Citation Nr: 18152252 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-31 282 DATE: November 21, 2018 ORDER An initial schedular rating of 100 percent for panic disorder with bipolar disorder is granted, subject to the law governing payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected panic disorder with bipolar disorder is dismissed. REMANDED Entitlement to service connection for residuals of a traumatic brain injury, to include as secondary to service-connected panic disorder with bipolar disorder, is remanded. FINDINGS OF FACT 1. The Veteran's panic disorder with bipolar disorder has been manifested by total occupational and social impairment due to severe symptoms including gross impairment in thought processes or communication, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, with long-standing unemployment. 2. Entitlement to TDIU is moot by virtue of the 100-percent schedular rating assigned for panic disorder with bipolar disorder. CONCLUSIONS OF LAW 1. The criteria for a 100 percent schedular rating for panic disorder with bipolar disorder are satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.130, Diagnostic Code 9400-9203 (2017). 2. Entitlement to TDIU is dismissed. 38 U.S.C. §§ 501, 1155; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1972 to September 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions. A November 2015 rating decision granted service connection for panic disorder with bipolar disorder and assigned a 70 percent disability rating, effective July 22, 2015. A February 2016 rating decision denied service connection for residuals of a traumatic brain injury. A July 2016 rating decision denied the Veteran entitlement to a TDIU rating. In January 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing. A transcript of that hearing is of record. In September 2015, a new VA Form 21-22a, Appointment of Individual as Claimant’s Representative, was received by VA appointing the attorney listed on the title page above. The Board recognizes this change in representation. VA has adopted a Schedule for Rating Disabilities (Rating Schedule) to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. 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. The percentage ratings in the Rating Schedule represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes listed in the Rating Schedule identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not "duplicative or overlapping with the symptomatology" of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Veteran's psychiatric disability has been rated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9400-9203. See 38 C.F.R. § 4.27 (explaining use of diagnostic code numbers). Diagnostic Code 9412 pertains to panic disorders. 38 C.F.R. § 4.130. With the exception of eating disorders, all mental health disorders are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment. See 38 C.F.R. § 4.130, DC's 9201-9440. As relevant to this appeal, the General Rating Formula provides that a 70 percent 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 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; inability to establish and maintain effective relationships). Id. A 100 percent disability rating 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; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. See id. Rather, VA must consider all symptoms of a claimant's condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed. 1994) (DSM-IV). Id. at 443. (The DSM-IV has been recently updated with a Fifth Edition (DSM-5), and VA has issued an interim final rule amending certain provisions in the regulations to reflect this update, including the Schedule for Rating Disabilities. 79 Fed. Reg. 45093. The amendments only apply to applications that are received by VA or are pending before the agency of original jurisdiction on or after August 4, 2014; they do not apply to appeals already certified to the Board or pending before the Board. Id.) If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, 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; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (noting that the "frequency, severity, and duration" of a veteran's symptoms "play an important role" in determining the disability level). The severity of the symptoms and the degree of occupational and social impairment they cause are independent factors; both must be satisfied to assign a given rating under the Rating Formula. See Vazques-Claudio, 713 F.3d at 116 (rejecting an interpretation of § 4.130 that would allow "a veteran whose symptoms correspond[ed] exactly to a 30 percent rating" to be granted a 70-percent rating solely because they affected most areas). In other words, there are two elements that must be met to assign a particular rating under the Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. See id. at 118 (holding that, in determining whether a 70 percent rating is warranted, VA must make "an initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation, an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The balance of the evidence supports a 100 percent rating for the Veteran's panic disorder with bipolar disorder. He was hospitalized for treatment of his psychiatric disorder in December 2014, May 2015 and then again in June 2015. Upon hospitalization, his Global Assessment Functioning (GAF) scores were 35, 40 and 45. The scores of 35 and 40 reflect "[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work)." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996); DSM-IV. While changes brought by the DSM-5 included removal of the GAF scale, it is not prejudicial to the Veteran for the Board to consider them in this case as they support his claim for the highest schedular rating of 100 percent. As reflected at the time of his October 2015 VA examination, the symptoms of the Veteran’s psychiatric disorder include gross impairment in thought processes or communication, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living. He stated that he had manic episodes where he felt like he “was bouncing off the wall," most recently three weeks ago and it lasted for one week, with low sleep, “energy level crazy," and “hard to maintain thought process.” He said he was “talking like crazy" and his friends mentioned it. The examiner noted that the Veteran had marked impairment in social functioning during these episodes. The examiner found that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran’s claims folder contains documents showing that he was arrested following a physical altercation in August 2014. A December 2014 Initial Nursing Evaluation Note indicates that the Veteran had trouble controlling his anger, or behaved violently towards others. At his video-conference hearing before the Board in January 2018, the Veteran testified that he had again been hospitalized for treatment of his psychiatric disorder in April 2017 as he was feeling homicidal. He also stated that he gets paranoid and thinks people might be out to get him and experiences social isolation. While a June 2016 VA examination report reflects improvement in the Veteran’s psychiatric disorder, given its waxing and waning nature and the frequency of episodes requiring hospitalization, as well as the fact that the Veteran has been unemployed throughout the entire appellate period, the Board finds that an initial 100 percent schedular rating under the General Rating Formula are more nearly approximated, and therefore a 100 percent rating is granted for service-connected panic disorder with bipolar disorder. 38 C.F.R. §§ 4.7, 4.130. With regard to entitlement to TDIU, this benefit contemplates a schedular rating less than total for the disability on which the TDIU would be based. See 38 C.F.R. § 4.16(a). Since a 100 percent schedular rating has been granted for the Veteran's psychiatric disability on a schedular basis – his only service-connected disability - the issue of entitlement to TDIU is rendered moot. See Vettese v. Brown, 7 Vet App. 31 (1994) (observing that a "claim for TDIU presupposes that the rating for the condition is less than 100 percent"); Holland v. Brown, 6 Vet App. 443 (1994). REASONS FOR REMAND Entitlement to service connection for residuals of a traumatic brain injury, to include as secondary to service-connected panic disorder with bipolar disorder, is remanded. During the January 2018 video-conference hearing, the Veteran and his attorney advised that the Veteran engaged in a physical altercation as result of his service-connected mental disorder. The Veteran’s claims folder contains documents relating to the August 2014 physical altercation. The hearing transcript indicates that the Veteran’s attorney believes that the dispute, and the residuals of a traumatic brain injury that came from the dispute, are linked to the Veteran’s service-connected mental disorder. The Veteran listed a number of private treatment facilities where he received medical treatment due to the altercation, including Beth Israel Deaconess Hospital and Morton Hospital. These private treatment records are not contained in the Veteran’s claims folder. A remand is required to allow VA to obtain authorization and request these records. Additionally, because there is at least an indication that the Veteran’s current residuals of a traumatic brain injury may be related to his active duty service through his service-connected panic disorder with bipolar disorder, a VA examination and opinion must be provided to make an informed decision on this claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is not competent to substitute its own opinion for that of a medical expert). VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon, 20 Vet. App. 79. The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. The Veteran’s VA treatment records indicate that when evaluating the Veteran’s mental health, he is noted to experience anger. Of note, a December 2014 Initial Nursing Evaluation Note indicates that the Veteran has had trouble controlling his anger, or behaved violently towards others. During the January 2018 video-conference hearing, the Veteran stated that his current mental health symptoms include anger, depression, paranoia, and isolation, and that he specifically related memory loss, seizures, and chronic headaches to the August 2014 physical altercation. As noted above, during the video-conference hearing, the Veteran’s attorney attributed the Veteran’s involvement in the physical altercation, and the residuals of a traumatic brain injury that resulted, to his service-connected panic disorder with bipolar disorder. Therefore, the above threshold having been met, a VA examination and opinion must be provided to make an informed decision on the Veteran’s claim for service connection for residuals of a traumatic brain injury. The matter is REMANDED for the following action: 1. Undertake efforts to verify the Veteran’s current mailing address. Then, ask the Veteran to complete a VA Form 21-4142 for any physicians and/or facilities adequately identified by the Veteran, including Beth Israel Deaconess Hospital and Morton Hospital. Make two requests for the authorized records from any physicians and facilities adequately identified by the Veteran, including Beth Israel Deaconess Hospital and Morton Hospital, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from April 2016 to the present. 3. After the above development is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any residuals of a traumatic brain injury. (a.) Identify all residuals of the Veteran’s traumatic brain injury. (b.) The examiner must opine whether any identified residual of the Veteran’s traumatic brain injury is at least as likely as not: (i) proximately due to the Veteran’s service-connected panic disorder with bipolar disorder, or (ii) aggravated beyond its natural progression by the Veteran’s service-connected panic disorder with bipolar disorder. (c.) The examiner must discuss the January 2018 statement from the Veteran’s attorney that attributes the Veteran’s involvement in the August 2014 physical altercation, and resultant claimed residuals of a traumatic brain injury, to his service-connected panic disorder with bipolar disorder. (Continued on the next page)   All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel