Citation Nr: 20006944 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-38 402 DATE: January 28, 2020 ORDER Entitlement to a rating of 70 percent for bipolar disorder, as of February 9, 2009, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU), as of June 6, 2013, is granted, subject to the law and regulations governing the payment of monetary benefits. REMANDED Entitlement to a rating in excess of 70 percent for bipolar disorder is remanded. FINDINGS OF FACT 1. From February 9, 2009, the Veteran's bipolar disorder has been manifested by occupational and social impairment with deficiencies in most areas, such as with work, school, family relations, judgment, thinking, or mood. 2. The Veteran's service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation since June 6, 2013. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent for bipolar disorder, as of February 9, 2009, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9432. 2. From June 6, 2013, the criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1998 to September 1998 and from May 1999 to November 2005. These matters come before the Board of Veterans' Appeals (Board) from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, a Board hearing was held before the undersigned; a transcript of the hearing is of record. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Diagnostic Codes (DCs) are assigned by the rating officials to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the veteran’s claim, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). Under 38 C.F.R. § 4.130, Diagnostic Code 9432, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted when 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; the Veteran's difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating requires 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); or 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 as to time or place; or demonstrated memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Id., at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id., at 443. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating in excess of 10 percent for a bipolar disorder, until February 12, 2015, and in excess of 50 percent thereafter In February 2009, the Veteran filed a claim to increase his disability rating for his service-connected bipolar disorder, however, it appears that the RO did not act on this claim. In February 2015, the Veteran contacted the RO to notify of his intent to file a claim, which was subsequently filed in August 2015. The Veteran seeks a higher rating for his bipolar disorder, which is currently rated 10 percent disabling until February 12, 2015, and 50 percent disabling thereafter under 38 C.F.R. § 4.130, Diagnostic Code 9432. The Veteran was afforded a VA examination for his bipolar disorder symptoms in October 2015. The examiner opined that the Veteran’s bipolar disorder resulted in 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 examiner noted that the Veteran has manic episodes and chronic sleep impairment that have impacted his employment in the past. The examiner concluded that the Veteran’s symptoms included: chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including at work or in a worklike setting. Additionally, the Veteran noted that another noted symptom he experiences is his increased irritability. Based on this examination, the Veteran’s disability rating was increased to 50 percent, as of February 12, 2015. The Veteran was afforded another VA examination to evaluate his bipolar disorder in June 2018. The examiner opined that the Veteran’s bipolar disorder resulted in occupational and social impairment with reduced reliability and productivity. During the examination, the Veteran reported that he has not had any communication with his parents or siblings for the last ten years, and that he has not seen his children for about eight years. The examiner noted that the Veteran reported that sustaining employment has been difficult. While the Veteran has worked in various restaurants, construction, retail and telemarketing, no job has lasted for longer than six months and he has not had steady employment for the last four years. The VA examiner then concluded that the Veteran’s symptoms included: depressed mood; anxiety; chronic sleep impairment; impairment of short-and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; inability to establish and maintain effective relationships; and impaired impulse control, such as unprovoked irritability with periods of violence. Additionally, the Veteran noted that another symptom he experiences is his manic episodes. The examiner also detailed how the Veteran’s bipolar disorder impacts his employability. The Board finds that the examinations in the record are probative and should be considered competent evidence of record. However, the Board notes that the Veteran’s treatment records reveal symptoms that indicate even more increased severity with respect to the Veteran’s symptoms. The record also reflects that the Veteran has been treated by the VA for his psychiatric symptoms. Notably, in June 2014, the Veteran was admitted for manic symptoms, an assessment of his symptoms revealed he experiences anxiety; mania symptoms, that include decreased sleep, irritability, and poor concentration; and psychotic symptoms, that include auditory hallucinations. These VA treatment records also include notes hospitalizations December 2017 and March 2018, the latest including an intentional overdose with mood stabilizers, during a manic episode. This clearly demonstrates that the Veteran has suicidal ideation, even though he denies it. The Board notes that in Bankhead v. Shulkin, the Court noted that, "[T]he presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." Bankhead, 29 Vet. App. 10, 20 (2017) (affirming that suicidal ideation does not require suicidal intent, a plan, or preparatory behavior). The Board finds that throughout the appeal, the Veteran’s bipolar disorder has been characterized by depressed mood with disturbances in motivation; feelings of detachment or estrangement from others; flattened affect; anxiety; irritable behavior and angry outbursts; hypervigilance; mild memory loss; sleep disturbance; flashbacks; and suicidal ideation. Despite the October 2015 and June 2018 opinions that the Veteran’s bipolar disorder resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with a normal routine behavior, self-care and conversation; or occupational and social impairment with reduced reliability and productivity, the Board finds that the Veteran’s symptoms, chiefly his suicidal ideation and auditory hallucinations, are suggestive of, at least, occupational and social impairment with deficiencies in most areas. See Bankhead, 29 Vet. App. 10. After resolving any doubt in the Veteran’s favor, the Board finds that his bipolar disorder resulted in occupational and social impairment with deficiencies in most areas. Accordingly, from February 9, 2009, to present, a 70 percent rating for bipolar disorder is warranted. TDIU Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is considered to be unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). An award of TDIU "does not require proving 100 percent unemployability." Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Rather, an award of TDIU requires that the claimant show an inability "to secure and follow a substantially gainful occupation by reason of service-connected disabilities." 38 C.F.R. § 4.16(b). In the process of making this determination, "the central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). The Board additionally "must take into account the individual veteran's education, training, and work history" but "may not consider nonservice-connected disabilities or advancing age." Id. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Additionally, in determining whether unemployability exists for TDIU, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by any nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In order for a veteran to prevail on a claim for a TDIU, the record must reflect some factor that takes his case outside of the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Neither the effect of nonservice-connected disabilities nor of the veteran's age may be considering in determining whether TDIU is warranted. Id. 2. Entitlement to TDIU In August 2015, the Veteran has filed a claim of entitlement to total disability rating due to TDIU. When entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran had an increased rating claim pending since February 9, 2009, for his sole service-connected disability, bipolar disorder, which is a separate issue in this opinion. In light of the Rice decision, the Board will infer a claim for TDIU as part of the Veteran's bipolar disorder claim that was started on February 9, 2009. From February 9, 2009, the Veteran’s sole service-connected disability is bipolar disorder (assigned a 70 percent rating). Therefore, the tenets of 4.16(a) thereby apply. The Veteran completed a VA Form 21-8940 dated August 2015 in which he reported that his bipolar disorder began affecting his employment in July 2006, and that he became too disabled to work in June 6, 2013. He further reported he had one year of college education with no additional education or training. The Veteran failed to indicate his specific record of employment, however, this was supplemented during his Board hearing in November 2019, and by the Veteran’s VA examinations. The Veteran was afforded a VA examination for his bipolar disorder symptoms in October 2015. The VA examiner opined that the Veteran’s bipolar disorder resulted in 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 examiner noted that the Veteran has manic episodes and chronic sleep impairment that have impacted his employment in the past. The Veteran was afforded another VA examination to evaluate his bipolar disorder in June 2018. The VA examiner opined that the Veteran’s bipolar disorder resulted in occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran reported that sustaining employment has been difficult for the Veteran in the past. While the Veteran has worked in restaurants, construction, retail and telemarketing, no job has lasted for longer than six months and he has not had steady employment for the last four years. The examiner also detailed how the Veteran’s bipolar disorder impacts his employability. After weighing all the evidence of record, reported earlier in this decision, and resolving all doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disability renders him unable to secure and follow a substantially gainful occupation. The Veteran has very little formal education and has not received any other education or training beyond his prior work experience. Furthermore, the evidence shows that the Veteran's service-connected bipolar disorder causes emotional instability, including depressed mood, manic episodes and anxiety, impacts his day to day reliability and his ability to trust co-workers and supervisors; difficulty in establishing and maintaining effective work and social relationships, including impaired impulse control, impacts his ability to connect with co-workers, supervisors and the public in a reasonable and professional manner; difficulty in adapting to stressful circumstances, including work and work-like settings impairs his ability to sustain employment in a workplace environment; and chronic sleep impairment, disturbances of motivation and mood, impaired judgment, and impaired short-term memory hinder his ability to follow directions, receive instructions and to make decisions on the job. Therefore, the Board resolves all reasonable doubt in favor of the Veteran and finds that his service-connected disability prevents him from obtaining and maintaining substantially gainful occupation, effective from June 6, 2013. Accordingly, the Board finds that entitlement to TDIU is warranted, effective from June 6, 2013. 38 C.F.R. §§ 3.341(a), 4.16, 4.18, 4.19. REASONS FOR REMAND Entitlement to a rating in excess of 70 percent for bipolar disorder is remanded. Regarding the claim for an increased disability rating in excess of 70 percent for a bipolar disorder, a remand is required for an examination. Remand may be required if record before the Board contains insufficient medical information for evaluation purposes. Littke v. Derwinski, 1 Vet. App. 90, 93 (1990). Notably, in June 2014, the Veteran was admitted for manic symptoms, and an assessment of his symptoms revealed he experiences auditory hallucinations. As addressed above, the Veteran’s treatment records reveal a disability picture that is more severe that the one presented by his VA examinations. Therefore, the Board finds that another examination is required to adequately evaluate the Veteran disability and address his reported auditory hallucinations. The matter is REMANDED for the following action: Provide the Veteran with an appropriate examination to determine the current severity of the service-connected bipolar disorder and provide a retrospective opinion of the severity of the disability back to February 9, 2009. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. The examiner is asked to specifically address the Veteran reported auditory hallucinations, which were noted in his treatment notes from June 2014. The examiner is advised that the Veteran is considered competent to be able to report symptoms, and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A complete rationale should be provided for all opinions expressed. If the VA examiner finds that he or she must resort to speculation to render the requested opinion, he or she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. If the examiner is unable to complete testing, provide a complete rationale as to why it was not completed and if it is possible to complete. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. R. Montalvo, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.