Citation Nr: 21072130 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-01 694 DATE: December 2, 2021 ORDER Entitlement to an initial rating of 70 percent, but no higher, for bipolar disorder is granted effective February 15, 2013, to December 23, 2019. Entitlement to an initial rating in excess of 70 percent for bipolar disorder since December 24, 2019 is denied. FINDINGS OF FACT 1. From the date of the Veteran's claim on February 15, 2013, his bipolar disorder caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. At no point during either appeal period does the Veteran's bipolar disorder cause total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent rating, but no higher, for bipolar disorder are met from February 15, 2013, to December 23, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.126, 4.130, Diagnostic Code (DC) 9432. 2. The criteria for a rating in excess of 70 percent from December 24, 2019 and thereafter, for bipolar disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, DC 9432. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1983 to January 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in July 2021 the Veteran's claims for entitlement to an initial rating in excess of 50 percent for bipolar disorder prior to December 24, 2019 and entitlement to an initial rating in excess of 70 percent for bipolar disorder since December 24, 2019 were remanded by the Board for further development. The claims were specifically remanded in order for the AOJ to undertake appropriate development to obtain an October 2012 admission record related to psychiatric hospitalization due to suicidal ideation from Gadsden Regional Medical Health center. That development has been accomplished, and the claim has now been returned to the Board for further action. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. The percentage ratings are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107 (a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). In general, the degree of impairment resulting from a disability is a factual determination and the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. §§ 4.3, 4.7. Otherwise, the lower rating will be assigned. Id. The Veteran's bipolar disorder is rated under 4.130, Diagnostic Code 9432. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 50 percent rating is provided for 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is provided for 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is provided for 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, DC 9412. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA 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. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA 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). A veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the presence of the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-118 (Fed. Cir. 2013). In addition to requiring the presence of the enumerated symptoms, 38 C.F.R. § 4.130 also requires that those symptoms have caused the specified level of occupational and social impairment. Id. However, the factors listed in the rating schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating, so the determination should not be limited solely to whether a veteran exhibited the symptoms listed in the rating scheme, but should also be based on all of a veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-443 (2002); 38 C.F.R. § 4.126(a). It is error where the Board fails to assess adequately evidence of a sign or symptom experienced by the veteran, misrepresents the meaning of a symptom, or fails to consider the impact of the veteran's symptoms as a whole. However, the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria, including suicidal ideation, is not necessarily dispositive of any particular disability level. Bankhead v. Shulkin, 29 Vet. App. 10, 25 (2017). 1. Entitlement to an initial rating in excess of 50 percent for bipolar disorder prior to December 24, 2019 The Veteran is currently in receipt of a 50 percent disability rating for bipolar disorder effective February 15, 2013, and in receipt of a 70 percent disability rating for bipolar disorder effective December 24, 2019 pursuant to Diagnostic Code 9432. The Veteran asserts that he is entitled to higher ratings during both parts of the appeal period. Specifically, the Veteran through his representative notes that in a December 2015 statement, the Veteran indicated that he had suicidal thoughts, but was afraid to tell the psychiatrist for fear of being committed. As such, the Veteran asserts that a lack of consideration to the fact that he was indeed experiencing suicidal ideations was a basis for the AOJ denying a higher rating and this symptom was therefore not properly considered in the criteria for an increased rating. See Appellate Brief Received November 2021. See also Appellate Brief Received May 2021. The Veteran also asserted that his bi-polar disorder has progressively gotten worse and includes symptoms of fatigue, agitation, difficulty of concentrating and focus and chronic insomnia. See Appellate Brief Received March 2019. The Veteran's post service treatment records from Gadsden Regional Medical Center provide information that is pertinent to the symptoms that the Veteran experienced in connection with his service-connected bipolar disability. See Medical Treatment Records Received July 2021. An October 2012 report noted that the Veteran's chief complaint was suicidal ideations. The record notes that the Veteran was brought to the emergency room because he was not taking his medication and was getting manic. It was noted that the Veteran was not sleeping well, his energy level was high, his concentration and appetite were both noted as poor. It was noted that the associated signs and symptoms included positive signs for depression. It was also noted that the Veteran said that he's been diagnosed with manic depression. Additionally, it was noted that the Veteran was on and off his medications and the side effects of missing doses were very bad. It was further noted that due to financial reasons, he couldn't always afford his medications, so he weened himself off of his medication. Moreover, it was noted that the Veteran stated that he does not want to hurt others and really does not want to hurt himself, but prays every night that he does not wake up. It was also noted that the Veteran has been in a downward spiral for two months and does not want to live anymore. Id. The October 2012 report also noted that the Veteran has a long history of bipolar disorder with an initial diagnosis in 1987. It was noted that the Veteran described very clear episodes of mania and depression. It was also noted that the manic episodes tend to occur and last for a period of about two to four weeks and they alternate with depressive episodes which last about the same amount of time. The treating physician noted that the Veteran was on bipolar medications and in recent weeks had been on a monster downward spiral. Moreover, it was noted that the Veteran had some suicidal ideation, but says he would never act on it. The Veteran was noted to be working as a maintenance man. Id. The Veteran's post service treatment records include positive and negative screens for thoughts regarding suicidal ideations. A March 2013 treatment record states that the Veteran's estimated suicide risk level is low. See CAPRI treatment records received in November 2013. Another treatment record states that the Veteran was admitted for suicidal ideations related to his bipolar disorder in October 2012. A May 2013 treatment record states that the Veteran was feeling depressed and having a lot of irritability and his wife was concerned about him. It was also revealed that the Veteran was having financial problems and was feeling rejected and like a failure. Id. Another May 2013 treatment record states that the Veteran's wife feels that when she offers constructive input, the Veteran tends to interpret this negatively. Additionally, it was noted that the Veteran remains frustrated with his current job as cable installer but has not been able to find suitable employment elsewhere. Additionally, May 2013 treatment records states that the Veteran was reported to be verbally abusive. See CAPRI treatment records received November 2013. A May 2018 treatment note indicates that the Veteran has bipolar disorder and is under a lot of stress of a psychosocial nature. It was further noted that the Veteran reported having anxiety and restlessness, low mood, insomnia and a negative attitude. See CAPRI treatment records Received November 2019. The Veteran was afforded a Disability Benefits Questionnaire (DBQ) VA examination to assess his mental health condition in January 2014. The examiner stated that the Veteran did not have a diagnosis of PTSD that conforms to the DMS-5 criteria but instead diagnosed bipolar disorder. The examiner indicated that the Veteran experienced occupational and social impairment with reduced reliability and productivity. The examiner also noted that the Veteran has worked in construction since he came out of the military and has worked for himself from 1998 until the present with no significant occupational problems reported. The examiner also noted that the Veteran graduated from high school. During the examination the Veteran reported that he saw a psychiatrist and was diagnosed with manic depression. He stated that he was recommended for alcohol rehabilitation but never attended; it was noted that he got mad at the psychiatrist for asking personal questions and left and did not return after one visit. Moreover, during the examination, the examiner reported that he was hospitalized for psychiatric hospitalization in 2012 due to suicidal ideations. The examiner also indicated that the Veteran experiences symptoms including depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. VA obtained an addendum opinion in June 2014 in which the examiner was opined that it is more likely than not that the Veteran's bipolar disorder is a progression of the complaints noted during military service. Based on the above, the Board finds that the evidence supports the assignment of an initial 70 percent rating for bipolar disorder, beginning February 15, 2013. The United States Court of Appeals for Veterans Claims has noted that the language of 38 C.F.R. § 4.130 indicates that "the 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 v. Shulkin, 29 Vet. App. 10, 20 (2017). Here, the medical and lay evidence including post service treatment notes and examinations detail the Veteran's most severe psychiatric symptoms: his history of suicidal ideations as documented in the October 2012 medical report, history of anger, anxiety, difficulty with concentration, depression, chronic sleep impairment, disturbances of motivation and mood, and deficiencies in his relationship with his wife, and with previous co-workers. The Board notes that the Veteran has a history of positive and negative screenings of suicidal ideations, however, in this case the October 2012 examination report from Gadsden Regional Medical Center when considered with other symptoms, caused the level of occupational and social impairment associated with a 70 percent disability rating during the initial period on appeal. Although this October 2012 examination report predates the date of service connection for the Veteran's bipolar disorder, the Board still finds it relevant and probative as to the Veteran's symptoms from the date service connection was established. Moreover, the Board acknowledges and considers the December 2015 statement in which the Veteran indicated that he had suicidal thoughts, but was afraid to tell the psychiatrist for fear of being committed. Although there were negative screenings of suicidal ideations in the record, the Veteran has reported that he did in fact experience suicidal ideations despite those notations, however, he decided not to report them to avoid being institutionalized. The Board finds the Veteran's reason for not reporting these symptoms plausible and has no reason to doubt the veracity of the Veteran's statements. The Board notes that the January 2014 DBQ examiner indicated that the Veteran experienced occupational and social impairment with reduced reliability and productivity, the severity, frequency, and duration of the Veteran's bipolar-related symptoms warrant a 70 percent rating. Resolving reasonable doubt in his favor, the Board finds that his bipolar resulted in occupational and social impairment with deficiencies in most areas, supporting a 70 percent rating for the entire period on appeal beginning February 15, 2013. However, the preponderance of the evidence is against the assignment of a schedular rating in excess of 70 percent for any portion of the appeal period. When looking at the record wholistically, the Veteran does not display symptoms that warrant a rating of 100 percent. In fact, the treatment records in addition to the January 2014 and June 2014 examinations reveal that the Veteran has not experienced symptomatology consistent with total occupational and social impairment that would warrant a higher rating of 100 percent. While there were periods in which the Veteran experienced depression, anger, strained communication with his wife, issues with his temper, interpersonal problems, alcohol issues, anxiety, sleep issues, and a lack of motivation, he did not exhibit objective symptoms sufficient to warrant a 100 percent disability rating. The Board acknowledges the Veteran's assertions that he experienced symptoms of fatigue, agitation, difficulty of concentrating and focus and chronic insomnia, which are consistent with the record, however, these symptoms did not result in total occupational and social impairment to warrant a rating higher than 70 percent. Furthermore, the evidence does not reflect the presence of delusions and hallucinations. He has not been noted to have disorientation to time or place. He has had periods of suicidal ideation and intent; however, the overall record does not indicate that he poses a persistent danger to himself or others. Nor is he shown to suffer from an inability to remember his own name, occupation, or the names of close family members. As such, it cannot be said that he has suffered total occupational and social impairment. There is no indication that he is unable to maintain minimal personal hygiene, and he has not demonstrated grossly inappropriate behavior. Moreover, the Veteran was noted to be employed, both as a maintenance man and for himself since 1998 with no significant occupational problems reports. As such, the record does not show total occupational and social impairment as required for the 100 percent schedular rating. The Board has also considered the extent to which there are other indications of total occupational and social impairment, such as gross impairment of the thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, and/or disorientation to time or place. See Mauerhan, 16 Vet. App. 436, 444 (2002). In this regard, while the Veteran's bipolar disorder reflects a moderately severe overall impact on his social and occupational functioning, he does not have total occupational and social impairment. Therefore, on balance, he did not display total social and occupational impairment even when factoring in other relevant criteria outside of the rating code. Mauerhan, 16 Vet. App. 436, 444. Based on the foregoing, the Board finds that the Veteran is entitled to a grant of 70 percent for his bipolar disorder and no higher effective February 15, 2013. 2. Entitlement to an initial rating in excess of 70 percent for bipolar disorder since December 24, 2019 As stated above, the Veteran believes that he is entitled to a rating in excess of 70 percent for his bipolar disorder effective December 24, 2019. See Appellate Brief Received November 2021. See also Appellate Brief Received May 2021. The Veteran's post service treatment records indicate that his bipolar disorder has been an ongoing active problem. See CAPRI treatment records received July 2020. A December 2019 treatment record states that the Veteran has no suicidal / homicidal ideation, plan or intent. A January 2020 treatment record states that the Veteran's risk for suicide and homicide is low. Id. Another January 2020 treatment record indicates that the Veteran's sleep patterns are sporadic and he experiences difficulty falling asleep and wakes up frequently. Furthermore, the January 2020 treatment record states that the Veteran has depressive episodes and tends to have suicidal ideations during these episodes, although he would never act on them. The post service treatment records indicate that the Veteran has ongoing issues with depression, anxiety and sleep related issues during the appeal period. Id. The Veteran was afforded a DBQ examination in December 2019. The examiner diagnosed the Veteran with bipolar I disorder, recurrent, moderate, with anxious features and stated that the Veteran is currently in a depressive state. The examiner noted that the Veteran denied previous suicide attempts. The examiner indicated that the Veteran experienced occupational and social impairment with deficiencies in most area, such as work school, family relations, judgment, thinking and/or mood. The examiner noted that the Veteran and his wife have communication and intimacy issues, and it was reported that the Veteran can be cruel and angry. The examiner noted that with respect to the Veteran's occupational history, he recently got a five year certificate of completion from PMS, Inc. The examiner also noted that the Veteran is a production associates and makes auto parts. It was further noted that the Veteran had issues with people on the job and it was further noted that those issues have resolved as those individuals have either quit or been transferred. It was noted that the Veteran was fired from his previous job where he worked at a chicken plant for three to four months as a result of a fight. It was noted that the Veteran reported that in his current job he works with good people. The examiner also stated that the Veteran's symptoms included depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a work like setting, and suicidal ideation. The examiner noted that the Veteran ambulated without difficulty and his grooming and hygiene were adequate and his affect was flat and his mood was irritable at times during the examination. It was noted that the Veteran was oriented and was positive for mild issues with memory, attention, and concentration. Pursuant to Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Board has considered the applicability of staged ratings. However, in this case, the evidence does not support the assignment of a 100 percent schedular rating for any portion of the period on appeal. In sum, the evidence does not establish that the Veteran's bipolar disorder has resulted in total social and occupational impairment at any time during the period on appeal, but instead has consistently displayed symptoms representative of a 70 percent disability rating assignment during both periods on appeal. Specifically, the December 2019 examination reflects that while the Veteran reported feelings of anger, depression, difficulty with communicating, he has maintained employment and self-reported having a good relationship with his current co-workers. The Board acknowledges that during his former job, the Veteran had issues with his co-workers, but those issues were noted as being resolved. Furthermore, while there were occasional periods in which the Veteran's mood impacted his ability to function occupationally and socially, as indicated in the December 2019 DBQ report, this occurred only sporadically, and did not arise to a level consistent with a higher rating. The Veteran did not exhibit 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. As such, there is not sufficient evidence that the Veteran's symptoms are of the severity and frequency to cause the level of occupational and social impairment associated with a higher disability rating during the period beginning December 24, 2019. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). Moreover, the Veteran's most December 2019 examination noted that the Veteran at worst experienced occupational and social impairment in most areas, but there is evidence at any point during the appeal period that the Veteran experienced total occupational and social impairment that would warrant a higher rating of 100 percent. Therefore, on balance, he did not display total social and occupational impairment even when factoring in other relevant criteria outside of the rating code. Mauerhan, 16 Vet. App. 436, 444. As such, a rating in excess of 70 percent is not warranted at any time. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board acknowledges that the manifestations of Veteran's bipolar related symptomatology to include depressed mood, reports of suicidal ideation, sleep issues, agitation, fatigue, anxiety have been continuously ongoing however, the symptoms displayed by the Veteran during the appeal period are consistent with the already assigned 70 percent rating. In considering the appropriate disability rating, the Board has also considered the statements from the Veteran that his service-connected psychiatric disability is worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his diabetes according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's psychiatric disability have been provided by the medical personnel who have examined and treated him during the appeal period and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which his psychiatric disability is evaluated. In that regard, after a review of the record and consideration of the evidence, the Board finds that a grant in excess of 70 percent for the Veteran's bipolar disability as of December 24, 2019 and thereafter would be unwarranted as the 70 percent rating adequately reflected the severity of the Veteran's bipolar disorder at the present time. (Continued on the next page) In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). However, as the preponderance of the evidence is against the assignment of a rating in excess of 70 percent, that doctrine does not apply. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dorsey-Kwansa, 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.