Citation Nr: 21021922 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-26 635 DATE: April 14, 2021 ORDER Entitlement to an increased rating in excess of 70 percent for bipolar II disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to April 25, 2017 and from October 1, 2018, is denied. Entitlement to TDIU, from April 25, 2017 to September 30, 2018, is granted. Entitlement to special monthly compensation (SMC) at the housebound rate, from April 25, 2017 to September 30, 2018, is granted. FINDINGS OF FACT 1. The Veteran’s bipolar II disorder was not manifested by symptoms resulting in total occupational and social impairment. 2. Prior to April 25, 2017 and from October 1, 2018, the Veteran was able to obtain or retain substantially gainful employment. 3. From April 25, 2017 to September 30, 2018, the Veteran was not able to obtain or retain substantially gainful employment due to her service-connected bipolar II disorder. 4. From April 25, 2017 to September 30, 2018, the Veteran’s bipolar II disorder alone warrants TDIU and she had additional service-connected disabilities rated at least 60 percent that are separate and distinct. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 70 percent for bipolar II disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9432. 2. Prior to April 25, 2017 and from October 1, 2018, the criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 3. From April 25, 2017 to September 30, 2018, the criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 4. From April 25, 2017 to September 30, 2018T, the criteria for SMC based on one service-connected disability rated as total and additional service-connected disabilities independently ratable at 60 percent or more (housebound rate) have been met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2000 to July 2005. The Veteran appealed an October 2014 rating decision by the Agency of Original Jurisdiction (AOJ). In October 2018, the Board remanded the Veteran’s claims to the AOJ for further action consistent with the Board’s remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating When a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. A 70 percent rating is warranted 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, 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. When evaluating the level of disability 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. Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013). Taking into account all relevant evidence, the Board finds that a disability rating of 70 percent is appropriate for the Veteran’s service-connected bipolar II disorder. The Veteran has exhibited occupational and social impairment in most areas, such as work, family relations, judgment, or mood. The Veteran has not exhibited total occupational and social impairment. The September 2014 VA examination report noted depression, anxiety, near-continuous panic or depression, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, that she has deteriorated to barely function, and she has overwhelming mood problems. The Veteran stated in her October 2014 notice of disagreement (NOD) that she has gross impairment of thought process, she cannot work since she is mentally unstable, and that depression makes it impossible to get out of bed and perform hygiene routines. The April 2016 VA examination report noted manic episodes that occur every 3 to 4 months, excessive drinking with depression, but she stopped drinking in 2014, panic attacks that occur weekly or less often, difficulty establishing and maintaining effective work and social relationships, and that her current job is in jeopardy due to missed work while she is in a manic or depressed phase. The Veteran stated in her May 2016 VA Form 9 that she cannot work, she is severely depressed, she does not eat or bathe, she has vague suicidal ideations, she has grossly inappropriate behavior, she has sexual promiscuity, she has frivolous spending, she has boundary issues, she has anxiety, she has hallucinations due to sleep deprivation, and she has extreme irritability. The May 2018 informal hearing presentation (IHP) noted infrequent symptoms of panic and that she does not pose threat of danger or injury to self or others. February 2019 VA treatment records noted potential suicidal ideation. The May 2020 VA examination report noted the Veteran is still working as a social worker, she has sleep problems, anxiety, depressed mood, loss of appetite, impaired judgement, difficulty adapting to stressful circumstances, and impaired impulse control. Overall, the record indicates periods of “manic” episodes where the Veteran’s symptoms appear to be worse than other periods. Nevertheless, while the Veteran exhibits significant occupational and social impairment, it falls short of total. Although the record suggests employment problems, the Veteran was working for most of the period on appeal and presently works. The evidence also does not demonstrate frequent hallucinations or delusions. The record does not suggest gross impairment in thought processes or communication evidenced by the medical evidence. The Veteran does not abuse any substances. She has not been deemed disoriented as to time or place by a medical provided. The Veteran also remembers her own name. While the Veteran does exhibit some symptoms contemplated in total occupational and social impairment, the symptomatology is not of sufficient severity, frequency, and duration to result in a higher rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Hence, the criteria for a 100 percent evaluation are not met. Thus, the Board finds that the criteria for an increased rating in excess of 70 percent for bipolar II disorder are not met TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a) (2017). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner’s role is limited to describing the effects of disability upon the person’s ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts she personally observed or described; this includes recalling what she personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis for the entire period on appeal. The Veteran’s bipolar II disorder is rated at 70 percent disabling for the entire period on appeal. See 38 C.F.R. § 4.16(a). Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of her service-connected disabilities. A February 2019 VA Form 21-8940 noted the Veteran last worked full time April 24, 2017 and started a new job in October 2018 as a social worker making up to $3,600 and losing up to 24 hours of work a month. The Veteran also has a 2 year college education. Id. A May 2020 VA Form 21-4192 indicated the Veteran last worked April 24, 2017 as a clinical counselor making $42,000 over the past 12 months. As noted above, medical evidence indicates that the Veteran is presently working. The Veteran stated that she was fired from her previous job due to manic behaviors and missing too much work. See May 2018 Veteran statement; February 2019 VA Form 21-8940. 1. Prior to April 25, 2017 and from October 1, 2018 Prior to April 25, 2017 and from October 1, 2018, the Board finds the Veteran was gainfully employed or was able to obtain gainful employment. As noted above, prior to April 25, 2017 and from October 1, 2018, the Veteran was employed as a social worker and making much more than the poverty threshold. Although the Veteran may have missed periods of work and had difficulties with employment due to her service connected disabilities, the Veteran was still employed and being paid a more than marginal wage despite her condition. The record also does not demonstrate the Veteran works in a protected environment. Therefore, TDIU is not warranted prior to April 25, 2017 and from October 1, 2018. 2. From April 25, 2017 to September 30, 2018 From April 25, 2017 to September 30, 2018, the Veteran’s bipolar II disorder made her unable to function appropriately in a workplace setting. This is corroborated by a competent and credible medical and professional evidence. The evidence suggests the Veteran was unemployed from April 25, 2017 to September 30, 2018 and that she lost her job due to her “manic” episodes and missing too much work. Evidence suggests the Veteran was unable to adapt to the workplace, had severe symptoms which caused her to miss periods of work, and that she had personality issues that would prevent her from working well with others. Overall, from April 25, 2017 to September 30, 2018, it appears the Veteran’s symptoms were severe so that she lost her job and was unable to obtain new employment. The Veteran competently stated she applied to many jobs during this period and was unable to obtain the positions due to her psychiatric symptoms. See May 2018 Veteran statement; February 2019 VA Form 21-8940. The Board finds the Veteran credible as to her functional limitations attributable to her service-connected disabilities. Therefore, the Board finds that the Veteran’s service-connected bipolar II disorder alone at least as likely as not prevented her from obtaining and maintaining gainful employment from April 25, 2017 to September 30, 2018. Accordingly, resolving all doubt in the Veteran’s favor, the criteria for TDIU have been met, from April 25, 2017 to September 30, 2018, and the claim is granted to that extent. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). SMC SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent disabling and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Pursuant to this decision, the Veteran is in receipt of TDIU based on her service-connected bipolar II disorder alone from April 25, 2017 to September 30, 2018. This satisfies a single disability rated as total as required for SMC purposes. The Veteran’s other service-connected disabilities combine to a rating of 60 percent. The Veteran is rated at 50 percent disabling for headaches, 10 percent disabling for a back condition, and 10 percent disabling for right lower extremity radiculopathy for the entire period on appeal. (Continued on the next page)   As such, she is entitled to SMC at the housebound rate from April 25, 2017 to September 30, 2018. See 38 U.S.C. § 1114(s). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.