Citation Nr: 18153374 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-39 790 DATE: November 28, 2018 ORDER Entitlement to an increased rating in excess of 50 percent prior to March 25, 2015, and in excess of 70 percent since March 25, 2015, for bipolar affective disorder, mixed, is denied. FINDING OF FACT 1. Prior to March 25, 2015, the Veteran’s bipolar affective disorder, mixed, was manifested by a chronic sleep impairment, mild depression, some instances of irritability, and over-eating, but normal memory, adequate grooming and insight, generally cooperative behavior, no evidence of psychosis, and no suicidal or homicidal ideation. 2. Since March 25, 2015, the Veteran’s bipolar affective disorder, mixed, is manifested by a chronic sleep impairment, depression, irritable affect, neglect of personal appearance, and with an inability to establish and maintain effective relationships, but with logical and coherent thought process, orientated to time and place, no evidence of psychosis, and no suicidal or homicidal ideation. CONCLUSION OF LAW 1. The criteria for an increased rating in excess of 50 percent prior to March 25, 2015, and in excess of 70 percent since March 25, 2015, for bipolar affective disorder, mixed, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9432 (2018). 2. The criteria for an increased rating in excess of 70 percent since March 25, 2015, for bipolar affective disorder, mixed, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9432 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1977 to March 1978. This appeal to the Board of Veterans’ Appeals (Board) arose from a December 2012 rating decision issued by the Department of Veterans Affairs (VA). See April 2013 Notice of Disagreement (NOD); August 2016 Statement of the Case (SOC); August 2016 Substantive Appeal (VA Form 9). The November 2012 rating decision denied the Veteran’s claim for an increased rating in excess of 50 percent for his bipolar affective disorder, mixed. The Veteran appealed, and the August 2016 rating decision granted an increased rating to 70 percent, but no higher, effective March 25, 2015. The Board acknowledges that the Veteran submitted additional evidence since the August 2015 SOC, which includes an April 2015 private medical opinion. For substantive appeals received on or after February 2, 2013, as is the case here, if a veteran or a veteran’s representative submits evidence to the Agency of Original Jurisdiction (AOJ) or the Board for consideration in connection with the issues on appeal, the Board may consider such evidence in the first instance unless the veteran or representative requests in writing that the AOJ initially review such evidence. See 38 U.S.C. § 7105(e). There is no written request that the AOJ initially review the submitted additional evidence and, thus, the Board will consider the evidence as part of this appeal. In addition, the Veteran filed a claim for a total disability rating based on individual unemployability (TDIU), which was denied in the March 2015 rating decision. See January 2014 VA Form 27-0820; February 2014 VA Form 21-8940; March 2015 rating decision. The Veteran did not file an appeal and no new and material evidence was received within a year of that decision. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.160(d). Thus, to the extent the November 2016 Appellant’s Brief indicates the Veteran’s desire to file a claim for TDIU, the Veteran and his representative are directed to the amended regulations that now govern the filing of claims, which require that all claims governed by VA’s adjudication regulations be filed on the standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,659 (Sept. 25. 2014). As such, the discrete issue of TDIU is referred to the AOJ for action that is deemed appropriate in accordance with the amended regulations governing the filing of claims. Entitlement to an increased rating in excess of 50 percent prior to March 25, 2015, and in excess of 70 percent since March 25, 2015, for bipolar affective disorder, mixed. The Veteran seeks an increased rating for his service connected bipolar affective disorder, mixed, including an earlier effective date for the 70 percent rating, currently effective March 25, 2015. See June 2012 VA Form 21-526b; August 2016 VA Form 9. Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. See 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Here, the relevant evidentiary window begins one year before the Veteran filed his claim for an increased rating for his bipolar disorder, mixed, and continues to the present time. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s bipolar affective disorder, mixed, is currently assigned a 50 percent rating, effective since March 31, 2003, and a 70 percent rating, effective March 25, 2015, and thereafter. See December 2012 rating decision; August 2016 rating decision. His bipolar affective disorder is evaluated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9432. Under DC 9432, a 50 percent rating is warranted for 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 and social relationships. 38 C.F.R. § 4.130. The next higher rating is 70 percent, which 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); and inability to establish and maintain effective relationships. Id. The next higher rating is 100 percent, which 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; and memory loss for names of close relatives, own occupation, or own name. Id. After careful review of the evidence, the Board finds that the Veteran’s service connected bipolar affective disorder more nearly approximates to a 50 percent rating prior to March 25, 2015, and warrants a rating no higher than 70 percent rating from March 25, 2015, and thereafter. The Veteran did not make a specific assertion about his current bipolar affective disorder symptoms that warrant an increased rating, but the Board considered the Veteran’s complaints to his treatment providers in evaluating his claim. However, while the Veteran is competent to report his bipolar affective disorder symptoms, he is not competent to state whether his symptoms warrant a specific rating under the schedule for rating disabilities. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, in this case there are also inconsistencies between the Veteran’s complaints and the observations reported by his treatment providers. For example, in June 2011, the Veteran complained of mood swings, racing thoughts, depression, insomnia, irritability, and poor attention, but his mental status examination showed him as cooperative, responsive, sensible, goal-directed, and with good memory. See June 2011 VA treatment record. In September 2012, the Veteran was seen for continuing depression, impaired sleep, anxiety, and irritability, but was noted by his treatment provider as well groomed, having good attention, and with normal memory and thought process. See September 2012 VA treatment record. In February 2013, his treatment provider did note the Veteran as being rude, hostile, and loud spoken. See February 2013 VA treatment record. Later that year, the Veteran complained of mood swings, racing or rambling thoughts, over eating, insomnia, hyperactivity, and irritability, but his treatment provider found him to be well dressed and groomed, fully alert, friendly, coherent, and with a good attitude. See July 2013 VA treatment record. During a January 2015 psychiatry visit, the Veteran complained of poor concentration, poor sleep, and increased irritability, but his treatment provider observed that he was cooperative with well organized thought processing. See January 2015 VA treatment record. The Board finds that, while the Veteran has consistently complained of depression, insomnia, and irritability, the observations by his medical providers that describe him as well groomed, fully alert, and with normal memory and thought process, are inconsistent with his other asserted symptoms. As for the medical opinion evidence, the September 2012 VA examiner opined that the Veteran’s bipolar affective disorder resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functionally satisfactorily with normal routine behavior, self care, and conversation. See September 2012 VA examination. The VA examiner considered the Veteran’s statement that he had been living in Japan and had trouble finding employment there because he could not write in Japanese, but has now returned to the United States to seek a liver transplant. Id. The VA examiner observed that the Veteran was somewhat circumstantial, very anxious about his medical condition, and mildly depressed, but that he was fully alert with well organized thoughts and no evidence of elevated mood, paranoia, or psychosis. Id. The Veteran was afforded another VA examination for his bipolar affective disorder in March 25, 2015. The VA examiner considered that, since the September 2012 VA examination, the Veteran no longer lives with friends and now primarily isolates himself in his room. See March 2015 VA examination. The VA examiner observed the Veteran to be cooperative and with no evidence of psychosis, but depressed and irritable at times. Id. The VA examiner also noted that the Veteran appeared unkempt, which is in contrast to the treatment records and the September 2012 VA examiner’s observations that the Veteran is generally well groomed or dressed. See Id. The VA examiner opined that the Veteran’s bipolar affective disorder resulted in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, thinking, and/or mood. Id. Finally, the April 2015 private medical opinion submitted by the Veteran from H.H. Ph.D, HSSP, indicates that the Veteran has occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood. See April 2015 Mental Disorders Disability Benefits Questionnaire (DBQ). Dr. H.H.’s mental status examination showed that the Veteran had normal attention and speech flow, goal directed thoughts, average intellect, and no overt hallucinations, but that he also had variable concentration, struggled to remember basic information, was anxious, vague with his responses, and paranoid. See Id. Dr. H.H’s narrative assessment attached to her Mental Disorder DBQ noted that the Veteran was able to do most of his activities of daily living, but that he lets his “appearance go” and showers about three times a week. Id. The Board also considered the February 2013 opinion by D.P.B, D.O., which indicates bipolar disorder affects the Veteran and that he is incapable of even low stress work. See February 2013 Private treatment record. The Board gives little probative weight to Dr. D.P.B.’s opinion because the majority of the opinion is about the Veteran’s nonservice connected liver disease and there is no discussion of the Veteran’s bipolar affective disorder, mixed, symptoms. Id. The Board finds that the September 2012 VA examiner’s opinion is probative as a medical professional who is qualified to evaluate the Veteran’s psychiatric symptoms. The September 2012 VA examiner’s findings and opinions are also consistent with the medical treatment evidence discussed above, which show the Veteran has problems with sleep, mild depression, some instances of irritability, and over-eating, but normal memory, adequate grooming and insight, generally cooperative behavior, with no evidence of psychosis, and no suicidal or homicidal ideation. The September 2012 VA examiner’s opinion and medical treatment evidence support that the Veteran’s bipolar affective disorder symptoms more nearly approximates a 50 percent rating. See 38 C.F.R. § 4.130. However, the March 2015 VA examiner’s opinion and the April 2015 private medical opinion by Dr. H.H. support an increased disability rating of 70 percent, effective March 25, 2015. Both opinions support that the Veteran’s bipolar affective disorder resulted in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, thinking, and/or mood. See March 2015 VA examination; April 2015 Mental Disorder DBQ. Both opinions also noted examination findings that show the Veteran developed problems in establishing and maintaining effective relationships and neglect of personal appearance and hygiene, in addition to his prior problems with sleep, depression, and unprovoked irritability. See March 2015 VA examination; April 2015 Mental Disorder DBQ. While neither opinion notes symptoms such as suicidal ideation, interference with routine activities, illogical speech, or spatial disorientation, the Board resolves every reasonable doubt in the Veteran’s favor in finding the opinions probative and supporting a 70 percent rating for the Veteran’s bipolar affective disorder since March 25, 2015, the date of the March 2015 VA examination. The Board also considered whether the Veteran’s bipolar affective disorder manifested to more nearly approximates a 100 percent rating at any time during the pendency of the appeal, but the Board finds that it has not. As discussed, the September 2012 VA examination report and medical treatment evidence support symptoms that more nearly approximates a 50 percent rating. Both the March 2015 VA examiner and Dr. H.H. opined that the Veteran’s bipolar affective disorder symptoms resulted in occupational and social impairment with deficiencies in most areas, but not total. See March 2015 VA examination; April 2015 Mental Disorder DBQ. The Board, therefore, finds that the probative evidence is against finding a disability rating in excess of 70 percent for the Veteran’s bipolar affective disorder. Based on the evidence above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence shows the Veteran’s bipolar affective disorder manifested in symptoms that warrant no more than a 50 percent rating prior to March 25, 2015, and no more than a 70 percent rating from March 25, 2015, and thereafter. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lin, Associate Counsel