Citation Nr: 18146755 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 16-40 555A DATE: November 1, 2018 ORDER Entitlement to an increased disability rating in excess of 50 percent from March 29, 2013 is denied. Entitlement to a total disability rating by reason of individual unemployability (TDIU), due to service-connected disability is denied. FINDINGS OF FACT 1. From March 29, 2013, the Veteran’s bipolar disorder was manifested by symptoms of frequency, severity, or duration most similar to occupational and social impairment with reduced reliability and productivity. 2. For the period on appeal, the Veteran does not meet the schedular criteria for TDIU and is not precluded from participating in substantially gainful employment due to his service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for bipolar disorder for the period from March 29, 2013, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9432 (2018). 2. For the period on appeal, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1984 to May 1985. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Initially, the Board notes that the Veteran filed a TDIU claim through VA form 21-8940. Through his attorney, the Veteran indicated that this is not a new claim for benefits, but rather part of the Veteran’s increased rating claim on appeal. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As such, entitlement to a TDIU will be addressed below. Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The record reflects that VA’s duty to notify was satisfied by a letter dated in July 2013. There is no indication in this record of a failure to notify. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2018); see also Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). With regard to the duty to assist, all relevant, identified, and available evidence has been obtained. The Veteran was provided VA examinations, the reports of which are adequate for the purpose of evaluating the proper disability rating. The Veteran has not referred to any additional, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 1. Entitlement to an increased disability rating in excess of 50 percent from March 29, 2013 Disability ratings are determined by applying the criteria set forth in 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 ratings 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. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA shall assign a rating 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. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). A 50 percent evaluation is warranted if the evidence establishes 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; and difficulty in establishing and maintaining effective work or social relationships. 38 C.F.R. § 4.130. 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for 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 criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, the Veteran must demonstrate the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated “DSM-5.” As the Veteran’s claim was certified to the Board after August 4, 2014, the DSM-5 is applicable to this case. According to the DSM-5, clinicians do not typically assess Global Assessment Functioning (GAF) scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court further addressed the value of GAF scores. The Court noted that although GAF scores were designed to help quantify and summarize the severity of symptoms associated with metal disorders, the DSM-5 eliminated GAF scores because of their “conceptual lack of clarity” and “questionable psychometrics in routine practice.” DSM-5 at 16. The Court further explained that although it is true that examiners no longer use these scores, an adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness. Any reliance on evidence that expert consensus has determined to be unreliable would be impossible to justify with an adequate statement of reasons or bases. The Veteran is currently assigned a 50 percent disability rating, effective May 17, 2001, for bipolar disorder under Diagnostic Code (DC) 9432. VA medical treatment records indicate that the Veteran’s bipolar disorder was well-managed on medication. The Veteran regularly reported stable moods, without mania, delusions, or depression, and compliance with his medications. The Veteran underwent a VA examination in January 2014. The examiner noted that, due to bipolar disorder, the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms were controlled by medication. The Veteran reported symptoms of depressed mood and chronic sleep impairment. He indicated that he saw his psychiatrist once every six months, his medication kept him regulated, his last manic episode was approximately one year prior, and his last hospitalization was 15 or 16 years prior. The Veteran indicated that he lived with his wife and their relationship was “very good.” He noted that he was not that close with his children from his prior marriage. The Veteran reported that he mainly socialized with his family but he occasionally talked to friends from high school. He indicated that he got along well with people but did not enjoy socializing. The Veteran also reported that he had worked as a fish cutter for 12 years, until 2012 when he quit because of back problems. The Veteran indicated that he performed well at his job and got along well with his co-workers and supervisor, noting that he kept in contact with his supervisor. The examination notes that the Veteran was clean, casually and appropriately dressed, and able to maintain personal hygiene. The examiner also noted that the Veteran’s impulse control was good and he had not had any violent episodes. In August 2016, the Veteran was afforded another VA examination. The Veteran received the diagnosis of bipolar I disorder, moderate, with his most recent episode involving depression. The Veteran reported symptoms of depressed mood, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, inability to establish and maintain effective relationships and impaired impulse control. The examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported he lived with his wife of 17 years and had a close relationship with his mother and his siblings. He indicated that he went to the movies with his wife, was involved in community functions, and occasionally traveled on small vacations. The Veteran reported that for the last two years, he worked part time as a fish cutter for a seafood establishment. He noted that he worked approximately 30 hours a week and had a good boss. The examiner noted that the Veteran was neatly and cleanly dressed and his mood was stable. The Veteran reported that his appetite, energy and sleep were good. After review of the record, the Board finds that a rating higher than 50 percent is not warranted for the period from March 29, 2013. The VA examinations and treatment records do not indicate the Veteran experiences occupational and social impairment with deficiencies in most areas, as contemplated by a 70 percent rating. The Veteran has not demonstrated suicidal ideation, neglect of personal appearance or hygiene, problems with speech, irritability or violence, or near-continuous depression affecting his ability to function independently, appropriately or effectively. The evidence indicates that the Veteran’s mood was stable, consistently denying mania and delusions, and his hygiene was good. The record further reflects that the Veteran had close relationships with his family and maintained friendships. While the record indicates that the Veteran experienced depressed moods, difficulty sleeping, and some mild memory loss, these symptoms have been compensated under a 50 percent rating. Therefore, the Board finds that a rating in excess of 50 percent for the Veteran’s service-connected bipolar disorder is not warranted for the period from March 29, 2013. 38 C.F.R. § 4.130, DC 9432. 2. Entitlement to a TDIU Benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, one disability must be rated at 40 percent or more, and there must be sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In addition to the foregoing, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. Id. Marginal employment is not considered substantially gainful employment. Id. A total disability rating may also be assigned pursuant to the procedures set forth in 38 C.F.R. § 4.16(b) for veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). For the entire period on appeal, the Veteran was in receipt of a 50 percent disability rating for bipolar disorder, and therefore, the Veteran does not meet the minimal schedular criteria for a TDIU at any time during the appeal period. For the entire period on appeal, the Veteran’s only service-connected disability was bipolar disorder, for which he was in receipt of a 50 percent disability rating. However, a total rating on an extraschedular basis, may nonetheless be granted in exceptional cases (and pursuant to specifically prescribed procedures) when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Thus, consideration of whether the Veteran is, in fact, unemployable due to service-connected disabilities, is necessary in this case. The Veteran contends that he is only able to maintain his currently employment because his employer provides accommodations. Specifically, the Veteran asserts that if he begins to fall behind in his work, his employer will assign another employee to help complete his tasks, and he is permitted to take breaks or time off as needed due to his psychiatric symptoms. The Veteran’s VA form 21-8940 indicates that he currently works 35 hours a week as a fish cutter. He has worked with his current employer since August 2015, and his annual income is approximately $38,000. The Veteran reported that he lost one to two days a month of work due to his disability. His prior position was also as a fish cutter, in which he was employed from April 2001 to January 2013. The Veteran reported that he worked 40 hours a week in that position until April 2012, at which time his hours were reduced to 15 to 20 hours a week. He indicated that he lost one day a month of work due to his disability. Although the Veteran did not indicate in his TDIU application why his hours were reduced or his employment ended, during his January 2014 VA examination, he reported that he left this job due to problems with his back. The Board finds that the Veteran’s current employment does not constitute protected employment. The Board is cognizant of Cantrell v. Shulkin, 28 Vet. App. 382 (2017); however, the accommodations that the Veteran receives in this case do not rise to the level of protected employment. It is longstanding VA policy that a protected employment environment is limited to a family business or sheltered workshop. See 38 C.F.R. 4.16(a). While the Veteran asserts that his current employment is a protected environment due to permitted breaks throughout the day as needed and receiving help when he falls behind in his work, there is no indication in the record as to how often the Veteran utilizes these accommodations or whether these accommodations exceed those typically afforded to any other employee. The record indicates that the Veteran’s psychological symptoms are stable and well-managed. As previously indicated, the Veteran’s medical treatment records note that the Veteran’s psychiatric disability remains generally stable and he is compliant with his medications, which the Veteran indicated kept him “regulated.” During the Veteran’s period of unemployment between 2013 and 2015, the record indicates that, in May 2013, the Veteran’s treating psychiatrist noted that the Veteran’s mental health appeared stable. The record since that time does not indicate any acute symptoms or episodes which would render the Veteran unable to work. In addition, while the Veteran also reported that his employer encourages him to take time off work as needed for his mental health, the Veteran noted that he only lost one to two days a month due to his disability, further supporting the determination that the Veteran’s disability is not so severe as to prevent the Veteran from maintaining substantial gainful employment. Moreover, the Veteran reported that his current boss is “good,” and there is no indication in the record of any conflicts at work or that the Veteran has not been able to satisfactorily perform his job. (Continued on the next page)   Therefore, after a thorough review of the record, the Board finds that referral for extraschedular consideration for entitlement to a TDIU for the period from March 29, 2013, is not warranted. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hite, Associate Counsel