Citation Nr: 21023299 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 12-33 428A DATE: April 20, 2021 ORDER Entitlement to a rating of 70 percent for bipolar disorder is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT The Veteran’s bipolar disorder manifests by symptoms productive of occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for a disability rating of 70 percent and no higher for bipolar disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9432. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1961 to April 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in January 2016. A transcript of that hearing is of record. This matter was remanded by the Board in April 2016, April 2020, and October 2020. The Board finds there has been substantial compliance with its remand directives for the claims decided herein. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has already been assigned a TDIU throughout the period on appeal. Entitlement to a rating in excess of 50 percent for bipolar disorder The Veteran contends that his psychiatric symptoms warrant the assignment of a rating higher than the 50 percent that had been assigned by the Agency of Original Jurisdiction (AOJ). Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran’s entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran’s disability, 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. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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). The issue on appeal is whether the symptoms associated with the Veteran’s bipolar disorder cause the level of impairment required for a disability rating higher than 50 percent. A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130. The Board concludes that the Veteran’s psychiatric symptoms cause a level of impairment contemplated by a disability rating of 70 percent and no higher. An April 2010 private evaluation found that the Veteran has occupational and social impairment with deficiencies in work, family relations, judgment, thinking, and mood. A June 2015 VA examination also found occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. A November 2009 VA examination noted that the Veteran had difficulty holding a job, and that he reported being unable to work due to his moods, grandiosity, and inability to get along with others. In a June 2015 VA examination the Veteran described difficulty functioning at work because of his poor memory and frequent arguments with others. A January 2016 private evaluation concluded that as a result of the Veteran’s bipolar disorder, he has to be considered vocationally disabled and unable to perform any type of substantially gainful employment. The Board concludes that the Veteran’s symptoms do cause deficiency in the area of work. An April 2010 private evaluation noted that the Veteran had very poor relationships and pushes people away from him, such that he has no relationship with his siblings and minimal contact with two sons. The Veteran frightened away girlfriends with his inappropriate anger. An October 2017 VA treatment note indicates that the Veteran was in the process of getting his third divorce. Therefore, the Board finds that the Veteran’s bipolar symptoms cause a deficiency in the area of family relations. A March 2011 VA treatment note relates an incident where the Veteran had an argument with an employee of a store. The Veteran became very angry and “lost control,” such that in April 2011 he reported that he had been banned from any branch of this store. A February 2012 VA treatment note indicates that the Veteran was sent for a crisis evaluation after threatening to kill an employee who he believed provided poor service at the pharmacy where he was picking up medication. These incidents reflect that the Veteran has a deficiency in the area of judgment that is the functional equivalent of impaired impulse control such as unprovoked irritability with periods of violence. The Veteran has reported suicidal ideation on multiple occasions, including a November 2009 VA examination. At this examination he also reported problems with his attention and concentration. An April 2010 private evaluation found that the Veteran’s though processes were severely impaired with illogical thinking, flight of thought, and tangential thinking. The private evaluation found some paranoid delusions related to various exposures in the navy, and severe obsessional thinking with intrusive thoughts impeding activity. The Veteran thus suffers from deficiency in the area of thinking. The Veteran reported consistent problems with his anger in a December 2016 VA examination. This difficulty with anger informs the other problems discussed above. The Veteran thus suffers from near-continuous anger affecting his ability to function appropriately and effectively, which constitutes a deficiency in the area of mood. The Veteran’s bipolar symptoms cause deficiencies in the areas of work, family relations, judgment, thinking, and mood, which warrants the assignment of a rating of 70 percent. A rating higher than 70 percent is not warranted because he does not suffer from total occupational and social impairment. Although the Board recognizes that he is unable to obtain or maintain substantially gainful employment due to his service-connected disabilities, as is indicated by the TDIU he has been assigned throughout the period on appeal, the Board notes that he has reported working part-time. He told the December 2016 VA examiner that he runs a hurricane protection company in which he works approximately two times per week, and interacts with vice presidents of the company with whom he has a satisfactory relationship in spite of frustrations arising out of a language barrier. An August 2017 VA treatment note indicates that he continues to work part-time in hurricane protection with good social support from friends and sons. Therefore, he is capable of limited occupational functioning and interpersonal interaction. Moreover, his report of good social support from friends and family indicates some social functioning. The Board recognizes that this report is inconsistent with earlier notations in the record indicating more severe social limitations, and interprets the inconsistencies as indicating that the Veteran’s level of social functioning fluctuates such that at times he can work in a limited capacity and maintain relationships with others, but others he cannot. Although the Veteran ultimately divorced his most recent ex-wife, he was able to begin and maintain a romantic relationship and marriage with her for part of the period on appeal, which is also indicative of some level of social functioning, even if this functioning fluctuates. Although the Veteran has some symptoms that fall under the criteria for a 100 percent rating in the General Rating Formula for Mental Disorders, the criteria are merely examples, not an exhaustive list. When rating a psychiatric evaluation, the Board is to consider a veteran’s overall social or occupational impairment, not focus on a specific set of symptoms in the rating criteria. Mauerhan, 16 Vet. App. at 442. In this case, as is noted above, the Veteran’s overall impairment is severe but not the equivalent of total occupational and social impairment. Although the Veteran has arguably exercised grossly inappropriate behavior on two occasions, when he was banned from the chain store and threatened to kill an employee at the pharmacy, these two incidents are of such frequency to describe his usual demeanor and manner of interacting with others. The Veteran reported only showering once per week in the November 2009 VA examination. This finding is contradicted elsewhere in the record, including the April 2010 private examination finding that he showers almost daily and brushes his teeth twice per day, and is well groomed, and VA treatment records where he is regularly described as adequately or well-groomed. A private mental health evaluation from December 2008 that was received in June 2009 found that the Veteran’s limitation on adhering to basic standards of neatness and cleanliness was only slight. The Board thus finds that any infrequency in showering is not usual behavior on the part of the Veteran and is more appropriately described as neglect of personal hygiene, which is contemplated by the 70 percent rating assigned, as noted in the June 2015 examination, rather than an inability to perform activities of daily living. An April 2010 private examination finds gross impairment in thought processes and communication, and notes some paranoid delusions related to the Navy and exposures. It is unclear to the Board what these delusions are, but as they are not referenced elsewhere in the record, and the Veteran’s treatment notes consistently indicate that he has no evidence of hallucinations or delusions, the Board finds that whatever delusion the April 2010 private examiner noted was an infrequent outlier and not indicative of persistent delusions. As to the Veteran’s contention that his condition would be worse if he did not take medication, the Board notes that the General Rating Formula for Mental Disorders specifically contemplates the effects of medication. Therefore, it is appropriate for the Board to consider the ameliorative or helpful effects of the Veteran’s medication. Jones v. Shinseki, 26 Vet. App. 56 (2012). For the foregoing reasons, the Veteran’s bipolar symptoms warrant the assignment of a rating of 70 percent and no higher throughout the period on appeal. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Budd, 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.