concluded that the Veteran is capable of performing a full range of work, as argued by the Veteran's attorney in the December 2012 substantive appeal, other medical opinion indicate that the Veteran is unable to work due to his bipolar disorder. Based on the above evidence, the Board finds that VA examination reports, private therapist and psychiatry reports, and the Veteran and his wife's statements provide evidence that the symptoms and overall impairment caused by the Veteran's bipolar disorder more nearly approximate the criteria for a 100 percent rating. Entitlement to a rating of 100 percent is warranted for the entire appeal period. 38 C.F.R. §4.7. II. TDIU The Veteran contends that during the claim period he has been unable to work due to his service connected bipolar disorder. As noted, TDIU was granted from October 11, 2012. The issue of entitlement to a TDIU is a potential part of an initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Given that there has been evidence of unemployability due to the Veteran's bipolar disorder, the issue of entitlement to a TDIU has been raised as part and parcel of the claim for a higher initial rating for bipolar disorder. Given that service connection is in effect for bipolar disorder from January 2010, the issue of entitlement to a TDIU prior to a TDIU is considered to have been part of this appeal. TDIU is provided where the combined schedular rating for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a) (2017). A TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. Locklear v. Shinseki, 24 Vet. App. 311, 314, n. 2 (2011) (citing Herlehy v. Principi, 15 Vet.App. 33, 35 (2001)). An exception to this rule is that a separate award at the housebound rate or a TDIU predicated on a single disability (perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more may warrant payment of special monthly compensation (SMC) under 38 U.S.C. § 1114 (s). See Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). In the instant case, the Board has assigned a 100 percent disability rating for the Veteran's service-connected bipolar disorder for the entirety of the appellate period and service connection is not in effect for any other disability. Given that the Veteran is service connected only for bipolar disorder, TDIU cannot contribute to the Veteran's eligibility for SMC at the (s) level. If the Veteran were to be awarded a TDIU ("total" rating) based on service-connected bipolar disorder rendering him unemployable for any time during the rating period, it would impermissibly result in the same disability being "counted twice" in the assignment of a total rating, as it would be rating the "total occupational impairment" twice. See generally 38 C.F.R. § 4.14. Thus, the Board finds the issue of entitlement to a TDIU must be dismissed as moot. ORDER Entitlement to a 100 percent disability rating for bipolar disorder is granted for the entire period on appeal, subject to the laws and regulations governing payment of monetary benefits. The appeal as to the issue of entitlement to a TDIU prior to October 11, 2012, is dismissed. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs