Citation Nr: 21006138 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-10 690 DATE: February 3, 2021 ORDER From October 8, 2015 to December 12, 2019, entitlement to an initial disability evaluation of 70 percent, but not higher, for bipolar disorder with major depression is granted. From December 13, 2019, forward, entitlement to a disability evaluation in excess of 70 percent for bipolar disorder with major depression is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT Throughout the entire appeal period, the Veteran’s service-connected bipolar disorder with major depression is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse, difficulty in adapting to stressful circumstances, and the inability to establish and maintain effective relationships, but not by total social and occupational impairment. CONCLUSIONS OF LAW 1. From October 8, 2015 to December 12, 2019, the criteria for entitlement to an initial disability evaluation of 70 percent, but not higher, for bipolar disorder with major depression have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9434-9432. 2. From December 13, 2019, forward, the criteria for entitlement to a disability evaluation in excess of 70 percent for bipolar disorder with major depression have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9434-9432. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from July 2000 to November 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In September 2019, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. A June 2020 rating decision granted an increased, 70 percent, rating for the Veteran’s service-connected bipolar disorder with major depression, effective December 13, 2019. As this increase does not represent a full grant of benefits sought on appeal as concerning this issue, the claim for an increased disability rating remains pending before the Board. See A.B. v. Brown, 6 Vet. App., 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). During the course of the appeal, the issue of entitlement to a TDIU has been raised by the record. As such, the Board has jurisdiction over the Veteran’s TDIU claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. The Schedule assigns Diagnostic Codes to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two Diagnostic Codes are applicable to the same disability, the Diagnostic Code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different Diagnostic Codes-a practice known as pyramiding-is prohibited. Id.; see 38 C.F.R. § 4.14. In disability rating cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran’s service-connected bipolar disorder with major depression (hereinafter “psychiatric disorder”) was evaluated as 30 percent disabling prior to December 13, 2019, and as 70 percent disabling thereafter under 38 C.F.R. § 4.130, Diagnostic Code 9434-9432. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. Under the General Rating Formula, as pertinent to the present appeal, a 30 percent rating is warranted where there is 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted where the disorder is manifested by 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating requires 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); and inability to establish and maintain effective relationships. Id. The maximum 100 percent rating requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. See id. VA must consider all symptoms of a claimant’s condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM-V). 38 C.F.R. §§ 4.125, 4.126. The Federal Circuit clarified that the General Rating Formula for Mental Disorders requires (1) sufficient symptoms of the kind listed in the percentage requirements, or others of similar severity, frequency or duration; and (2) that those symptoms cause the level of occupational and social impairment specified in the regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). If the evidence demonstrates that the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; Vazquez-Claudio, 713 F.3d at 117 (noting that the “frequency, severity, and duration” of a veteran’s symptoms “play an important role” in determining the disability level). While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. Id. The Veteran’s VA treatment records reflect he experienced some sleep impairment, depression, increased anxiety, neglect of personal hygiene and lack of focus. He was also noted as having a history of obsessive behaviors, self-harm, and suicidal thoughts and attempts. See November 2015 Mental Health Note; January 2016 Psychiatric Note; February 2016 Psychiatric Note; May 2016 Psychiatric Note; August 2016 Mental Health Outpatient Note; January 2017 Psychiatric Note; April 2017 Psychiatric Note; July 2017 Psychiatric Note; October 2017 Psychiatric Note; February 2019 Mental Health Note; May 2019 Psychiatric Note; November 2019 Mental Health Note; May 2020 Psychiatric Note. At a June 2016 VA examination, the Veteran reported that, without medication, he had long depression spells; sleep impairment; racing thoughts; anxiety, especially in crowds; and issues with memory and concentration. The examiner characterized the Veteran’s psychiatric disorder as manifesting in occupational and social impairment due to mild or transient symptoms. The Veteran was noted to have relationships with most of his children, his parents and grandparents, and some close friends. His symptoms were listed as depression, sleep impairment, impaired impulse control without periods of violence, and an elevated or euphoric mood. See June 2016 Mental Disorders Disability Benefits Questionnaire (DBQ). In July 2016, the Veteran stated that he experiences impaired impulse control; difficulty adapting to stressful circumstances; an inability to establish and maintain effective relationships; and severe memory problems. See July 2016 Notice of Disagreement. A January 2017 VA examination report reflected the Veteran experienced depression, chronic sleep impairment, difficulty getting motivated, and mild memory loss. The Veteran reported having a relationship with some of his children and his younger brother. He further stated that he has no close friends, but attends church and a bible study. The examiner noted the Veteran was alert and oriented, casually dressed and appropriately groomed. His speech and eye contact were normal, and he denied suicidal ideation. The Veteran stated he was easily distracted, had diminished concentration, racing thoughts, and intermittent feelings of worthlessness and hopelessness. The examiner characterized the Veteran’s psychiatric disorder as resulting in occupational and social impairment due to mild or transient symptoms. See January 2017 Mental Disorders DBQ. In February 2017, the Veteran stated he had severely impaired impulse control, difficulty adapting to stressful circumstances, and is unable to establish and maintain effective relationships. He further stated he was only able to complete complicated tasks if they are written down. He also served a seven-month jail term for inappropriate judgement and behavior. The Veteran stated his impulse control, impaired memory, and inability to follow directions have impacted his ability to maintain employment. See February 2017 VA Form 9. At the September 2019 Board hearing, the Veteran testified that he was feeling increased anxiety, trouble focusing and sleeping, and impaired reasoning. He further testified to having an impaired impulse control, often saying inappropriate things to others. Regarding his social life, the Veteran stated that he has no friends, and primarily sees his girlfriend and family, but those interactions are limited due to his isolative behaviors. He said if he had his way, he would never leave the house. The Veteran further reported that he needed to be reminded by his girlfriend to shower and maintain his hygiene. He stated that he experiences cyclical highs and lows, even on his current medications. In regard to panic attacks, the Veteran testified that he experiences panic attack occasionally, especially when in an unfamiliar situation. He described his issues with retaining information, stating he can understand how to do something one day and then have no idea the following day. He further stated his memory is impaired, including forgetting entire conversations. He stated he was in school full-time, but struggled to motivate himself to leave the house to attend class. See September 2019 Hearing Transcript. A December 2019 VA examination report reflects the Veteran’s psychiatric symptoms consisted of depression; anxiety; panic attacks; mild memory loss; impairment of short and long term memory; flattened affect; disturbances of motivation or mood, difficulty in establishing and maintaining effective relationships and adapting to stressful circumstances; neglect of personal appearance and hygiene. His other symptoms included forgetfulness; mixing up times for appointments; mild disorientation; social anxiety; restless sleep; difficulty concentrating with racing thoughts; and obsessive behaviors, including biting nails, pulling hair, sharp chest pain. The Veteran was being poorly groomed at the appointment, but was also oriented, polite, and cooperative. The examiner noted he had difficulty communicating and appeared anxious. The examiner characterized the Veteran’s psychiatric disorder as manifesting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. See December 2019 Mental Disorders DBQ. The Veteran’s mother submitted a statement which gave an overview of the Veteran’s psychiatric history since his November 2005 discharge. She described the Veteran being very isolated and never having any friends or long-lasting relationships. She also noted that the Veteran always puts a stoic face forward and does not exhibit emotion, so for her to notice his depression and anxiety attests to the severity of those symptoms. See July 2020 R.C. Statement. The Veteran’s girlfriend, J.W., stated that she first met the Veteran four years prior, at which time he had long hair and poorly maintained teeth. Only after moving in together did she see the extent of his hygienic neglect, and noted the Veteran has to be reminded to brush his teeth, shower, change his clothes, do laundry, change bed sheets, and get a haircut. J.W. noted that the Veteran severely lacks awareness regarding time, with days passing without his notice. His short- and long-term memory is also impacted, with him forgetting recent conversations as well as to pay recurring bills, requiring J.W. to send and set up numerous reminders so he does not forget. She also noted his anxiety had increased over the past four years, with the Veteran having to be forced to leave the house and struggling to connect with other people. See July 2020 J.W. Statement. The Veteran also submitted a statement addressing his psychiatric symptomology since his November 2005 discharge. He described experiencing extreme anxiety and panic attacks, and always having issues with work performance. He described his social life as cycling through a few friends every few months and never being able to maintain a romantic relationship. His memories of the past ten years are scattered, and he stated he is unable to remember names and faces. He also described having no impulse control, and spending money unnecessarily. Following his release from jail in 2015, he stated that he began to see a psychiatrist and attend community college, which took a toll as he had to interact with a lot of people. He further stated that he had difficulty understanding his classes and had to have a few explanations given before he caught on. He also worked several jobs but was unable to keep up the pace on one job and was fired. The Veteran described how his impulse spending and motivation have been improved by his relationship. He still experiences severe social anxiety, and required medication for anytime he leaves the house. He noted that all but seven of his teeth had to be pulled due to his neglect of his dental hygiene. See July 2020 Correspondence. In this regard, the Veteran, his mother, and his girlfriend are competent to report observable psychiatric symptomatology. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002); see also Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Additionally, they are credible in their reports of suffering psychiatric symptomatology during and after service. See Caluza v. Brown, 7 Vet. App. at 711, aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). Based on the foregoing, the Board concludes that the evidence indicates that the Veteran’s psychiatric disorder symptoms interfere with most aspects of his life and is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control, neglect of personal appearance, difficulty in adapting to stressful circumstances (including work or a work like setting), and the inability to establish and maintain effective relationships. Thus, pursuant to 38 C.F.R. § 4.7, and resolving all doubt in favor of the Veteran, as is required by law, the Board is granting the Veteran an initial rating of 70 percent, and no more, for his service-connected psychiatric disorder, effective October 8, 2015 to December 12, 2019, 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the June 2016, January 2017, and December 2019 VA examiners characterized the Veteran’s psychiatric disorder as manifesting in mild or transient symptoms or with occasional decrease in work efficiency and ability to perform occupational tasks. However, the evidence of record reflects the frequency, severity, and duration of the Veteran’s symptoms more nearly approximate occupational and social impairment with deficiencies in most areas. Specifically, the Veteran’s isolative behaviors with extreme social anxiety, inability to establish and maintain effective relationships, neglect of personal appearance, and impaired impulse control have clearly impacted all aspects of his life, including work, school, and relationships with family and friends. The Board thus finds that a 70 percent rating is appropriate during the entire appellate period. 38 C.F.R. §§ 4.7, 4.126(a). During the entire appellate period, there is no evidence that the Veteran’s psychiatric disorder is manifested by symptoms similar in type and degree symptoms to gross impairment in thought processes or communication, delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name, or symptoms of the same type and degree. Nor is there evidence of total occupational and social impairment, as the Veteran has been enrolled in college courses throughout the appellate period, and has maintained relationships with his family and girlfriend. The Board notes that the Veteran has exhibited symptoms of intermittent inability to perform activities of daily living and some disorientation to time or place. However, the Board finds these symptoms are not of such severity, frequency, and duration as to cause total occupational and social impairment. Thus, a 100 percent rating is not warranted. Again, the Veteran has maintained relationships with his family and girlfriend. 38 C.F.R. § 4.130. In summary, the preponderance of the evidence reflects that from October 8, 2015 to December 12, 2019, the Veteran’s service-connected psychiatric disorder symptoms approximate the criteria for an initial 70 percent rating. However, during the entire appellate period, the preponderance of the evidence is against entitlement to a 100 percent schedular rating for a bipolar disorder with major depression. REASONS FOR REMAND Entitlement to a TDIU is remanded As stated above, the issue of TDIU has been raised by the record during the pendency of the appeal. However, the Board notes that it is unclear when the Veteran stopped working as a result of his service-connected disability. In order to accurately assess the Veteran’s claim for a TDIU, the Board finds that the Veteran’s dates of employment should be clarified on remand. The matters are REMANDED for the following action: 1. Clarify with the Veteran all dates of his employment and income since October 2015, and submit for verification to any employer(s) listed. (Continued on the next page)   2. Thereafter, develop the claim for a TDIU as necessary, to include obtaining updated treatment records and any VA Vocational Rehabilitation folder as applicable, and scheduling the Veteran for an appropriate VA examination(s). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Stedman, 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.