Citation Nr: 18150799 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 18-12 417 DATE: November 16, 2018 ORDER Entitlement to an initial disability rating in excess of 50 percent for bipolar disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities is denied FINDINGS OF FACT 1. The Veteran’s bipolar disorder is manifest by symptoms of frequency, severity, or duration most similar to occupational and social impairment with reduced reliability and productivity. 2. The Veteran does not meet the schedular criteria for TDIU and the criteria for referral on an extra-schedular basis are not met. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 50 percent for bipolar disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9432. 2. 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to an initial disability rating in excess of 50 percent for bipolar disorder 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 2, 2008, for bipolar disorder under Diagnostic Code (DC) 9432. VA medical treatment records indicate that the Veteran’s bipolar disorder was managed on medication, except for a period between late 2013 and early 2014 when he had run out of his prescription medication, and was admitted to the hospital after being found “severely deconditioned and unkempt in his condo by his neighbors.” The Veteran reported that he had anhedonia, decreased energy, decreased concentration and difficulty with sleep. He also reported an increase in depressive symptoms since he stopped taking his medication. He resumed taking his medication since the hospital admission and his mood improved. The Board acknowledges the April 2009 psychiatry consultation note that shows the Veteran experienced confusion, polyuria, and polydipsia, and had intermittent hallucinations of bugs and lizards. The Board notes that the Veteran was taking Lithium, which has side effects of confusion and hallucinations; however, the physician changed the prescription from Lithium to another medication. Similarly, in February 2009, the Veteran was admitted for visual hallucinations. The physician noted that the Veteran’s Lithium levels were elevated. The Veteran’s mood was mildly anxious, his memory was intact, and he denied suicidal nad homicidal ideation. There was no evidence of thought disorder and his insight and judgment were fair. The physician noted that the Veteran lived with his girlfriend. The Veteran denied current hallucinations; suicidal and homicidal ideations; sleep problems; racing thoughts; delusions; hypomania; and mood swings. The physician noted that the Veteran’s lithium levels were elevated, and indicated that the Veteran’s memory was intact. The Veteran underwent a VA examination in June 2012. He reported that he lived with his girlfriend of 17 years. He indicated that he played in bands throughout the area and had worked as a taxi driver. The examiner noted that the Veteran had occupational and social impairment with reduced reliability and productivity due to anxiety, chronic sleep impairment, mild memory loss, circumstantial, circumlocutory or stereotyped speech, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and impaired impulse control. The Veteran underwent another VA examination in March 2017. The Veteran reported that his mood symptoms continue to impact daily functioning despite consistent engagement in medication management. He indicated that his 17-year relationship with his girlfriend had ended in 2013. He also indicated that he has a son and has a good relationship with him. He reported that he goes to the bar twice per week with his friends for socialization, “gets out of the house daily and will swim or work out” and enjoys going to the library. The VA examiner observed the Veteran as being “dressed quite nicely.” He indicated that the Veteran was rather anxious in mood and affect; hyperverbal and circumstantial requiring frequent direction. The Veteran was oriented x3 and he denied suicidal and homicidal ideation. The examiner noted 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. He indicated that the Veteran exhibited the following symptoms: depressed mood, chronic sleep impairment, circumstantial, circumlocutory or stereotyped speech, impaired abstract thinking, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting, impaired impulse control, such as unprovoked irritability with periods of violence. April 2017 VA treatment records show that the Veteran denied any psychological distress and described himself as “very happy with my life.” He had no issues with relationships or interpersonal functioning. He was upset about the recent removal of longstanding medication for sleep. He indicated that he would sleep approximately 7 hours with the medication, and now he was having difficulty with sleep. The Veteran reported poor sleep hygiene, noting that he ate large meals before bed, did very demanding work just before bed and smoked close to bedtime. A July 2017 VA mental health consultation note indicates that the Veteran was evaluated following a hospital admission for altered mental status. The Veteran reported that depressive and anxiety symptoms made it “not difficult at all to do his work, take care of things at home, or get along with others.” The Veteran was negative for lifetime history of mania/hypomania symptoms and denied any history of hypomania or mania; however, the physician determined that the Veteran was “very grandiose during evaluation, may not be a reliable historian.” The Veteran reported that he stayed up at night painting his kitchen cabinets. They physician noted that the Veteran was prescribed 4 psychotropic medications from VA and the Veteran reported that he was prescribed Xanax from a non-VA facility. The physician determined that the Veteran’s current psychotropic medication regimen is inappropriate for the Veteran’s bipolar disorder. The Veteran adamantly denied suicidal and homicidal ideations, plans or intent and the Veteran had the ability to determine right from wrong, the physician determined that he was a low risk for self-harm. After review of the record, the Board finds that a rating higher than 50 percent is not warranted. 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 Board acknowledges the Veteran’s episodes (February 2009, April 2009 and 2014) when he was admitted to the hospital; however, all three episodes occurred when the Veteran was not compliant with his medication. For the majority of the period on appeal, the Veteran’s bipolar disorder was well-managed with medication when the Veteran appropriately took it. The rating schedule contemplates the use of medication. Considering all the medical and lay evidence of record, the Board finds that the social and occupational impairment does not more nearly match the criteria for the 70 or 100 percent rating. The evidence indicates that the except for the times when the Veteran was noncompliant with this medication, the Veteran’s mood was stable, consistently denying mania and delusions, and his hygiene was good. The record further reflects that the Veteran has a good relationship with his son and maintained friendships with frequent socialization. While the record indicates that the Veteran experienced depressed mood, chronic sleep impairment, circumstantial, circumlocutory or stereotyped speech, impaired abstract thinking, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting, impaired impulse control, such as unprovoked irritability with periods of violence, these symptoms have been compensated under a 50 percent rating. The evidence does not show that the Veteran has deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood due to 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships. The Board acknowledges the Veteran’s contention (through his representative) that he is entitled to a retrospective medical opinion regarding the severity of his bipolar disorder from the date of service connection. However, as discussed above, the medical evidence discussed above provides the Board with an ample evidence to determine the severity of the Veteran’s bipolar disorder throughout the appeal period. Therefore, a retrospective medical opinion is not necessary. Therefore, the Board finds that a rating in excess of 50 percent for the Veteran’s service-connected bipolar disorder is not warranted. 38 C.F.R. § 4.130, DC 9432. Entitlement to a Total Disability rating based on Individual Unemployability (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. Marginal employment is not considered substantially gainful employment. 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 unable to maintain substantial and gainful employment due to his service-connected bipolar disorder. He indicates that he is entitled to TDIU from May 2008. The Veteran’s February 2017 VA form 21-8940 indicates that the Veteran became to disable to work in 1983. The form also indicates that the Veteran worked as a self-employed taxi driver from 1987 to 2003; worked at a hospital from 1981 to 1983 and worked at B & O Railroad from 1975 to 1979. The representative indicated that the Veteran last worked full-time as a self-employed taxi driver, making $800 per month. She indicated that prior to that, the Veteran was a musician. She further indicated that the Veteran stopped working due to his bipolar disorder. Although on his Form 21-8940 the Veteran reported that he last worked as a taxi driver in 2003, a month later he reported that he mainly worked as a musician and began supplementing his income as a taxi driver in 2003. Specifically, during his March 2017 VA examination, the Veteran reported that a majority of his employment was working as a musician, playing throughout the United States and abroad. He also worked for a time on cruise ships. The Veteran further reported that he began supplementing his income as a taxi cab driver in 2003. He noted that his driver’s license was revoked due to two fender benders in 2011. He reported that the accidents were due to “reasons of health.” The examiner noted 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 record indicates that the Veteran’s psychological symptoms are stable and well-managed when he is compliant with his medications. Aside from the 4 times between 2008 and 2018 that the Veteran took too much medication or did not take his medication, the medical treatment records show that the Veteran’s psychiatric disability remains generally stable and he is compliant with his medications. Therefore, after a thorough review of the record, the Board finds that referral for extraschedular consideration for entitlement to a TDIU is not warranted. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel