Citation Nr: 21024288 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-22 665 DATE: April 22, 2021 ORDER Entitlement to a rating of 70 percent, but no higher, prior to August 22, 2018, for bipolar disorder type II with posttraumatic stress disorder (PTSD), is granted. Entitlement to a rating of 100 percent, beginning August 22, 2018, for bipolar disorder type II with PTSD, is granted. REMANDED Entitlement to service connection for paroxysmal atrial fibrillation and Tachy-Brady syndrome (hereinafter “heart disability”), to include as due to herbicide exposure, and to include as secondary to a service-connected psychiatric disability, is remanded. FINDINGS OF FACT 1. Prior to August 22, 2018, the occupational and social impairment of the Veteran’s bipolar disorder type II with PTSD was manifested by deficiencies in most areas. 2. Beginning August 22, 2018, the Veteran’s bipolar disorder type II with PTSD was manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 70 percent, but no higher, prior to August 22, 2018, for bipolar disorder type II with PTSD, have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Codes 9411, 9432 (2020). 2. The criteria for entitlement to a rating of 100 percent beginning August 22, 2018, for bipolar disorder type II with PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. 4.7, 4.130, Diagnostic Codes 9411, 9432 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps (USMC) from September 1961 to May 1966. This case comes before the Board of the Veterans’ Appeals (Board) on appeal of January 2014 and January 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran and his spouse testified before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. This case was previously before the Board in February 2019, at which time the issues currently on appeal were remanded for additional development. This case has been returned to the Board for further appellate action. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was also remanded by the Board in February 2019. However, a review of the record shows that in a February 2021 rating decision, the Veteran was granted entitlement to a TDIU, effective April 19, 2013. The effective date assigned for the TDIU in the February 2021 rating decision was the date of claim for entitlement to service connection, and actually preceded the Veteran’s actual claim of entitlement to a TDIU, which was received by VA in October 2013. There was no pending claim for an increased rating at the time the Veteran filed his claim of entitlement to a TDIU. As such, the February 2021 grant of entitlement to a TDIU constitutes a full grant of that benefit that was sought on appeal. Therefore, the Board has limited its consideration accordingly. The Board notes that in a July 2020 rating decision, the Veteran was assigned a 100 percent rating for his bipolar disorder type II with PTSD, effective June 4, 2019. That does not constitute a full grant of the decision sought on appeal. however, the Board has limited its consideration accordingly. Increased Rating – Bipolar Disorder The Veteran asserts that the symptoms of his bipolar disorder type II with PTSD were more severe that what was contemplated by the assigned rating prior to June 4, 2019. In an August 2015 mental health note, the Veteran was noted as having ongoing depression manifested by down mood, amotivation, anhedonia, and decreased energy. It was also noted that the Veteran’s memory was grossly intact, his language was intact and fluent, he had limited insight and fair judgement, and no suicidal or homicidal ideations. In a February 2016 mental health note, it was noted that the Veteran reported being tired, short of breath, groggy, and sleepy. At that time, the Veteran was assessed as having grossly intact memory; a thought process that was linear, logical, and non-racing; limited insight and fair judgement; and no suicidal or homicidal ideation. In June 2016, the Veteran again reported that he was tired all the time. In December 2016, the Veteran was afforded a VA examination. At that time, the Veteran reported that he spent most of the day laying on the couch and watching TV because of poor motivation, and that he rarely had the energy to do things. The VA examiner assessed that the Veteran’s symptoms included depressed mood, anxiety, chronic sleep impairment, impairment of short- and long-term memory, disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. However, the VA examiner also assessed that the Veteran was oriented to person, place, and time, and that he had no impairment of thought processes or communication. The VA examiner ultimately assessed that the Veteran’s level of occupational and social impairment was manifested by reduced reliability and productivity. In a March 2017 mental health note, the Veteran stated that he was depressed and had decreased motivation, but that he cared about his wife and enjoyed doings things in life. It was assessed that the Veteran was talking at normal tone, rate, and rhythm, and in complete and logical sentences. In an April 2017 mental health note, the Veteran reported that he had a down mood and needed a kicker. The Veteran also noted that his medication helped him sleep better but that he was fatigued during the day. The Veteran was assessed as having grossly intact memory, limited insight, fair judgement, a thought process that was linear, logical, and non-racing, and no suicidal or homicidal ideations. In July 2017, the Veteran was afforded another VA examination. At that time, the Veteran reported decreased pleasure, sleep disturbance and decreased energy nearly every day, depressed mood, low self-worth, difficulty concentrating, and psychomotor retardation more than half the days. The VA examiner assessed that the Veteran’s symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. However, the VA examiner assessed that the Veteran’s condition had not significantly worsened since 2016. Additionally, the VA examiner assessed that the Veteran retained his cognitive, emotional, and behavioral capacity to engage in simple tasks in a loosely supervised environment. Further, the VA examiner indicated that Veteran’s mood and level of irritability indicated better performance in a position with low stress and flexibility. Ultimately the VA examiner assessed that the Veteran’s level of social and occupational impairment was reduced reliability and productivity. In a November 2017 treatment note, it was noted that the Veteran reported ongoing trouble getting off the couch due to amotivation and short-term memory problems. At that time, it was noted that the Veteran’s memory was grossly intact, he had limited insight and fair judgement, and no suicidal and homicidal ideations. In June 2018, the Veteran reported that he thought his mirtazapine may be causing symptoms of fatigue, lack of energy, and low motivation. During the August 2018 Board hearing, the Veteran testified that his symptoms were manifested by: quite a bit of depression, being easily aggravated, dreams that resulted in him punching his wife and throwing himself out of bed, crying spells, suicidal thoughts, aggression toward others, weekly problems controlling his anger, issues maintaining attention and concentration, constant forgetfulness, impulsive buying (e.g. buying two cars in one day), lapses in judgements, auditory hallucinations, and anxiety issues. In an August 2018 private psychological evaluation report, the Veteran was reported as stating that he found it easier to stay in the house so that he did not run across any problems. The examining psychologist, Dr. J.R., assessed that the Veteran’s mood was reflective of significant tension, irritability, depression, and constricted affect. Additionally, Dr. J.R. reported that the Veteran’s symptoms included persistent worries that something bad will happen, panic attacks, feeling apathetic and no motivation, and the tendency to withdraw or isolate himself. However, Dr. J.R. also assessed that there was no evidence of formal thought disorder, hallucinations, delusions, or any florid or major underlying psychopathology. Further, Dr. J.R. noted that the Veteran had normal thought process; clear speech that was somewhat pressured; was oriented to person, place, and time; and had no suicidal or homicidal ideations. Dr. J.R. ultimately assessed that the Veteran’s psychological disturbance resulted in moderate to marked psychological disability and that the duration of the disability was likely to be long lived. Dr. J.R. also assessed that the Veteran’s present psychological condition precluded him from employment. In a November 2018 treatment note, it was objectively noted that the Veteran would likely benefit from a home safety visit to ensure that his medications were managed correctly. At that time, the Veteran was also objectively observed to be more impaired with a greater self-care deficit. Additionally, there was a notation to ask the Veteran’s psychiatrist about concerns of dementia. However, a prior November 2018 treatment note revealed that the Veteran’s psychiatrist did not find reason to initiate an evaluation for dementia. The Board finds that entitlement to a rating of 70 percent prior to August 22, 2018, for bipolar disorder type II with PTSD is warranted. Prior to August 22, 2018, the Veteran’s psychiatric disability was manifested by occupational and social impairment with deficiencies in most areas. In this regard, the evidence of record demonstrates that the Veteran had near-continuous depression which affected his ability to function effectively due to loss of motivation; impaired impulse control in the form of an inability to control his anger and unprovoked irritability; and difficulty adapting to stressful circumstances. Therefore, when his disability was considered as a whole, based on the evidence of record, the Veteran’s symptoms warrant a rating of 70 percent prior to August 22, 2018. 38 C.F.R. § 4.130, Diagnostic Codes 9411, 9432 (2020). The Board acknowledges that the results of the VA examinations, the symptoms described in the VA examination reports and the treatment notes of record do not indicate that the Veteran has experienced all of the symptoms associated with a 70 percent rating. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, the Board’s finding that there is social and occupational impairment with deficiencies in most areas is sufficient to warrant a 70 percent rating for the entire period on appeal prior to August 22, 2018. The Board finds that the Veteran is not entitled to a rating in excess of 70 percent, prior to August 22, 2018, for his bipolar disorder type II with PTSD. In that regard, the Veteran’s bipolar disorder type II with PTSD was not manifested by total occupational and social impairment. Specifically, the evidence of record did not reveal that the Veteran had impaired speech, judgement, thinking, or thought process. The Veteran was not found to be a danger to himself or others. Additionally, the Veteran was able to maintain his own personal hygiene and had not been found unable to manage his financial affairs. The Board acknowledges that the Veteran experienced some memory loss, but does not find that it arose to the level of forgetting his own name or the names of relatives. As such, a 100 percent rating for bipolar disorder type II with PTSD was not warranted prior to August 22, 2018. 38 C.F.R. § 4.130, Diagnostic Codes 9411, 9432 (2020). The Board finds that entitlement to a rating of 100 percent for bipolar disorder type II with PTSD is warranted beginning August 22, 2018, the day of the Veteran’s Board hearing at which he reported his psychiatric impairment had increased in severity. In this regard, the evidence of record revealed that the Veteran’s psychiatric disability was manifested by total occupational and social impairment beginning that date. The Board notes that the Veteran had an inability to perform daily activities such as administering his own medication; an inability to control his emotions (to include crying spells and uncontrolled anger); panic attacks and anxiety; significant depression and isolation from others; objective reports of self-care deficits from a medical professional; and preclusion from performing full-time employment in a competitive setting or under direct supervision. As noted above, the Board notes that the symptoms enumerated under the schedule for rating disabilities serve as examples, as opposed to an exhaustive list, of the type of symptoms that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Therefore, the Board’s finding that there is total social and occupational impairment is sufficient to warrant a 100 percent rating beginning August 22, 2018. 38 C.F.R. § 4.130, Diagnostic Codes 9411, 9432 (2020). REASONS FOR REMAND Heart Disability The Veteran asserts that his heart disability is related to his active service, specifically his in-service diagnosis of scarlet fever, or, alternatively, his service-connected bipolar disorder type II with PTSD. In the February 2019 remand, the Board directed that the Veteran be afforded a VA examination to determine the nature and etiology of any currently present heart disability. A review of the record shows that the Veteran was afforded the directed VA examination in June 2019. However, a review of that examination report shows that the medical opinions provided were inadequate as the Veteran failed to provide an adequate supporting rationale. Therefore, the Board finds that the development conducted does not adequately comply with the February 2019 Board remand directives. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, forward the Veteran’s claims file to a VA examination to determine the nature and etiology of amu currently present heart disability. The examiner must review the claims file, and indicate the review in the report. Based on the review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently present heart disability had its onset during the Veteran’s active service, or is otherwise etiologically related to such service, to specifically include his exposure to herbicides and/or his in-service episode of Scarlet fever. The examiner must also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently present heart disability was caused or chronically worsened by a service-connected disability, to specifically include increased stress levels resulting from the Veteran’s service-connected PTSD. A complete and detailed rationale for all opinions expressed must be provided. Another VA examination of the Veteran should only be conducted if deemed necessary by the examiner providing the requested medical opinions. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand, and undertake any other development. 4. Then, readjudicate the remaining issue on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock 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.