Citation Nr: 21000905 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-18 172 DATE: January 6, 2021 ORDER An initial rating of 100 percent for bipolar disorder with posttraumatic stress disorder (PTSD) is granted, effective July 7, 2003, subject to the regulations governing the award of monetary benefits. An earlier effective date of July 7, 2003, for the grant of basic eligibility to Chapter 35 Dependents’ Educational Assistance (DEA) benefits is granted. An effective date earlier than August 31, 2015, for the grant of a total disability rating based upon individual unemployability (TDIU) is dismissed. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s bipolar disorder with PTSD has been productive of total occupational and social impairment due to such symptoms as grossly inappropriate behavior, gross impairment in thought processes or communication, the intermittent inability to perform activities of daily living, and chronic suicidal thoughts. 2. The Veteran was permanently and totally disabled from July 7, 2003; there is no evidence that he ever sought such benefits, had permanent total service-connected disability, or was otherwise eligible for DEA benefits prior to such date. 3. Prior to August 31, 2015, the Veteran’s bipolar disorder with PTSD is his only service-connected disability. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for a 100 percent rating for bipolar disorder with PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411-9432. 2. For the entire appeal period, the criteria for basic eligibility to DEA benefits have been met. 38 U.S.C. §§ 3501, 5107, 5110; 38 C.F.R. §§ 3.400, 3.807. 3. The grant of a total (100 percent) disability rating for bipolar disorder with PTSD renders moot the appeal for an earlier effective date for the award of a TDIU. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps Reserve. He had initial active duty for training from June 1964 to December 1964; the Board of Veterans’ Appeals (Board) granted service connection for the above psychiatric disorder based on that service. He had additional Reserve service through November 1967. These matters come before the Board on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). That rating decision was issued subsequent to a November 2014 Board decision which granted service connection for the Veteran’s acquired psychiatric disorder; the RO effectuated the Board’s decision in a December 2014 rating decision, assigning an initial 50 percent rating, effective July 7, 2003 (the date of the Veteran’s informal claim for disability compensation). The Board remanded the matters on appeal for further evidentiary development in May 2018 and again in January 2020. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In its January 2020 remand, the Board explained that the Veteran had submitted a written statement in October 2015 which constituted a notice of disagreement (NOD) with respect to the initial 50 percent rating assigned for his acquired psychiatric disorder in the December 2014 rating decision. However, the RO had not at that time issued a Statement of the Case (SOC) adjudicating his appeal of the initial rating. The Board remanded that issue to the RO for issuance of a SOC pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). Thereafter, the RO issued a rating decision in April 2020 granting an earlier effective date of April 15, 2011, for the award of a 100 percent rating for the Veteran’s bipolar disorder with PTSD. Simultaneously, the RO issued an SOC, pursuant to the January 2020 Board remand, which denied entitlement to an initial rating in excess of 50 percent for that disorder prior to April 15, 2011. It does not appear the Veteran filed a timely VA Form 9 in response to the April 2020 SOC; the record includes a VA Form 9 submitted in April 2020, prior to the issuance of the SOC, as well as a second VA Form 9 (and many subsequent copies thereof) dated in September 2020; however, no VA Form 9 was received within 60 days of the SOC. Notwithstanding, the Veteran submitted a statement in May 2020 noting his uncertainty as to the status of his appeal (he acknowledged that he had received a partial award of benefits but was unclear as to whether he had “won” his appeal), as well as numerous other statements reflecting his belief that his psychiatric symptoms warranted a 100 percent rating beginning in July 2003. Moreover, the Board mailed the Veteran a letter in August 2020 notifying him that his appeal had been returned to the Board for review, and internal VA records show that the Board has docketed the issue of entitlement to an increased initial rating for the Veteran’s bipolar disorder with PTSD. The absence of a timely substantive appeal, as opposed to an NOD, is not a bar to the Board’s jurisdiction; the Board can implicitly or explicitly waive the issue of timeliness with regard to a substantive appeal. See Percy v. Shinseki, 23 Vet. App. 37, 41 (2009). In this case, under the circumstances described above, the Board finds that the lack of a timely VA Form 9 filed in response to the April 2020 SOC adjudicating the issue of entitlement to an increased initial rating for bipolar disorder with PTSD does not preclude the Board’s jurisdiction. Claims on Appeal 1. Entitlement to an initial rating in excess of 50 percent, prior to April 15, 2011, for bipolar disorder with PTSD The Veteran’s bipolar disorder with PTSD is rated as 50 percent disabling prior to April 15, 2011, and 100 percent disabling thereafter. He contends that a 100 percent rating is warranted for the entire appeal period. Disability evaluations 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 his 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. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. Although the Veteran’s symptoms are rated under DC 9411-9432, all psychiatric disorders (other than eating disorders) are evaluated under a General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, a 70 percent rating requires a showing of 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. Id. A maximum schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the phrase “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. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the frequency and severity of his current symptomatology that is observable to the senses. See Layno v Brown, 6 Vet. App. 465, 470 (1994). Additionally, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). After reviewing the evidence of record, the Board finds that the Veteran’s bipolar disorder with PTSD has been productive of symptoms so disabling as to warrant the assignment of a 100 percent rating for the entirety of the appeal period—i.e., since the filing of the Veteran’s July 2003 informal claim. Since that time, the Veteran’s symptoms have included suicidal ideations with multiple suicide attempts, violent urges and threatening behavior, episodes of severe depression and psychosis resulting in the inability to perform the activities of daily living, and generally inappropriate behavior. The Veteran has been hospitalized multiple times during the appeal period. In February 2004, private hospital records reflect that he was brought to an emergency care center via a police pickup order; the Veteran’s family and treating psychiatrist had requested the order due to the Veteran’s “psychotic behaviors” and “recent decompensation.” It was noted at that time that the Veteran had been mailing threatening letters in an attempt to “get even with a lot of people.” The Veteran’s family members further reported that an argument led to the Veteran throwing plates and becoming extremely verbally abusive towards his wife; thereafter, he locked himself in his room and had not eaten for the past eight days. The Veteran’s son reported that the Veteran had been admitted “approximately 8-9 times” to various hospitals over the years. Clinical notes reflect that, on admission, the Veteran presented with inadequate hygiene and was lying flat on a stretcher with eyes closed, refusing to respond to any verbal stimuli. In February 2006, the Veteran was hospitalized again after being brought in by a law enforcement officer who picked the Veteran up on the roadside. Clinical notes reflect that the Veteran’s family reported that the Veteran had suicidal ideations. The record also includes numerous letters from private care providers attesting to the Veteran’s mental health problems during the period on appeal. These include an August 2003 letter from his treating psychiatrist which describes a history of anxiety, psychotic depression, and PTSD; the letter notes that the Veteran’s condition was “severe,” and that he had “not been particularly responsive to treatment, including a wide variety of medications and [electroconvulsive therapies].” A November 2003 letter from a clinical nursing specialist indicates that, after several years of treatment, the Veteran remained “severely and chronically affected” by bipolar disorder with psychotic depression and panic disorder with agoraphobia; the provider noted that these disorders likely stemmed from a complex interaction of biological predisposition and a history of emotional and physical abuse while serving in the Marine Corps. In September 2007, the Veteran’s psychiatrist wrote that the Veteran was “functionally disabled and has no social contact outside of a few family members.” In August 2009, the same psychiatrist wrote that the Veteran remained “significantly impaired by his mental illness” and had “required hospitalization on several occasions.” In addition, multiple letters from care providers reflect that various medications which have been used, in part, to treat the Veteran’s psychiatric symptoms resulted in cognitive impairment as well as physical limitations. For example, a private physician’s letter dated in May 2003 noted that the Veteran presented with medication-induced tardive dyskinesia, causing involuntary movements. In April 2011, the Veteran was afforded a VA PTSD examination, which revealed a disability picture consistent with total occupational and social impairment. The report noted that the Veteran had a history of hospital admissions, including for electroshock therapy; that he had attempted suicide numerous times; that he would engage in inappropriate behavior, including refusing to speak or even eat for long periods; that he had thoughts of killing his daughter’s boyfriend; and that his activities were severely limited by episodes of panic and periods of depression, during which he stopped all self-care. This examination report was the basis for the RO’s ultimate assignment of a 100 percent rating; however, the Board finds no reason to conclude, based on the general disability picture portrayed by the evidence discussed above, that it marks the exact date on which the Veteran’s bipolar disorder with PTSD became totally disabling. The Board notes that the Veteran’s initial 50 percent rating appears to rest, at least in part, on a July 2009 VA mental disorders examination report, which noted minimal symptoms and concluded that the Veteran did not have any psychiatric diagnoses. The Veteran has vehemently disputed the accuracy of this report, and the Board agrees that its findings are less than convincing. The report disregards the Veteran’s long history of destructive behaviors, including repeated hospitalizations, and makes no attempt to reconcile his history of psychiatric treatment. Much more probative are the numerous clinical records, correspondence from the Veteran’s care providers, and the Veteran’s own lay statements, which collectively describe a long history of debilitating mental illness dating back to VA’s receipt of the Veteran’s claim in July 2003. In sum, the Veteran’s bipolar disorder with PTSD has clearly been shown to be productive of total occupational and social impairment throughout the appeal period. Moreover, there is no probative evidence demonstrating that his symptomatology has drastically changed over the course of his appeal. Given the extensive, consistent, and debilitating social and occupational impairment described above, the Board finds that the Veteran’s psychiatric symptoms more nearly approximate the criteria for a 100 percent rating since the filing of his July 2003 claim. See 38 C.F.R. §§ 4.7, 4.130. Accordingly, a total rating is assigned for the duration of the period under review. 2. DEA benefits prior to April 15, 2011 Basic eligibility for DEA benefits arises if a veteran is discharged from service under conditions other than dishonorable and has a permanent and total service-connected disability. 38 U.S.C. § 3501; 38 C.F.R. § 3.807. “Total” disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a). Permanence of disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). The term “total disability permanent in nature” for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based on an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501(a)(7). In this case, the Veteran was awarded DEA benefits, effective April 15, 2011, in an April 2020 rating decision based on the concurrent award of a 100 percent rating for bipolar disorder with PTSD. Because the Board has found that the criteria for a 100 percent rating were met as of July 7, 2003, entitlement to an earlier effective date for DEA benefits is likewise warranted. As discussed above, the evidence reflects that the Veteran’s bipolar disorder with PTSD has rendered him totally and permanently disabled for the duration of the appeal period. As such, basic eligibility for DEA benefits is granted, effective July 7, 2003. 3. TDIU prior to August 31, 2015 A TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In this case, the Board has awarded a 100 percent schedular rating for the Veteran’s bipolar disorder with PTSD from July 7, 2003. The Board finds that the grant of a total rating for this disorder, which results in the Veteran having a “total” (100 percent) rating for the entire rating period, renders the TDIU claim moot, and therefore it must be dismissed. See Green v. West, 11 Vet. App. 472, 276 (1998) (holding that, if a 100 percent schedular rating is granted, a veteran is not also entitled to TDIU for the same period). The Board is cognizant of the decision of the United States Court of Appeals for Veterans Claims (Court) in Bradley v. Peake, 22 Vet. App. 280 (2008), in which the Court held that a situation may arise where a veteran has a schedular total rating for a particular service-connected disability, but could nevertheless establish a TDIU rating for other service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114(s) by having an additional disability of 60 percent or more. See Bradley v. Peake, 22 Vet. App. 280 (2008); 38 U.S.C. § 1114(s). Thus, per Bradley, in certain situations, a TDIU claim may not be rendered moot even where, as here, a total disability evaluation is assigned for a given disability for the entire period on appeal. However, having reviewed Bradley, the Board concludes that the facts of that case are sufficiently distinguishable from the facts of this one, rendering the Bradley holding inapplicable. Specifically, the Veteran in Bradley was in receipt of a 100 percent schedular rating for service-connected disabilities other than his PTSD, which was rated as 70 percent disabling. In contrast, the Veteran in this case is not in receipt of any other service-connected disabilities prior to the effective date of his award of TDIU. There is, therefore, no basis for a finding of TDIU based on service-connected disabilities other than bipolar disorder with PTSD (for which, again, a 100 percent rating is already in effect). As such, the Board finds Bradley inapplicable, and the grant of a total schedular rating for bipolar disorder with PTSD renders the claim for an earlier effective date for the grant of TDIU moot. Kate E. Kovarovic Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Minot, 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.