Citation Nr: 21074645 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-52 656 DATE: December 15, 2021 ORDER Entitlement to service connection for bipolar disorder is denied. FINDING OF FACT For the entire period on appeal, the Veteran's bipolar disorder and service-connected posttraumatic stress disorder (PTSD) have been manifested by overlapping symptoms. CONCLUSION OF LAW Service connection for bipolar disorder cannot be established as it would constitute pyramiding. 38 C.F.R. § 4.14. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from February 1985 to February 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in April 2019 and September 2019, at which times the issue on appeal was remanded for additional development. This case has been returned to the Board for further appellate action. At the outset, the Board notes that in September 2019, the Board also remanded the issue of entitlement to service connection for PTSD. Subsequently, in a June 2020 rating decision, the RO granted entitlement to service connection for PTSD, at a 70 percent disability rating, effective February 5, 2013. On September 21, 2021, the Veteran filed a claim to increase the disability rating of her PTSD. In November 2021, the RO issued a rating decision that increased the Veteran's PTSD disability rating to 100 percent, effective September 21, 2021. As the Veteran did not file an appeal one year from the date of the June 2020 rating decision, that issue is not before the Board. 38 U.S.C. § 7105. The Board also notes that there has been no evidence to date, that the Veteran has perfected an appeal for the November 2021 rating decision. Service connection - Bipolar Disorder The Veteran asserts that her diagnosis of bipolar disorder is related to trauma she suffered during her active service. Ordinarily, separately diagnosed injuries are rated individually and then combined into a single rating to determine the overall impairment of a veteran's condition. 38 C.F.R. § 4.25 (2020). However, VA regulations prevent claimants from receiving multiple awards for the same impairment simply because that impairment could be labeled in different ways, as that constitutes pyramiding. 38 C.F.R. § 4.14 (2020). "The basis of disability evaluations is the ability of the body as a whole, or of the psyche . . . to function under the ordinary conditions of daily life including employment." 38 C.F.R. § 4.10 (2020). With respect to mental health disorders, the amount of impairment is measured by the social and occupational difficulties caused by a veteran's disorder. 38 C.F.R. § 4.130 (2020). The United States Court of Appeals for the Federal Circuit (Court) has addressed the applicability of this regulation in the context of mental health disorders. See Amberman v. Shinseki, 570 F.3d 1377 (2009). In Amberman, the Court held that "the critical element is that none of the symptomatology for any one of these conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions." Id. at 1381 (quoting Estaban v. Brown, 6 Vet. App. 259 (1994)). Thus, Amberman holds that where any of the symptoms of one service-connected mental health disability overlaps with the symptoms of any other disability, it is appropriate to rate the two disabilities together as a combined manifestation under the criteria set forth in 38 C.F.R. § 4.130. The Veteran's service treatment records (STRs) are absent of any complaint or diagnosis of, or treatment for, bipolar disorder. However, the Veteran's military personnel records reveal multiple incidences of disciplinary action due to violent behavior towards other soldiers and insubordination. The Veteran's post-service treatment records reveal that the Veteran had a diagnosis of bipolar disorder as early as March 2011. In April 2013, the Veteran was afforded a VA examination for PTSD. At that time, the VA examiner noted that the Veteran had a diagnosis of bipolar disorder and PTSD. The VA examiner found that it was not possible to differentiate which symptoms were attributable to each diagnosis. The VA examiner noted that differentiation was difficult due to the overlap in anxiety and affective symptoms. Additionally, the VA examiner assessed that the Veteran's symptoms included: depressed mood, anxiety, chronic sleep impairment, impaired judgement, flattened affect, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. In January 2015, the Veteran was afforded another VA examination for PTSD. At that time, the VA examiner noted that the Veteran had a diagnosis of bipolar I disorder with psychotic features, PTSD, stimulant use disorder in sustained remission, and cannabis disorder in sustained remission. The VA examiner noted that the Veteran's bipolar I disorder and PTSD had overlapping symptoms, to include: irritability and anger, difficulty concentrating, impaired impulse control, and difficulty maintaining effective work and social relationships. However, the VA examiner assessed that the symptoms specific to bipolar disorder included: episodes of mania characterized by pressured speech, flight of ideas, verbal aggression to others, difficulty modulating her emotions typically resulting in verbal arguments with a raised voiced and speaking over others, and occasionally angry discussions of racial discrimination and feeling mistreated by those around her. In July 2019, the Veteran was afforded a VA examination for PTSD. At that time, the VA examiner found that there was insufficient evidence of discrete manic or hypomanic episodes to warrant a diagnosis of bipolar disorder. The VA examiner also assessed that the Veteran's pattern of chronic anger and rage reactions were more consistent with a disruptive mood disorder combined with anger, which were symptomatic of a chronic trauma-stressor related disorder. Additionally, the VA examiner noted that disruptive mood dysregulation disorder required evidence of an onset prior to 10. However, the VA examiner subsequently indicated that an onset prior to 10 years old was not clear in the Veteran's case. The VA examiner also noted that the Veteran adamantly denied any anger or other disturbance prior to service. Further, the VA examiner assessed that the Veteran's symptoms included: depressed mood, anxiety, suspiciousness, chronic sleep impairment, impaired judgement, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, an inability to establish and maintain effective relationships, and impaired impulse control. In a January 2020 treatment note, a VA psychiatrist stated that he did not feel the Veteran's bipolar diagnosis reflected the core psychiatric condition that she suffered from, and that her symptoms were more likely associated with PTSD. In October 2021, the Veteran was afforded a VA examination for PTSD. At that time, the VA examiner noted that the Veteran had a diagnosis of PTSD and bipolar disorder. The VA examiner found that it was not possible to differentiate what symptoms were attributable to each diagnosis due to the complexity and interrelationships of the Veteran's symptoms. Additionally, the VA examiner assessed that the Veteran's symptoms included: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, impaired judgement, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, impaired impulse control, neglect of personal appearance and hygiene, and an intermittent inability to perform activities of daily living. The Board initially finds that the July 2019 VA examination is inadequate for adjudication purposes. In this regard, the VA examiner's assessment that the Veteran did not have a diagnosis of bipolar disorder contradicts prior VA examinations and diagnosis provided by the Veteran's VA psychiatrist during routine treatment. Additionally, the VA examiner's rationale pertaining to the evidence required to establish a diagnosis of disruptive mood disorder was, by the examiner's own admission, not clearly supported by the evidence of this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As the examination is inadequate, it is afforded no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Additionally, the Board notes that the Veteran is in receipt of a 70 percent disability rating for PTSD, effective February 5, 2013, and a 100 percent disability rating for PTSD, effective September 21, 2021. The effective dates of those evaluations constitute the entire period on appeal. Here, the April 2013, January 2015, and October 2021 VA examiners have all opined that the symptoms of the Veteran's PTSD and bipolar disorder overlap. Those assessments are echoed by the Veteran's long-time VA psychiatrist, who opined that the core psychiatric condition, to include symptoms, that the Veteran suffered from was PTSD. Moreover, the Board finds that there is no medical evidence to the contrary in this appeal. (Continued on the next page) Based on the foregoing, federal regulation and case law provides clear guidance that a separate rating in this case would amount to pyramiding. See 38 C.F.R. § 4.14 (2020); see also Amberman v. Shinseki, 570 F.3d 1377 (2009). Accordingly, the Board finds that the Veteran is not entitled to be separately rated and compensated for bipolar disorder; as such, the preponderance of the evidence is against the claim for a separately rated disability and entitlement to service connection for bipolar disorder, must be denied. 38 C.F.R. § 4.14. Michael L. Rescan Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Byrd, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED