Citation Nr: 21070270 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-55 395 DATE: November 23, 2021 ORDER Entitlement to an increased rating for bipolar disorder, currently rated as 30 percent disabling from January 27, 2016, to May 12, 2021, and 50 percent disabling from May 12, 2021, is denied. REMANDED Issue of entitlement to service connection for fibromyalgia is remanded. Issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the period from January 27, 2016, to May 12, 2021, the Veteran's bipolar disorder had manifested with symptoms such as anxiety, depressed mood, mild memory impairment, rare or brief instances of problems with her thought process or judgment when under increased stress, but with normal speech, appropriate grooming and dress, generally fair or good judgment and insight, good relationships with at least her family, and the ability to enjoy hobbies and crafts. 2. For the period since May 12, 2021, the Veteran's bipolar disorder has manifested with symptoms such as depressed mood, anxiety, chronic sleep impairment, mild memory impairment, flattened affect, impaired judgment, disturbances of mood and motivation; but that she has normal speech, appropriate grooming/hygiene, no problems with suicidal ideation, able to handle increase stress, and has a good and stable relationship with her family. CONCLUSION OF LAW The criteria for entitlement to an increased rating for bipolar disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9432. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 2001 to September 2003. This appeal to the Board of Veterans' Appeals (Board) arose from merged appeals of the March 2017 and June 2017 rating decisions issued by the Department of Veterans Affairs (VA). See June 2017 Notice of Disagreement (NOD); July 2017 NOD; October 2017 Statement of the Case (SOC); October 2017 SOC; October 2017 Substantive Appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in a November 2020 hearing. See November 2020 Hearing transcript. The Veteran's spouse also testified at the hearing. See id. In February 2021, the Board remanded the claims for further development, including a VA examination to evaluate the current severity of the Veteran's bipolar disorder. February 2021 Board Decision. The agency of original jurisdiction (AOJ) developed the evidence and continued the denial of the above claims. See July 2021 Supplemental Statement of the Case. The Board notes that the AOJ granted the Veteran's claim of entitlement to service connection for a migraine condition. July 2021 Rating Decision. As this is the full benefit sought on appeal, this issue is no longer before the Board. Entitlement to an increased rating for bipolar disorder, currently rated as 30 percent disabling from January 27, 2016, to May 12, 2021, and 50 percent disabling from May 12, 2021 As an initial matter, the Board finds that the AOJ has substantially complied with the February 2021 Board remand directives that pertain to the issue of entitlement to an increased rating for bipolar disorder. The Veteran asserts that the symptoms from her service-connected bipolar disorder more closely resembles the criteria for a 70 percent rating. July 2017 NOD. The Veteran testified that she has had trouble working at jobs that require interacting with people. November 2020 Hearing Transcript. She does not like crowds and is hypervigilant, and she feels her symptoms more closely resemble a 100 percent rating when she has severe bipolar disorder episodes, which include periods she cannot bathe, cook, or clean. Id. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. See 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service connected disability exhibited symptoms that would warrant different ratings. The Board has considered the entire record, but only the evidence pertinent to the rating criteria and current disability will be discussed. See Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran's bipolar disorder is currently evaluated under Diagnostic Code 9432 and is rated as 30 percent disabling from January 27, 2016, to May 12, 2021, and 50 percent disabling from May 12, 2021. See July 2021 Rating Decision. Under Diagnostic Code 9432 and the General Rating Formula for Mental Disorders, 30 percent is warranted for a mental disorder that manifests with 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). 38 C.F.R. § 4.130. The next higher rating of 50 percent is warranted with 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. The next higher rating of 70 percent is warranted with 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; intermittently illogical, obscure, or irrelevant speech; 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); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation is assignable where 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. Id. When evaluating a mental disorder, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. 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. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. After careful and thorough review of the evidence, the Board finds that the Veteran's bipolar disorder does not warrant more than a 30 percent rating for the period from January 27, 2016, to May 12, 2021, or more than a 50 percent rating since May 12, 2021. Medical treatment evidence during the period prior to May 12, 2021, is against finding that the Veteran's bipolar disorder warrants more than a 30 percent rating. The Veteran was noted to have problems with memory and depression but was also generally found to have normal mental status examinations, including being appropriately dressed and groomed, normal speech, coherent thought process, and with no suicidal ideation. See, e.g., April 2017 VA treatment evidence; August 2018 VA treatment evidence; February 2019 VA treatment evidence; May 2021 VA treatment evidence. In 2019 and 2020, the Veteran reported having increased stress due to family issues and her treatment providers noted brief problems with her mood, having circumstantial thought process, and poor insight and judgment, but there was no evidence irregular speech, panic attacks, or impairment of her short and long-term memory. See November 2019 VA treatment evidence; February 2020 VA treatment evidence; May 2021 VA treatment evidence. The Board recognizes that the Veteran had a one day involuntary admission in September 2019 based on her and her spouse's report that she was hitting herself. See September 2019 VA treatment evidence. Her treatment provider noted that she did not meet the criteria for a psychiatric hold, and she was released the next day with findings of anxious and depressed mood, low motivation, and normal mental status examination findings otherwise. Id. The Board finds that the Veteran's brief one-day psychiatric admission in 2019 does not accurately depict her overall disability picture. The medical treatment evidence prior to May 2021 overall shows only evidence of anxious or depressed mood and mild memory loss, with findings that she is coherent, has normal thought process, appropriate grooming, normal speech, generally fair or good insight and judgment, and being able to care for herself and her family, including a sick child and father. The Board also considered the July 2017 neuropsychological evaluation by private medical treatment providers C C, Ph.D. and J S Ph.D., ABPP-CN. The evaluation found the Veteran to have intact cognition, average general intelligence, intact attention/information processing speed, and intact executive functioning. Id. She was noted to have variable scoring with the memory testing, likely due to her mental health symptoms and fatigue, but with generally average or above average memory. See id. The evaluation also noted a history of emotional lability and volatility, but that more recently she has had stable relationships and functioning and engaged in enjoyable and meaningful hobbies and other daily tasks. See id. The Board finds that the July 2017 neuropsychological evaluation is against finding that the Veteran's bipolar disorder warrants more than a 30 percent rating. The Veteran was also afforded a May 2016 VA examination for mental disorders. The VA examiner opined that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Id. This equates to a 10 percent rating under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. The examiner found only symptoms of depressed mood and anxiety. Id. However, under "Remarks" the examiner noted evidence of a pervasive pattern of unstable and intense interpersonal relationships, impulsivity, recurrent suicidal behaviors and gestures, affective instability, frequent intense anger, and unstable self-image, but attributable to borderline personality disorder and not bipolar disorder diagnosis. The VA examiner opined that bipolar disorder does not seem to be the most appropriate diagnosis and believes the Veteran's symptoms are better attributed to borderline personality disorder which is not related to service. Id. The VA examiner is a medical professional qualified to evaluate the Veteran's mental disorder, but the finding that the Veteran only has symptoms of depressed mood and anxiety is inconsistent with the other symptoms noted under "Remarks." In addition, based on the other medical evidence of record and resolving any reasonable doubt in favor the of the Veteran, the Board finds that the Veteran does have a current disability of bipolar disorder. For these reasons, the Board finds the May 2016 VA examiner's opinions and findings to not be probative. The Board considered the Veteran and her spouse's lay statements. While the Veteran is competent to report his mental health symptoms, he is not competent to state whether his symptoms warrant a specific rating under the Schedule for Rating Disabilities. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Her lay statements that she believes her bipolar disorder warrants a 70 or 100 percent rating are not probative in evaluating her symptoms. See July 2017 NOD; November 2020 Hearing Transcript. While the Board does not doubt that the Veteran experiences "highs" and "lows" and has periods in which she has trouble performing her activities of daily living, the medical evidence supports that these are either rare or brief instances during the period on appeal prior to May 12, 2021. The Board also notes that the Veteran and her spouse testified that the September 2019 involuntary hospitalization was a mistake, and she was only seeking someone to talk to about something that happened several days prior. Id. The Board finds that the lay evidence supports that the Veteran continues to have mental health symptoms, but it is less probative in determining the severity and corresponding disability rating. For the period on appeal prior to May 12, 2021, the more probative evidence of record supports that the Veteran's bipolar disorder had manifested with symptoms such as anxiety, depressed mood, mild memory impairment, rare or brief instances of problems with her thought process or judgment when under increased stress, but with normal speech, appropriate grooming and dress, generally fair or good judgment and insight, good relationships with at least her family, and the ability to enjoy hobbies and crafts. The Board finds this evidence highly probative against finding that the Veteran's bipolar disorder warrants more than a 30 percent rating for the period from January 27, 2016, to May 12, 2021. The Board also finds that the preponderance of the evidence is against finding that the Veteran's bipolar disorder warrants more than a 50 percent rating since May 12, 2021. In May 2021, the Veteran reports increase stress due to family issues, but that she denied any issues with anger, irritability, or anxiety. May 2021 VA treatment evidence. She denied being depressed, having issues with sleep or suicidal ideation, and only felt "melancholy" due to the increased stress. Id. Later treatment record indicate that the Veteran continued to stay compliant with her medications and no further complaints to her treatment providers. See July 2021 VA treatment evidence. This evidence is against finding that the Veteran's bipolar disorder warrants a rating higher than 50 percent. The Veteran was afforded a July 2021 VA examination for mental disorders. The VA examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity, which would be correspond to a 50 percent rating under the General Rating Formula for Mental Disorders. See id. The VA examiner found evidence of depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances of mood and motivation, difficulty adapting to stressful circumstances, suicidal ideation, and neglect of personal appearance and hygiene. Id. However, these findings appear to be based on the Veteran's reported history of having "episodes" of increased symptoms. She reported neglecting her personal appearance and racing thoughts during these episodes. Id. The Veteran also report that she previously participated in self-harm behavior during episodes in the past, but not in the last few years. Id. The VA examiner's review of her current treatment records and history indicates that she has had "notable improvement" and her episodes of mood instability have resolved. Id. The Veteran reports that she is currently caring for her father, who had a medical illness a few months prior to the examination. Id. While the Board finds the July 2021 VA examiner's findings to be largely probative, the findings of suicidal ideation, neglect of personal appearance and hygiene, and difficulty adapting to stressful circumstances appear to not be based on the Veteran's symptoms since May 12, 2021, or even since January 27, 2016, based on her report to the VA examiner and treatment records. Those findings are, thus, not probative in evaluating the Veteran's bipolar disorder during the period on appeal. The Board considered whether the Veteran and her spouse's lay statements. As discussed above, the Veteran's statements that her bipolar disorder symptoms warrant a specific rating are not probative. Buchanan, 451 F.3d at 1337; Jandreau, 492 F.3d at 1376-77. Their statements about the Veteran having periods or episodes of highs and lows are either rare, brief, or were prior to May 12, 2021. The Board finds the lay evidence to not be probative for this reason. The Board also considered the representative's contention that the treatment records from Drs. C C and J S support entitlement to a higher rating. See October 2017 VA Form 9. As discussed above, the July 2017 neuropsychological evaluation supports that the Veteran has intact cognition, average general intelligence, intact attention/information processing speed, and intact executive functioning, some memory impairment, and stable relationships and functioning. The Board finds that the treatment records from Drs. C C and J S do not support a rating higher than 30 percent is warranted. In resolving any reasonable doubt in favor of the Veteran, the evidence supports that, since May 12, 2021, the Veteran's bipolar disorder has manifested with symptoms such as depressed mood, anxiety, chronic sleep impairment, mild memory impairment, flattened affect, impaired judgment, disturbances of mood and motivation; but that she has normal speech, appropriate grooming/hygiene, no problems with suicidal ideation, able to handle increase stress, and has a good and stable relationship with her family. Accordingly, entitlement to a rating higher than 50 percent for the period since May 12, 2021 is not warranted. REASONS FOR REMAND 1. Issue of entitlement to service connection for fibromyalgia is remanded. The Board cannot make a fully informed decision on the issue of entitlement to service connection for fibromyalgia because clarification is needed from a VA examiner. The July 2021 VA examiner opined that the Veteran's fibromyalgia is less likely than not incurred in or caused by service. July 2021 VA Examination Medical Opinion. The VA examiner's rationale is that the Veteran complained of muscle pain during service, but a service connection "cannot be made due to lack of specific evidence in records of service origin." Id. However, the VA examiner did not provide an explanation as to what specific evidence was lacking in the service treatment records. There is also no explanation as to why the evidence of muscle pain during service is at least as likely as not linked to the current evidence and diagnosis for fibromyalgia. The VA examiner also considered that the Veteran had reported an onset of fibromyalgia four years after separation as part of the rationale. Id. The Board notes that while this can be a consideration because the Veteran is able to report the onset of symptoms, she is not qualified to opine on the cause of pain. This includes whether or not the pain she experienced in service was fibromyalgia. The Board finds that an addendum opinion from a VA examiner is needed. 2. Issue of entitlement to a TDIU is remanded. As a decision on the remanded issue of entitlement to service connection for fibromyalgia can significantly impact the issue of entitlement to a TDIU, the issues are intertwined. A remand for this issue is, thus, required. The matters are REMANDED for the following action: 1. Obtain an opinion regarding the Veteran's fibromyalgia. The medical professional should respond to the following: (a) Is it at least as likely as not that the Veteran's fibromyalgia began in (or is otherwise related to) the Veteran's military service? The medical professional should specifically address the Veteran's complaints of hip pain in April 2001, abdominal pain in July and November 2002, and right forearm pain in January 2003. A rationale is needed. The examiner should consider and discuss the Veteran's lay testimony and assertions regarding any pertinent complaints and symptoms, including her testimony during the November 2020 Board hearing that her doctor had said her symptoms during service are similar to her current symptoms. A rationale is requested. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lin 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.