Citation Nr: 21031863 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-52 630 DATE: May 24, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for bipolar II disorder with anxiety is denied. REMANDED Entitlement to service connection for a low back condition is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to a disability rating in excess of 20 percent for right carpal tunnel syndrome is remanded. Entitlement to a disability rating in excess of 20 percent for left carpal tunnel syndrome is remanded. FINDING OF FACT The severity, frequency, and duration of the Veteran's bipolar II disorder with anxiety symptoms did not more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for Entitlement to a disability rating in excess of 70 percent for bipolar II disorder with anxiety have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9432. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 2009 to October 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2014 and November 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Portland, Oregon and Waco, Texas, respectively. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a January 2021 virtual Board hearing. A transcript of that hearing has been associated with the claims file. Entitlement to a disability rating in excess of 70 percent for bipolar II disorder with anxiety. The Veteran contends that her bipolar II disorder with anxiety should be rated at 100 percent. 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 in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). 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. The Veteran was afforded a VA mental disorders examination in May 2014. Diagnoses of bipolar II and anxiety, not otherwise specified, were noted. It was noted that comorbidity of depression and anxiety makes it difficult, if not impossible, to differentiate the symptoms. Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. Symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting, and suicidal ideation were noted. Additionally, the Veteran endorsed a history of hypomania with limited need for sleep, grandiosity, racing thoughts, excessive energy and difficulty with concentration, attention and focus. The Veteran was afforded a VA mental disorders examination in August 2015. A diagnosis of bipolar II disorder, most recent episode depressed, with anxious distressed was rendered. The Veteran reported being depressed nearly every day with feelings of being worthless, unloved and a failure. She further reported near daily suicidal ideation, though without plan or intent. She also reported anxiety and worrying of impending doom and of "things getting out of control." Occupational and social impairment with reduced reliability and productivity was noted. She reported attending university full time and being 1 year from completing a bachelor's degree in management. She further reported having a real estate license and being 1 test away from obtaining a broker's license. Symptoms of depressed mood, anxiety, panic attacks occurring weekly or less, chronic sleep impairment, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, suicidal ideation and impaired impulse control such as unprovoked irritability with periods of violence were noted. The examiner stated that the Veteran's symptoms "may interfere with work relationships and reduce her ability and productivity in a work setting." The Veteran was afforded a VA mental disorders examination in July 2020. A diagnosis of bipolar II disorder, most recent episode depressed, with anxious mood was noted, as was occupational and social impairment with reduced reliability and productivity. The Veteran reported going to the emergency room on a few occasions when she has run out of her medication, as well as for panic attacks, and described "distinct periods of elevated mood to include increased energy combined with heightened irritability." She further described depressed periods of sadness, hopelessness, poor sleep, forgetfulness and loss of interest in activities." She then reported having "ruptures in relationships with others." She reported working as a real estate agent for the prior 14 years, but not making any money recently, noting that her back issues have led to her not being able to work as much as she would like. She further expressed hope that her bachelor's degree would be completed within the next 6 months. Symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once per week, chronic sleep impairment, mild memory loss, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships were noted. The Veteran testified at the January 2021 Board hearing that her memory is bad, that she is very forgetful and cannot focus. She then stated that she has sleep and social issues. VA treatment records, as well as the above discussed VA examinations, and the Veteran's lay statements show that the Veteran's bipolar II disorder with anxiety was manifested by symptoms associated with a 70 percent rating (depressed mood, anxiety, suspiciousness, panic attacks more than once per week, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, irritability and difficulty in establishing and maintaining effective work and social relationships). The Board also notes that the record reflects that the Veteran has maintained a real estate license, has frequently endorsed working in real estate and has frequently endorsed attending school and previously being active in her church. The Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The Board notes that the Veteran expressed suicidal ideation in an October 24, 2014 VA treatment record due to experiencing homelessness, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The VA treatment records throughout the period on appeal show Veteran regularly denied thoughts, intent, or a plan involving self-harm. While the Veteran did experience suicidal ideation, which is contemplated by a 100 percent rating, the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. A disability rating in excess of 70 percent for PTSD has not been approximated at any time throughout the period of the claim. At no time during the appeal has the record demonstrated 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. As such, the Board finds that the weight of the evidence demonstrates that the Veteran's PTSD does not meet any of the criteria for a 100 percent rating and that her symptoms are substantially less than those reflective of a 100 percent rating. Consequently, the Veteran does not more nearly meet or approximate the criteria for a 100 percent rating. See 38 C.F.R. § 4.7. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See, Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to service connection for a low back condition is remanded. The Veteran has reported experiencing low back pain since marching with a rucksack while in service. As such, it is unclear whether the Veteran's low back condition is related to her service. Thus, the Veteran should be afforded a VA examination to determine the nature and etiology of her low back condition. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to a TDIU is remanded. Because a decision on the remanded issues of entitlement to service connection for a low back condition, and entitlement to a higher disability rating for bilateral carpal tunnel syndrome, could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined and a remand is required. 3. Entitlement to a disability rating in excess of 20 percent for right carpal tunnel syndrome is remanded. 4. Entitlement to a disability rating in excess of 20 percent for left carpal tunnel syndrome is remanded. The Board notes that the veteran was last afforded a VA examination for rating purposes for his bilateral carpal tunnel syndrome in August 2015. As such, the need for a thorough and contemporaneous evaluation, as well as the age of the last examination, weigh in favor of remand for a new examination. Weggenmann; Schafrath. See also 38 C.F.R. § 3.326 (a). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for her low back condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran's low back disability at least as likely as not related to service, including marching while wearing a heavy rucksack? The examiner's attention is invited to a January 20, 2010 service treatment record which notes x-rays revealed mild levoscoliosis in the lumbar spine. The examiner must address the Veteran's contention that in either 2009 or 2010 she was marching while wearing a rucksack weighing more than 100 pounds when her back "snapped", requiring a steroid injection, and that she has experienced low back pain ever since. Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Is it at least as likely as not that the low back disability (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected bilateral carpal tunnel syndrome. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of TDIU. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. C. TRUEBA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brian P. Keeley 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.