Citation Nr: 21000190 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 18-37 661 DATE: January 4, 2021 ORDER Entitlement to an increased rating in excess of 70 percent for bipolar disorder (previously adjustment disorder with mixed anxiety and depressed mood) is denied. REMANDED Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to March 31, 2018, is remanded. FINDING OF FACT During the entire rating period on appeal, the Veteran’s service-connected bipolar disorder manifested as occupational and social impairment with deficiencies in most areas; it did not manifest as total social and occupational impairment. CONCLUSION OF LAW The criteria for entitlement to an increased rating in excess of 70 percent for bipolar disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code 9432. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 2010 to August 2010, and May 2011 to June 2012. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2014 rating decision by the Regional Office (RO). The Board notes that relevant VA treatment records were added to the claims file in September 2018 and January 2019. This VA generated evidence was not considered by the Agency of Original Jurisdiction (AOJ) subsequent to its issuance of the June 2018 statement of the case (SOC). See 38 C.F.R. §§ 19.37, 20.1304(c); compare 38 U.S.C. § 7105 (e) (discussing automatic waiver of evidence submitted by the claimant or the claimant’s representative). In November 2020, the Veteran’s representative submitted a waiver of AOJ consideration of all evidence since June 2018, to specifically include CAPRI records since June 2018, in the first instance. As such, the Board may proceed in adjudicating the issues on appeal. 1. Entitlement to an increased rating in excess of 70 percent for bipolar disorder is denied. The Veteran’s service-connected bipolar disorder (previously adjustment disorder with mixed anxiety and depressed mood) has been evaluated as 70 percent disabling from July 31, 2014, under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9432. Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran’s symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing 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 his symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2. If there is a question as to which evaluation should be applied to the veteran’s disability, 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 primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the provisions for rating psychiatric disorders, a 70 percent rating is warranted when there is 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.) A 100 percent rating is warranted when there is 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. Ratings are assigned according to the degree of occupational and social impairment resulting from manifestations of the disability at issue. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign a rating 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. 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. The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. The appeal for an increased rating for bipolar disorder comes from a July 31, 2014 claim submitted by the Veteran. VA treatment records from July 2014 to October 2014 indicate the Veteran was a danger to self or others and reflect the Veteran’s history of bipolar affective disorder and posttraumatic stress disorder (PTSD) as well as her reports of forgetfulness, anxiety, and the use of hydroxyzine seven times a day to “calm down.” She endorsed homicidal and suicidal ideations, reporting that she wanted to stab fellow soldiers in her reserve unit and envisioned overdosing on pills while lying in a bubble bath with candles. She also reported feeling “amped up” and thoughts of killing people or leaving her children because she did not feel like her old self. A November 2014 VA examination reflects a current diagnosis of bipolar disorder unspecified with rapid cycling. The examiner found the Veteran’s mental diagnosis resulted in occupational and social impairment with reduced reliability and productivity. The examiner noted symptoms associated with the Veteran’s bipolar disorder included depressed mood, anxiety, panic attacks, chronic sleep impairment, mild memory loss, flattened affect, circumstantial and intermittent illogical speech, difficulty in understanding complex commands, impaired abstract thinking, disturbances of motivation and mood, difficulties in establishing and maintaining effective work/social relationships and adapting to stressful circumstances, inability to establish and maintain effective relationships, and obsessional rituals. The Veteran reported that she lived with her husband and two children, participated in children’s activities, and cooked homemade meals. She also reported that her manic symptoms seemed to activate daily and that her husband did not understand why she was unhappy when he provided well for the family. The Veteran further reported daily manic symptoms ranging from mild to severe, frequent naps due to exhaustion, and unhappiness. The examiner concluded that, although the Veteran’s diagnosis changed to reflect the exacerbation of symptoms, she continued to meet the criteria for a service-connected mental disorder and that her symptoms had worsened significantly. The examiner further concluded that the increase in symptoms and decrease in functioning was more likely than not the result of the bipolar disorder. In July 2015, the Veteran reported daily panic attacks, worsening symptoms even with use of medications, and that her behavior was taking a toll on her family. VA mental health notes between April 2016 to June 2016 reflect the Veteran’s reports of unhappiness with crying spells, hopelessness, anhedonia, poor motivation and energy, isolation, irritability, emptiness, visions of harming others but no intent, and the continued use of medications. The Veteran also reported increased irritability at work. In a January 2017 VA examination, the examiner found that the Veteran still displayed occupational and social impairment with reduced reliability and productivity. The examiner noted no significant changes in the Veteran’s social/marital/family circumstances since the prior VA examination in November 2014 and that she spoke with her sister-in-law every day, had three friends that she visited occasionally, attended church whenever she can, and spoke with her father twice per month. The Veteran reported a strained relationship with her husband due to her anxiety and mood swings but a working relationship with her daughters. The examiner noted the Veteran struggled with depressed mood, anxiety, panic attacks, near-continuous panic or depression, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work/social relationships and adapting to stressful circumstances. Upon behavioral observations, the Veteran was neatly groomed, expressed herself in a relevant and coherent manner, and interacted in a cooperative and agreeable manner. The Veteran denied suicidal and homicidal ideations, bizarre or delusional beliefs, or morbid preoccupations. The Veteran also reported her employment with the Department of State as an HR specialist from 2015 to 2017 and that she most recently completed her undergraduate degree in business administration from Limestone University. She reported her mood swings interfered with her job performance. The examiner concluded that there was no evidence of worsened symptoms since the November 2014 examination, and the Veteran’s overall social/occupational functioning appeared to improve as evidenced by her occupation from 2015 to 2017 and the completion of her undergraduate degree. A January 2017 VA mental health note demonstrates the Veteran suffered from PTSD and bipolar depression, with symptoms of extreme worry, emotional numbing, and psychological urgency. An October 2017 VA treatment record reflects the Veteran’s in-patient hospitalization at VAMC Charleston. At such time, the Veteran endorsed suicidal ideations and displayed hallucinations that she described as hearing voices that would not stop. A December 2017 private opinion from treating physician, Dr. E.E.L, notes the Veteran was hospitalized under his care for 11 days in October 2017 and that she continued to struggle with issues of depression, anxiety, and anger. He further states that her symptoms prevented her from returning to work at a high functioning state and advised against returning until there was improvement following intensive outpatient support. See June 2018 CAPRI. A May 2018 treatment record demonstrates the Veteran abused cocaine during mania and was hospitalized twice for visual hallucinations of blood. The Veteran reported daily stress and worry, fear that others around her will die, compulsive habits of checking locked doors and windows in her home, fear that bad things will happen to her family, and difficulties falling asleep and waking up. See June 2018 CAPRI. In his December 2018 private opinion, Dr. E.E.L. notes his treatment of the Veteran since May 2011 and a diagnosis of bipolar affective disorder type I and PTSD with current biweekly treatments. Dr .E.E.L. reports that following the Veteran’s October 2017 hospitalization, the Veteran continued to struggle with issues of depression, anxiety, and anger despite medications. The Veteran also exhibited continued symptoms of irritability, confusion of thought, emotional dyscontrol, poor sleep with nightmares, and fleeting suicidal ideations. Dr. E.E.L. also states these symptoms interfered with the Veteran’s ability to work and function at home. These symptoms include disorganization and mood, discomfort around people, constant hypervigilance with paranoia, and difficulties adapting to stressors and life changes. He indicates the Veteran’s symptoms were often debilitating. Dr. E.E.L. concludes the Veteran was desirous of functioning well and her symptoms had fluctuations of improvement but that it would be difficult to re-enter the workforce in any capacity at such time and maintain a high level of functioning. See January 2019 Medical Treatment Record. A January 2019 VA treatment record reflects the Veteran’s complaints for depression, isolation, and poor motivation. The Veteran denied suicidal ideations. Based on the foregoing evidence, the Board finds that the functional impairment resulting from the Veteran’s bipolar disorder most closely approximates the criteria for a 70 percent disability rating and does not rise to the severity required for a 100 percent rating. Throughout the period, the Veteran variously endorsed suicidal ideations, obsessional rituals which interfered with activities, difficulty in adapting to stressful circumstances, and the inability to establish and maintain effective relationships. Although she reported a strained relationship with her husband, she has maintained a working relationship with her daughters, sister-in-law, father, and at least three of her friends. Furthermore, the Veteran was shown to be functional in a work-like setting at the Department of State at least up until 2017. The Board finds that the evidence is against assigning a 100 percent rating for the Veteran’s bipolar disorder. She has not had symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place or memory loss for names of close relatives; own occupation or own name; or symptoms of a similar nature, severity, of frequency. Despite having reported two instances of visual hallucinations of blood, a notation as a danger to self and others in a July 2014 VA treatment record, and various suicidal ideations; these symptoms do not rise to a level warranting a 100 percent rating disability as there is no indication of persistent hallucinations or persistent danger of hurting self or others. Further, in reviewing the evidence as a whole, the Board finds that total social and occupational impairment has not been shown in this case. The Board observes that VA examination reports, as well as private treatment records, do not indicate any evidence of total occupational and social impairment. While a health care provider’s characterization of the severity of disability is not dispositive absent corroborating symptomatology, it is probative evidence that the Board may take into consideration. Here, the evidence shows that the Veteran is still married with children and has a working relationship with her in-laws, father, and friends. With regard to occupational impairment, the Veteran currently has a TDIU and is unable to be gainfully employed, from March 31, 2018, the day following her last day of employment with the Department of State. See January 2019 Rating Decision. The Veteran has asserted that her psychiatric condition significantly impacts her occupational functioning; she reported that her condition makes her position as an HR specialist stressful and that her depression, anxiety, panic attacks, and anger make it difficult to return to work at a high functioning rate. In December 2018, Dr. E.E.L. advised against the Veteran returning to work at such time due to her psychiatric state and long battle with symptoms, but also noted fluctuations with improvement. As such, total occupational impairment due solely to her psychiatric condition is not shown for the entire period on appeal. Accordingly, while the Veteran has shown substantial social and occupational impairment, the evidence does not demonstrate total social and occupational impairment. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against assigning a rating higher than 70 percent for the Veteran’s acquired psychiatric disability, the doctrine is not for application. See 38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to TDIU prior to March 31, 2018 is remanded. The matter of entitlement to a TDIU rating is for consideration throughout the appeal period from July 31, 2014, the date of receipt of the Veteran’s claim for increased rating for her bipolar disorder. Although the Veteran filed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability (TDIU claim/Application), seeking a TDIU rating in July 2018, she claimed that her service-connected psychiatric disorder prevented her from securing any substantially gainful occupation. In a January 2019 rating decision, TDIU was granted from March 31, 2018. Notwithstanding her formal TDIU claim, the matter of the Veteran’s entitlement to a TDIU may be considered a component of an increased rating claim when such is expressly raised by the Veteran or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, while the Veteran formally claimed TDIU by means of her July 2018 application, the evidence received in conjunction with her claim for an increased rating for bipolar disorder raises the issue of entitlement to TDIU, thereby triggering the application of Rice. Although the Veteran’s TDIU application reflects her last full-time position in 2017 at the Department of State as an HR specialist, a December 2018 Request for Employment Information record reflects employment as a real estate agent from April 2018 to August 2018, but the Veteran did not receive income due to her inability to complete tasks as a result of her medical condition. The November 2014 VA examiner did not opine on the functional impact of the Veteran’s psychiatric disorder in an occupational setting. The January 2017 VA examiner noted the Veteran’s occupational/social functioning improved somewhat due to the ability to remain employed for the past two years and completion of her undergraduate degree. As noted above, the December 2017 and December 2018 private opinions from Dr. E.E.L suggest following the Veteran’s October 2017 in-patient hospitalization for stress and post outpatient treatments, the Veteran’s continued symptoms of anxiety, depression, and inability to adapt to stressors and life changes with fluctuations of improvement render her incapable of functioning and reentering the workforce in any capacity at a high level at such time. The Board finds the December 2017 and 2018 private opinions are insufficient to determine the Veteran’s employability prior to March 31, 2018. Dr. E.E.L.’s opinions suggest that the Veteran’s unemployability is due to worsened symptoms following her October 2017 in-patient hospitalization for stress but also suggest that there is room for improvement based on fluctuations of her symptoms. As stated above, the Veteran is in receipt of a TDIU from March 31, 2018, the date following the last day she was gainfully employed. As there is insufficient information addressing the Veteran’s occupational impairment/limitation due to her service-connected disabilities prior to March 31, 2018, such must be obtained on remand. The matters are REMANDED for the following actions: 1. Forward the claims file and a copy of this REMAND to an appropriate clinician(s) for an opinion(s) concerning the occupational impact of the Veteran's service-connected disabilities prior to March 31, 2018. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician(s) is asked to state the occupational impact of each of the Veteran’ service-connected disabilities: bipolar disorder, lumbar strain, and lumbar radiculopathy of the left lower extremity. A rationale should be provided for any opinion(s) expressed. 2. Readjudicate the Veteran’s claim on appeal. If the benefit sought on appeal remains denied, provide the Veteran and her representative a supplemental statement of the case and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Asfaw, 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.