Citation Nr: 21007588 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 13-33 427 DATE: February 10, 2021 REMANDED Entitlement to an initial rating in excess of 30 percent for bipolar I disorder for the period prior to May 15, 2011, and in excess of 70 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from July 2004 to May 2005, and from January 2009 to March 2010. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 Rating Decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing via videoconference in her November 2013 VA Form 9 (substantive appeal). The Veteran subsequently withdrew her request for a Board hearing in February 2015, November 2015 and again in April 2016. The hearing request has been withdrawn. 38 C.F.R. § 20.702(e) (2019). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Here, the Veteran has not opted-in to VA’s test program, the Rapid Appeals Modernization Program (RAMP). Although the AMA was implemented effective February 19, 2019, the Rating Decision on appeal was issued prior to that date. Accordingly, the Board will review her appeal under the existing Legacy Appeals System. The Veteran seeks entitlement to higher evaluations for her service-connected bipolar I disorder, as well as entitlement to a TDIU. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. The Veteran is currently service connected for bipolar I disorder (previously major depressive disorder with anxiety, progression). The Veteran is not service-connected for PTSD. The Veteran was provided with a VA PTSD examination in April 2016, at which time she was diagnosed as having both PTSD and bipolar I disorder. The VA examiner indicated that the Veteran had more than one diagnosed mental disorder, and that it was possible to differentiate what symptoms were attributable to each diagnosis. Additionally, the examiner opined that the Veteran’s PTSD symptoms of irritability, suspiciousness, anger, sleep disturbance, and concentration difficulty all contributed to her bipolar symptoms of mania and depression, and that these conditions were comorbid and exacerbated one another. Furthermore, the VA examiner indicated that it was possible to differentiate what portion of the Veteran’s occupational and social impairment was caused by each mental disorder, specifying that the Veteran’s bipolar I disorder was responsible for 80 percent impairment, while her PTSD was only responsible for 20 percent of her impairment. The Veteran was next provided with a VA Mental Disorders examination in December 2018, at which time she was diagnosed as having bipolar I disorder, most recent episode manic, moderate. Curiously, however, although the December 2018 VA examiner acknowledged that the previous April 2016 examination described bipolar disorder as well as PTSD from childhood, the examiner indicated that the Veteran did not have more than one diagnosed mental disorder. The examination report provided no additional discussion of the Veteran’s diagnosed PTSD. The December 2018 VA examiner issued an addendum opinion in October 2019, at which time the Veteran’s PTSD diagnosis was not mentioned or discussed. The VA examiner opined that: Regarding employability, given Veteran's difficulty managing stress and tendency to become easily overwhelmed associated with her Bipolar Disorder she would need to work in a flexible environment where she could leave for short periods of time to calm her nerves as necessary. Due to Veteran's low frustration tolerance and difficulty getting along with others associated with Bipolar Disorder, she might experience difficulty in a position requiring frequent or prolonged contact with the general public. She has struggled with interpersonal difficulties at previous jobs and stressful situations have triggered manic episodes. She also previously experienced homicidal ideation and suicidal ideation when triggered by stress (a review of records indicates suicidal ideation regarding job problem 3/20/19). Veteran may be able to tolerate ordinary work pressures, but excessive workloads, quick decision making, rapid changes, and multiple demands in the workplace should be avoided. She struggles with organization. Her employers would need to be understanding of her severe anxiety and provide her with leniency with regards to attendance. Her level of occupational and social impairment still appear to have deficiencies in most areas. Most recently, the Veteran was provided with another VA Mental Disorders examination in May 2020, at which time she was diagnosed as having bipolar I disorder, current or most recent manic episode, mild. Significantly, no mention was made of the Veteran’s PTSD diagnosis. Although the May 2020 VA examiner checked the box indicating that the Veteran had more than one diagnosed mental disorder, the examiner did not provide a diagnosis for the other diagnosed mental disorder and simply checked “not applicable” when asked whether it was possible to differentiate what symptom(s) were attributable to each diagnosis. Additionally, the May 2020 VA examiner indicated that the Veteran was last examined for her psychiatric symptomatology in 2016, suggesting that the May 2020 examiner was unaware of the December 2018 VA Mental Disorders examination report. This is supported by the fact that the May 2020 VA examiner diagnosed the Veteran as having “bipolar I disorder, current or most recent manic episode, mild” and indicated that this diagnosis was unchanged from the previous diagnosis, whereas the previous December 2018 VA examination report diagnosed the Veteran as having “bipolar I, most recent episode manic, moderate.” In fact, the May 2020 VA Mental Disorders examination report did not acknowledge any psychiatric treatment records dated after 2016, which is problematic in light of the March 2019 Board Remand’s instructions directing the examiner to assess the apparent fluctuations in the Veteran’s bipolar disorder I between June 2018 and February 2019. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Board finds that the most recent VA psychiatric examinations are inadequate and that a new medical opinion must be obtained on remand. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA undertakes the effort to provide an examination, it must provide an adequate one). Indeed, while the April 2016 VA examination report established that the Veteran was diagnosed as having both nonservice-connected PTSD and service-connected bipolar I disorder (with symptoms as well as occupational and social impairments which could be separately attributed to each disorder), the subsequent VA examination reports are ambiguous as to whether the Veteran suffers from more than one psychiatric disorder and which specific symptoms and occupational/social impairments are attributable to each diagnosed disorder. The May 2020 examiner, in particular, indicated that the Veteran had more than one diagnosed mental disorder but then provided no additional information. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). This ambiguity frustrates judicial review and constitutes a medical question outside of the Board’s fact-finding proficiency. See Colvin v Derwinski, 1 Vet. App. 171 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). As such, on Remand, an addendum opinion must be obtained from the May 2020 VA examiner which explicitly addresses all of the Veteran’s psychiatric diagnoses. In doing so, the VA examiner is also asked to confirm that the report of the December 2018 VA Mental Disorders examination as well as VA treatment notes dated from June 2018 to the present were reviewed prior to providing the requested opinions. The matters are REMANDED for the following action: 1. Obtain updated VA and non-VA treatment records. 2. Forward the Veteran’s VA claims file to the examiner who conducted the May 2020 VA Mental Disorders examination, or if unavailable, to another suitably qualified VA medical professional, for an addendum opinion as to the nature and severity of the Veteran’s variously diagnosed psychiatric disorders. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After reviewing the Veteran’s pertinent VA medical treatment records, to include the reports of the April 2016, December 2018, and May 2020 VA examinations (as well as the VA treatment records dated since June 2018, which documented apparent fluctuations in the Veteran’s bipolar disorder I), the examiner is asked to comment on the overall severity of her symptoms related to her service-connected bipolar I disorder in terms of her ability to engage in activities of daily living and occupational activities and, if any, the effects of prescribed medication on this determination. The examiner is asked to list all evidence considered in support of this opinion. The VA examiner is also asked to specifically opine as to whether the Veteran has a separate and distinct psychiatric diagnosis other than bipolar I disorder, to include but not limited to PTSD. If so, then the examiner is asked to differentiate, to the extent possible, the current symptoms attributable to the Veteran’s service-connected bipolar I disorder from symptoms attributable to any additional diagnosed psychiatric disorders which are not service connected. Additionally, the examiner is asked to differentiate, to the extent possible, the current occupational and social impairment attributable to the Veteran’s service-connected bipolar I disorder from impairments attributable to any additional diagnosed psychiatric disorders which are not service connected. If the examiner opines that the Veteran does not have a separate and distinct psychiatric diagnosis other than bipolar I disorder, then the examiner is asked to opine as to the likelihood that the previous diagnoses of PTSD were misdiagnosed symptoms of the Veteran’s service-connected bipolar I disorder, or rather legitimate diagnoses which have since resolved. (Continued on the next page)   A complete rationale for any opinion expressed must be provided. If the examiner cannot provide an opinion without resort to speculation, then the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.