Citation Nr: 1806953 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-13 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES Entitlement to an evaluation in excess of 50 percent for bipolar disorder and anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to April 1970. This matter comes on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. FINDINGS OF FACT The Veteran's bipolar and anxiety disorders are manifested by symptoms such as depressed mood and disturbances of motivation and mood, resulting in occupational and social impairment with reduced reliability and productivity, but less than deficiencies in most areas. CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent for bipolar disorder and anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.125, 4.126, 4.130, Diagnostic Code 9432 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). As explained below, the Board has determined that a uniform evaluation for the entire period on appeal is appropriate. The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran is in receipt of a 50 percent evaluation for bipolar disorder and anxiety disorder under Diagnostic Code 9432. 38 C.F.R. § 4.130. The Veteran filed his increased rating claim on September 4, 2013. Diagnostic Code 9432 pertains specifically to the primary diagnosed disability in the Veteran's case (bipolar disorder). In any event, with the exception of eating disorders, all mental disorders including depressive disorder are rated under the same criteria in the rating schedule. Therefore, rating under another diagnostic code would not produce a different result. Moreover, the Veteran has not requested that another diagnostic code be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 9432. The criteria for a 50 percent rating are as follows: 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; difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are as follows: 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. The criteria for a 100 percent rating are as follows: 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. 38 C.F.R. § 4.130, Diagnostic Code 9432. Within the DSM-IV, Global Assessment Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). A GAF score is, of course, just one part of the medical evidence to be considered and is not dispositive. The same is true of any physician's statement as to the severity of a disability. It remains the Board's responsibility to evaluate the probative value of any doctor's opinion in light of all the evidence of record. The Board notes that the DSM-IV has been supplanted by and updated DSM-5, and VA's regulations have been updated to reflect the changes in the manual. However, the DSM-5 and associated provisions are only applicable to claims pending at the AOJ after August 4, 2014, and not to any matter which had been certified to the Board prior to that date, even if subsequently remanded to the AOJ. 80 Fed. Reg. 14308 (March 19, 2105). This matter was certified to the Board in May 2014, and as a result, the updated regulations are not applicable. At a February 2014 VA examination, the examiner concluded that the manifestations of the Veteran's bipolar and anxiety disorders resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported residing with his wife, with an improved relationship. He reported a close relationship with cousins and an active social life, including weekend dancing at the VFW and American Legion, weekly church, and volunteering. The Veteran reported his hobbies included crafting, playing softball, Facebook, exercising four times a week, and reading. The Veteran retired six years prior. He reported that his mania was well controlled by medication. He had frequent crying two to three times a month, but denied any symptoms of hopelessness, worthlessness, or helplessness. He experienced distressing thoughts of military trauma, but had reduced nightmares and generally good sleep. The Veteran reported that when he was working he would sometimes not feel like going to work, but that he was capable of performing the work. The Veteran was casually dressed and adequately groomed, with logical and goal-directed thinking. Affect was positive and mood congruent. The Veteran was cooperative, had normal speech, was oriented to all spheres, and denied any suicidal or homicidal ideations and any delusions or hallucinations. Additional documented symptoms were depressed mood and disturbances of motivations and mood. A review of the Veteran's VA treatment records reveals manifestations of the Veteran's bipolar and anxiety disorders consistent with the February 2014 VA examination. Upon careful review of the evidence of record, the Board finds that the objective medical evidence and the lay statements regarding the Veteran's symptomatology, more nearly approximates symptoms associated with a 50 percent disability rating for the entire period. The Board finds that the preponderance of the evidence is against an evaluation in excess of 50 percent for any period. Neither the lay nor the medical evidence of record more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for a 70 percent disability evaluation based on occupational and social impairment, with deficiencies in most areas. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9432. The Board has considered the VA treatment records, including all VA examination reports, and lay statements by the Veteran regarding the impact of his bipolar and anxiety disorders on his occupational and social impairment. The examiner reported that the Veteran's bipolar and anxiety disorders resulted in some occupational and social impairment, but clearly did not indicate that the Veteran had deficiencies in most areas. The Veteran's thought process was normal, he has some close friends and maintains relationships with family members, does not have any suicidal or homicidal ideation, and there are not constant panic attacks, impaired impulse control, abnormal speech, spatial disorientation, appearance and hygiene issues, or any other symptoms consistent with the occupational and social impairment contemplated by a 70 percent evaluation. Although the Veteran has impairment associated with his bipolar disorder and anxiety disorder, the medical evidence generally suggests that this impairment is mild to moderate, and not consistent with impairment contemplated by a 70 percent evaluation. See 38 C.F.R. § 4.130, Diagnostic Code 9432 (General Rating Formula for Mental Disorders). Therefore, the Board finds that the record reflects that the Veteran's symptomatology overall correlates with a 50 percent rating, and an evaluation in excess of 50 percent is not warranted. In rendering this decision, the Board acknowledges the Court's decision in Rice v. Shinseki, 22 Vet. App. 447 (2009), regarding the potential of a claim for entitlement to a TDIU to be raised by the record in increased rating claims. Here, the Veteran submitted a VA Form 21-8940 Application for a TDIU in December 2011, prior to his September 4, 2013 increased rating claim for bipolar disorder. The Veteran's TDIU claim was denied in a December 2014 rating decision. The Veteran did not appeal this decision and the Board has determined that a review of the record does not otherwise raise the issue of entitlement to a TDIU. The medical evidence and the Veteran's own reports indicate that the Veteran is both physically and mentally capable of maintaining employment, as evidenced by his self-reported physical activity and the evidence regarding the manifestations of his bipolar and anxiety disorder. ORDER Entitlement to an evaluation in excess of 50 percent for bipolar disorder and anxiety disorder is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs