Citation Nr: 1761183
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 14-344 97A ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUE

Entitlement to an initial rating in excess of 70 percent prior to November 4, 2016, for schizoaffective disorder, bipolar type (psychiatric disability) (previously referred to as anxiety disorder).

ATTORNEY FOR THE BOARD

P. Daugherty, Associate Counsel

INTRODUCTION

The Veteran served in the United States Navy with active duty from December 1985 to October 1998.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted the Veteran service connection for an anxiety disorder and assigned an initial evaluation of 30 percent.

This claim was previously before the Board in June 2016, at which time the Veteran’s claims for entitlement to an initial rating in excess of 30 percent for anxiety disorder and entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) were remanded for further development, to include a new VA examination. The claim has now returned to the Board for further appellate action.

Pursuant to the Board’s June 2016 remand directives, the Veteran was afforded a new VA examination in connection with his claims in February 2017, at which time the Veteran’s service-connected psychiatric disability was clarified to be schizoaffective disorder, bipolar type, and the issue has been recharacterized accordingly on the title page. Stegall v. West, 11 Vet. App. 368 (1998); Clemons v. Shinseki, 23 Vet. App. 1 (2009). Following the Veteran’s February 2017 VA examination, a March 2017 rating decision granted the Veteran’s claim for entitlement to a TDIU and increased the Veteran’s initial evaluation for schizoaffective disorder to 70 percent prior to November 4, 2016, and 100 percent thereafter. As the increase for the Veteran’s initial evaluation is not a full grant of benefits on appeal, the issue of entitlement to an increased rating for schizoaffective disorder, bipolar type, for the period prior to November 4, 2016, remains on appeal. A.B. v. Brown, 6 Vet. App. 35 (1993).

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014).

FINDING OF FACT

Prior to November 4, 2016, the Veteran’s psychiatric disability was manifested by total occupational and social impairment, due to such symptoms as: auditory hallucinations, severe impulse control, and occasional suicidal ideations.

CONCLUSION OF LAW

The criteria for an initial rating of 70 percent for schizoaffective disorder, bipolar type, prior to November 4, 2016, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

VA has a duty to notify and assist claims in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103(A) (West 2014); 38 C.F.R. § 3.159 (2016). However, as discussed below, the Board is granting the Veteran’s claim in full for his claim for entitlement to an initial rating in excess of 70 percent for schizoaffective disorder, bipolar type, prior to November 4, 2016, no further discussion of the statutory duty to notify the Veteran and to assist him in the development of this claim is necessary.

II. Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1.

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.

Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

The Board observes that the words “slight,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6 (2017). It should also be noted that use of descriptive terminology such as “mild” by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104 (a) (West 2014); 38 C.F.R. §§ 4.2, 4.6.

Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C.A. § 7104 (a) (West 2014). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran is service-connected for schizoaffective disorder, bipolar type, which is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran contends that he is entitled to an initial rating in excess of 70 percent prior to November 4, 2016.

Under 38 C.F.R. § 4.130, Diagnostic Code 9411, 70 percent disability evaluation is warranted when there is 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. Id.

A 100 percent disability evaluation is warranted when there is 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 of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id.

The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.” Id, at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id, at 443.

A Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, represents the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. GAF scores included in the record are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).

In this regard, the Board acknowledges that effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV, AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994). The amendments replace those references with references to the recently updated DSM-5, and examinations conducted pursuant to the DSM-5 do not include GAF scores. As the Veteran’s increased ratings claims were certified to the Board after August 4, 2014, DSM V applies. Since the most recent VA examination in August 2014 considered the Veteran’s disorder under DSM-V, the Board finds that it may proceed to consider the merits of the claim.

With the above criteria in mind, the Board finds that the Veteran’s overall psychiatric disability picture more closely approximates the criteria for a 100 percent rating prior to November 4, 2016. In coming to this conclusion, the Board notes that the Veteran consistently received treatment for his psychiatric disabilities since he was discharged from active duty service. The competent evidence of record, as detailed below, shows that from the date that the Veteran was granted service connection for his psychiatric disability, it has been characterized by depression, sleep impairment, hyper-religiousness, auditory hallucinations, impaired impulse control, social relationship problems, and occupational problems. These symptoms resulted in the Veteran’s total occupational and social impairment.

Specifically, the Board notes that in a September 2010 VA examination for the Veteran’s claim for entitlement to service connection for a Traumatic Brain Disease (TBI), the examiner noted very severe symptoms of poor concentration, difficulty making decisions, slowed thinking and difficulty getting organized, having difficulty sleeping, feeling anxious or tense, feeling depressed or easily annoyed. The VA examiner asked the Veteran how these symptoms interfered with his life the past 30 days and the Veteran responded “extremely, in all areas of my life.” See, September 2010 VA examination.

Additionally, the Board notes that the Veteran was hospitalized for his psychiatric symptoms multiple times for symptoms such as hyper-religious delusions, auditory hallucinations, depression, passive suicidal thoughts, impulse spending and gambling, and problems maintain a primary support group. See, post-service treatment records dated September 2012, May 2014, January 2015, May 2015, and December 2015. A review of the record also reflects that the Veteran would frequently miss his mental health appointments and would occasionally stop taking his prescription medication. See, post-service treatment record dated August 2016. With respect to occupational impairment, the Board notes the Veteran was unable to consistently maintain any employment and that the Veteran was fired in May 2011 from a job that he started in October 2011 because he was late to work 33 times in that time period. See, May 2011 correspondence from Veteran’s previous employer.

Accordingly, the Board finds that the Veteran’s schizoaffective disorder, bipolar type, is manifested by total social and occupational impairment prior to November 4, 2016, and therefore, the Veteran’s overall disability more closely approximates the criteria for a 100 percent rating. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411.

In coming to this conclusion, the Board has not overlooked the Veteran’s August 2014 VA examination or the notes in the Veteran’s post-service treatment records which indicate that the Veteran was well-oriented, appropriately groomed, and displayed the appropriate affect. However, the Board has assigned the August 2014 VA examiners opinion with low probative value as the purpose of this examination was to determine whether or not the Veteran had a diagnosis of PTSD. Accordingly, there is no opinion provided regarding the Veteran’s previous hospitalizations, no mention of his symptomatology at that time, and although it was noted that the Veteran was experiencing auditory hallucinations, the examiner only did not provide a thorough rationale for why she concluded that the Veteran had occupational and social impairment due to mild or transient symptoms. See, August 2014 VA examination. With respect to the notations in the Veteran’s post-service treatment records that he was well-groomed, well-oriented, and displayed the appropriate affect, the Board finds that these do not accurately reflect the Veteran’s overall disability picture. Specifically, these occur at times where the Veteran is consistently following his medication and being seen frequently by mental health professionals or immediately following hospitalizations. Regardless of the occasions where the Veteran is reported to have appropriate orientation, the Board finds that his consistent symptoms of persistent hyper-religious delusions and auditory hallucinations, poor impulse control, depression, suicidal thoughts, and inability to maintain social relationships render the Veteran totally occupationally and socially impaired prior to November 4, 1996.

ORDER

Entitlement to an initial rating of 100 percent prior to November 4, 2016, for schizoaffective disorder, bipolar type, is granted, subject to the laws and regulations governing VA compensation.

____________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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