Citation Nr: 20021833 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 15-18 942 DATE: March 27, 2020 ORDER Entitlement to an initial compensable rating for erectile dysfunction is denied. Entitlement to a rating in excess of 70 percent prior to June 18, 2013; from February 1, 2014 through May 31, 2015; and from July 1, 2015, onward, for bipolar disorder with alcohol and drug abuse is denied. Entitlement to a temporary total rating from June 1, 2015 through June 24, 2015, is granted. FINDINGS OF FACT 1. The Veteran does not have a deformity of the penis. 2. The preponderance of evidence is against finding that prior to June 18, 2013; from February 1, 2014 through May 31, 2015; and from July 1, 2015, onward, the severity, frequency, and duration of the symptoms of the Veteran’s bipolar disorder with alcohol and drug abuse are productive of total occupational and social impairment. 3. From June 1, 2015 through June 24, 2015, the Veteran’s bipolar disorder with alcohol and drug abuse required hospital treatment in a VA Medical Center (VAMC) for a period in excess of 21 days. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.115b, Diagnostic Code 7522. 2. Prior to June 18, 2013; from February 1, 2014 through May 31, 2015; and from July 1, 2015, onward, the criteria for entitlement to a 100 percent rating for bipolar disorder with alcohol and drug abuse have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9432. 3. From June 1, 2015 through June 24, 2015, a temporary total rating due to hospitalization for bipolar disorder with alcohol and drug abuse is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.29. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1974 to March 1976. He served honorably in the U.S. Army. The Board thanks the Veteran for his service to our country. In a May 2017 Rating Decision issued prior to the promulgation of a decision in this appeal, the Regional Office (RO) granted entitlement to TDIU effective October 13, 2011, which represents a full grant of the benefit sought on appeal. The Board notes that in his Form 9, the Veteran requested a hearing by videoconference which was scheduled in October 2017; however, the Veterans Law Judge who was to hold the hearing marked the hearing as cancelled. The Board erroneously sent the Veteran a hearing clarification letter in January 2019. However, as no timely motion to reschedule was received, the Board deems his request for a hearing cancelled. New evidence was received after a May 2017 Supplemental Statement of the Case; in January 2020, the Veteran submitted a waiver of Agency of Original Jurisdiction (AOJ) consideration. Increased Rating Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran’s entire history is reviewed when making disability ratings. See generally 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). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Decisions of the Board shall consider all information and lay and medical evidence of record in a case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303(a). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Medical opinions must contain clear conclusions with a reasoned medical explanation based on supporting data. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence pertinent to the issues on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. 1. Entitlement to an initial compensable rating for erectile dysfunction is denied. The Veteran’s erectile dysfunction is rated as noncompensable under Diagnostic Code 7599-7522 effective from March 8, 2013. He is also in receipt of special monthly compensation (SMC) for loss of use of a creative organ from March 8, 2013. DC 7522 allows for a 20 percent rating when the evidence shows both loss of erectile power and a physical deformity of the penis. Although the rating schedule does not provide a zero percent evaluation for DC 7522, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Based upon the evidence of record, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to a compensable disability rating for erectile dysfunction for the entirety of the rating period on appeal. In June 2014 and December 2018 VA examination reports, the examiner indicated that he is not able to achieve an erection sufficient for penetration and ejaculation. However, both examination reports note that physical examinations were negative for deformity of the penis; additionally, there is no medical or lay evidence of record of a physical deformity of the penis. Without evidence of deformity of the penis, there is no basis for the assignment of a compensable evaluation for erectile dysfunction. The Veteran contends that his erectile dysfunction causes him feelings of depression and embarrassment and that it affects his social life. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also 38 C.F.R. § 4.14. The Veteran’s service-connected bipolar disorder with alcohol and drug use is currently rated as 70 percent disabling under the General Rating Formula for Mental Disorders, which contemplates depression and inability to establish and maintain effective relationships at the 70 percent rating, and disturbances in mood and motivation at the 50 percent rating; thus, his complaints are already compensated under his rating for his service-connected bipolar disorder with alcohol and drug use. A higher rating for erectile dysfunction based on his contention of mental health symptoms would constitute impermissible pyramiding. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The claim is, therefore, denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. & 3. Entitlement to a 100 percent rating prior to June 18, 2013; from February 1, 2014 through May 31, 2015; and from July 1, 2015, onward, for bipolar disorder with alcohol and drug abuse is denied. Entitlement to a rating of 100 percent from June 1, 2015 through June 24, 2015, is granted. The Veteran contends that the severity of his psychiatric disorder warrants a 100 percent rating. The Board finds that prior to June 18, 2013; from February 1, 2014 through May 31, 2015; and from July 1, 2015, onward, the preponderance of the evidence is against the claim. From June 1, 2015 through June 24, 2015, a temporary total rating is warranted based on a period of hospitalization. The Veteran’s bipolar disorder with alcohol and drug abuse is rated 100 percent disabling from June 18, 2013 through January 31, 2014, and 70 percent disabling for the remainder of the period on appeal. Bipolar disorder is rated by applying the criteria in 38 C.F.R. § 4.130, Diagnostic Code (DC) 9432. The VA Schedule rating formula for mental disorders reads in pertinent part as follows: 100 percent rating (the maximum scheduler rating) - 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. 70 percent - 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). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency 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). When determining the appropriate disability rating to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 441 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms; a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Factual Background In a November 2011 Adult Function Report, the Veteran reported that he was sometimes depressed, that he had problems getting along with family and friends when depressed, and that he did not handle stress well. He indicated that he did not need any reminders to care for his personal needs or grooming. He stated that he traveled via public transportation, and that he could pay bills, count change, handle his savings account, and use a checkbook or money orders. He reported spending time with friends when they visit and attending church weekly. In a November 2011 third party function report, a friend of the Veteran relayed that he was getting progressively worse and was depressed and introverted. The friend relayed that he was unable to sleep comfortably and became restless and tired during the day. In January 2012 Social Security Administration records, the Veteran reported that he had little appetite, worried excessively, and spent time sleeping or watching television. He reported occasionally attending Alcoholics Anonymous meetings. He relayed a history of poor impulse control since at least adolescence. In December 2012, the Veteran sought psychiatric treatment and a renewal of his previously-prescribed medication. He endorsed depression. Days later, he again sought treatment after having thoughts of running into a car, stating, “I just did not want to be here anymore.” He rated his depressive symptoms as moderately severe and stated that they made it very difficult to do work, take care of things at home, or get along with others. In a June 2013 note, the treatment provider assessed the contemporaneous state of the Veteran’s disorder as “severe,” noting that his behavior was highly impulsive. Nevertheless, the treatment provider concluded that he was low risk, with no active suicidal ideation. That same day, he presented to urgent care requesting substance abuse treatment. He was noted to be adequately groomed, cooperative, and very depressed. Denying suicidal or homicidal ideations, he alluded to the fact that he was close to the end if he did not receive the help he needed. On June 18, 2013 the Veteran was admitted into a residential rehabilitation treatment program (RRTP); he was discharged in January 2014. In an April 2014 submission, the Veteran stated that he could not sleep at night and would wake up sweating and trembling. In a May 2014 VA examination report, the Veteran reported a close relationship with his family, but implied that they were not supportive during his “episodes.” He stated that he had two close friends and had not dated in two years. He reported a few recent visual hallucinations, attributing them to not sleeping for a while. Noting symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once per week, 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, the examiner concluded that his disorder resulted in occupational and social impairment with deficiencies in most areas. In an August 2014 NOD, the Veteran reported a total lack of concentration, extreme bouts of depression, and inability to stop having nervous fits. He stated that his coworkers observed his depression, happiness, and sadness at work. He stated that he had arguments with his coworkers that, at times, almost resulted in physical altercations. He stated that he did not get along with his family either, and that he did not have a social life or friends. He relayed chronic sleep impairment and stated that lack of sleep for several days made him crazy. He stated that his symptoms would worsen if he forgot his medication. At a December 2014 psychiatry consultation, the Veteran reported unstable moods, depression, decreased motivation, isolation, and hypomanic episodes. He reported that he still had dreams and persistent problems sleeping. In a February 2015 note, the Veteran reported unstable moods, depression, decreased motivation, isolation, irritability, and hypomanic episodes. He reported a chronic sense of futility. He reported persistent problems sleeping and periods of wakefulness. On June 1, 2015, the Veteran was admitted to a VAMC for a substance abuse RRTP; he was treated almost daily and discharged later that month after 23 days. In August 2015, the Veteran reported that he had improved after changes to his medication, but that he had unstable moods after running out of his medication. His treatment provider concluded that he was able to take care of his basic needs. In December 2015, the Veteran reported mood instability once or twice, as well as an anxiety attack. He reported that he frequently attended meetings and church. According to the treatment provider, he recognized that he was doing much better than before. The treatment provider concluded that he was able to care for his basic needs. In a March 2016 note, the Veteran confirmed that he was taking his medication as prescribed and that his moods were stable. In a January 2017 note, the Veteran reported that he had a good holiday, spending it with his family. He reported that he was managing his anxiety. He said that, in addition to his meetings and church, he chaired a substance abuse group. In a July 2017 note, the Veteran reported becoming depressed when he learned that his cancer was not in remission; however, he was able to focus on the support of his family and friends, as well as his access to healthcare. He reported that he could manage his anxiety and was able to calm himself down. The treatment provider concluded that he was able to take care of his basic needs. In a January 2018 note, the treatment provider noted that the Veteran’s opiate dependence was in early partial remission and his cocaine dependence was in complete full remission. The Veteran reported that he had gotten engaged. He reported that he was moving to be closer to his family and friends and that he was looking forward to the move. In a September 2018 transplant outpatient note, the Veteran reported noncompliance with his psychiatric medications, stating that he had not taken them since April of that year. It was noted that he had remained off all psychiatric medications throughout the transplant period and had done well. In a January 2019 examination, the Veteran reported living with his fiancée and that he was in contact with his son, talking with him once every few months. He reported talking with his siblings about once per month. He reported that he did not have many friends, but that he met them monthly. He reported that he spent his free time reading, attending meetings, and attending church. He reported that he could fully and independently complete tasks of daily living. He reported mood shifts every other day, which were more intense and frequent since the last examination. He reported sleeping five hours per night. He reported an increased need for talking, lack of concentration, racing thoughts, an inability to focus, feelings of hopelessness, and increased tearfulness. He reported increased irritability, fatigue, or loss of energy. He reported that he had a depressed mood more frequently than any other type of mood. The examiner noted symptoms of depressed mood; chronic sleep impairment; mild memory loss; impaired short- and long-term memory; circumstantial, circumlocutory, or stereotyped speech; disturbances in motivation and mood; difficulty establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances. The examiner concluded that he was capable of managing his own financial affairs and assessed that his disorder resulted in occupational and social impairment with reduced reliability and productivity. At multiple times during the period on appeal, the Veteran reported mild, moderate, and severe depression that made it somewhat difficult or very difficult to do work, take care of things at home, or get along with other people; anxiety; and unstable moods. Throughout the period on appeal, the Veteran was consistently noted by treatment providers to be fully oriented and appropriately dressed and groomed. His speech, behavior, thought process, and thought content was consistently unremarkable. His memory and concentration were generally noted to be fair or grossly intact, and his insight and judgment were generally noted to be fair. With the exception of a visual hallucination reported in May 2014, he consistently denied audial or visual hallucinations and delusions. With the exception of the December 2012 event where he reported thoughts of running into a car, he consistently denied thoughts or plans of hurting himself or others. Analysis The preponderance of evidence is against finding that prior to June 18, 2013; from February 1, 2014 through May 31, 2015; and from July 1, 2015, onward, the Veteran’s bipolar disorder with alcohol and drug use symptomatology warrants a 100 percent disability rating for the periods at issue. While the record includes notations or reports of anxiety, unstable moods, lack of concentration, and impaired judgment, the Veteran’s speech, thought processes, and thought content were consistently noted by treatment providers as unremarkable and his judgment was generally noted to be fair. The preponderance of evidence is against finding that these symptoms were so severe as to constitute gross impairment in thought processes or communication or grossly inappropriate behavior. The Veteran reported visual hallucinations one time and attributed it to lack of sleep; the frequency and duration of this manifestation do not constitute persistent delusions or hallucinations. The Veteran also reported thoughts of running into a car once during the period on appeal but did not report planning or any attempts. There are also multiple notations of depression. However, the severity, frequency, and duration of these manifestations do not constitute a persistent danger of hurting himself or others. Although he stated in his August 2014 NOD that he had no social life or friends and did not get along with his family, elsewhere in the record he reported regular communication with his family and regular meetings with his friends. Indeed, at his May 2014 examination, he reported being close with his family and having two close friends. Moreover, he consistently reported regularly attending meetings and church. Despite manifesting in problems with his family, friends, and colleagues, his disorder did not result in total occupational and social impairment. The Board notes that the Veteran was consistently assessed to be able to care for himself and manage his own finances; his dress, grooming, and hygiene were consistently noted to be adequate. He was consistently observed to be fully oriented, and his memory was generally noted to be grossly intact. With respect to the periods prior to June 18, 2013; from February 1, 2014 through May 31, 2015; and from July 1, 2015, onward, the level of impairment caused by the severity, frequency, and duration of the Veteran’s symptoms more nearly approximates the level associated with a 70 percent rating; accordingly, a 100 percent rating is not warranted. As the preponderance of the evidence is against the claim for these periods, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. Finally, during the period on appeal, the Veteran was admitted twice to a VAMC for rehabilitative treatment. Accordingly, in addition to the 100 percent rating granted by the AOJ from June 18, 2013 through January 31, 2014, a 100 percent rating is warranted from June 1, 2015 through June 24, 2015. 38 C.F.R. § 4.29. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Vashaw, 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.