Citation Nr: 18154104
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 15-42 073
DATE:	November 29, 2018
ORDER
Entitlement to a 70 percent rating for unspecified bipolar disorder, formerly a mood disorder (claimed as any acquired psychiatric disorder to include bipolar disorder), for the period prior to April 17, 2017 is granted.
Entitlement to a rating in excess of 70 percent for unspecified bipolar disorder, formerly a mood disorder (claimed as any acquired psychiatric disorder to include bipolar disorder), for the period beginning April 17, 2017 is denied.
FINDING OF FACT
1. Prior to April 17, 2017, the psychiatric symptoms shown included suicidal ideation and impaired impulse control.
2. From April 17, 2017, the psychiatric symptoms exhibited have been more clinically characteristic of those contemplated by the criteria for a 70 percent evaluation, rather than those for a 100 percent evaluation.
CONCLUSION OF LAW
1. The criteria for a 70 percent rating for unspecified bipolar disorder, formerly a mood disorder (claimed as any acquired psychiatric disorder to include bipolar disorder) for the period prior to April 17, 2017 have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.126a, 4.130, Diagnostic Code 9435.
2. The criteria for a rating in excess of 70 percent for unspecified bipolar disorder, formerly a mood disorder (claimed as any acquired psychiatric disorder to include bipolar disorder) for the period beginning April 17, 2017 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.126a, 4.130, Diagnostic Code 9435.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from September 2003 to October 2004.
This appeal comes before the Boards of Veterans’ Appeals (Board) from an September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.
The Veteran was originally assigned a 50 percent disability rating, effective January 26, 2012, for a mood disorder (claimed as any acquired psychiatric disorder to include bipolar disorder) in the September 2013 rating decision on appeal. During the pendency of this appeal, a Decision Review Officer (DRO) issued an August 2018 rating decision, recharacterizing the Veteran’s disability as unspecified bipolar disorder, formerly a mood disorder (claimed as any acquired psychiatric disorder to include bipolar disorder) and increased the rating to 70 percent, effective April 17, 2017. The Veteran has not withdrawn his appeal for a higher rating, and therefore, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993).
The Board observes that the Veteran reported in an August 2018 VA treatment note that he will be starting a warehouse job with a vitamin company, and the Veteran has not expressly raised the issue of entitlement a total disability evaluation based upon individual unemployability. This case raises no further issues, other than those adjudicated below.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017).
INCREASED RATING
Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Any doubt regarding the extent of the disability is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. As the Veteran’s representative has pointed out, 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 
In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. Peyton v. Derwinski, 1 Vet. App. 282 (1991).
Under the General Rating Formula for mental disorders, a 50 percent evaluation is contemplated where there is occupational and social impairment with reduced reliability and productivity due to such symptoms 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9435.
A 70 percent evaluation is warranted where 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 worklike setting); inability to establish and maintain effective relationships. Id.
A 100 percent evaluation is warranted where 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 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. Id.
Evaluations under 38 C.F.R. § 4.130 are “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed in DC 9414 are not intended to constitute an exhaustive list, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas”-i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9414. 
When evaluating the level of disability arising from a mental disorder, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, 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. See 38 C.F.R. § 4.126(a). However, the rating agency shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2.
1. Entitlement to a rating in excess of 50 percent for mood disorder (claimed as any acquired psychiatric disorder to include bipolar disorder) for the period prior to April 17, 2017.
Prior to April 17, 2017, the Veteran’s service connected disability was characterized as mood disorder and rated at 50 percent under 38 C.F.R. § 4.85, Diagnostic Code (DC) 9435. The Veteran filed a notice of disagreement in September 2015, seeking a rating in excess of 50 percent.
In a VA Mental Disorders (Other than PTSD and Eating Disorders) Disability Benefits Questionnaire (DBQ) dated April 2012, the Veteran was diagnosed with mood disorder (NOS), but the examiner noted that there is not enough information available, stating “[t] is insufficient information to establish or rule out a bipolar component to the mood disorder.” Symptomatology included: depressed mood, anxiety, chronic sleep impairment, motivation and mood disturbances, difficulty in establishing and maintaining effective relationships, and difficulty in adapting to stressful circumstances.  In addition, the Veteran denied suicidal or homicidal intent but acknowledged suicidal thoughts and a period of researching “crazy stuff.” The examiner opined “that it is as likely as not that the Veteran’s currently diagnosed mood disorder has been worsened by his military service.” Based on the report of this evaluation, the Veteran’s disability was service connected, and the RO provided an initial disability rating of 50 percent.
In a subsequent VA Mental Disorders (other than PTSD and Eating Disorders) DBQ dated September 2013, the examiner diagnosed the Veteran with mood disorder, NOS. In the report, the examiner noted that the Veteran exhibited depressed mood, anxiety, flattened affect, mood and motivation disturbances, difficulty in establishing and maintaining effect work and social relationships, and neglect of appearance and hygiene. The report also noted that the Veteran denied suicidal and homicidal ideation.
The Veteran attended an initial mental health evaluation with a private medical provider in August 2014. In the report, the examiner specifically noted no hallucinations or delusions present. The report also noted that the Veteran’s appearance, behavior, and thought content was appropriate; his thought process was logical; and speech and motor functions were normal. Symptomatology included impaired judgment, impulse control, and concentration; and suicidal ideation (thoughts only).
VA treatment records from April 2014 reveal that the Veteran presented to the ER after taking an unknown quantity of opioid drugs. A mental health consultation was requested based on a concern the overdose was an attempted suicide. The consultation note indicates that the Veteran was receiving psychiatric care with the VA but stopped in September 2013. The Veteran reported a depressed mood and suicidal ideations, but he “adamantly stated that he had not made a suicide attempt today.” The Veteran also denied hearing voices, hallucinations and delusions. The Veteran voiced concern about restricting or limiting drug use stating, “I have a serious drug problem and need help.” 
The Veteran underwent another VA Mental Disorders examination in August 2015. The examination report notes the following symptomatology: depressed mood, anxiety, chronic sleep impairment, motivation and mood disturbance, difficulty adapting to stressful circumstances, impaired impulse control, and intermittent issues maintaining personal hygiene. There was no ritualistic behavior noted however the report continues to note “feelings of worthlessness or excessive guilt and persistent thoughts of death or suicide.”
The Board has reviewed the above findings and observes that there is a question as to whether the Veteran’s psychiatric symptoms prior to April 17, 2017 support a 70 percent evaluation. Much of this analysis centers around the Veteran’s repeated reports of suicidal thoughts. While he denied intent, there is no question that he reported suicidal thoughts on multiple occasions, and on at least one instance suicidal ideation, prior to April 17, 2017. The Board also notes a report of impaired impulse control in August 2014. Taken as a whole, and resolving all doubt in favor of the Veteran, the Board finds that a 70 percent evaluation is warranted for this period. To this extent, the appeal is granted. As specifically detailed below, however, there is absolutely no evidence to support a 100 percent evaluation at any time during the pendency of this appeal.
2. Entitlement to a rating in excess of 70 percent for mood disorder (claimed as any acquired psychiatric disorder to include bipolar disorder) for the period beginning April 17, 2017.
VA treatment notes dated October 2017 reveal that the Veteran stopped engaging with VA mental health services in September 2014. VA treatment notes received in March and May 2017 reveal that the Veteran reengaged in mental health treatment after participation in an inpatient rehabilitation treatment program. 
The Veteran underwent a contract VA Mental Health DBQ in June 2018. The examiner noted that the Veteran’s opioid use disorder was in remission and all symptoms noted could be attributed to the bipolar diagnosis. The examiner reported that the Veteran’s mental disability would cause occupational and social impairment with deficiencies in most areas. Noted symptomatology included depressed mood, anxiety, chronic sleep impairment, short term and long-term memory impairment, flattened affect, impaired judgement, motivation and mood disturbances, difficulty establishing and maintaining effective relationships, difficulty in adapting to stressful circumstances, suicidal ideation, and impaired impulse control. The disability picture revealed since reengagement of mental health treatment more nearly approximates the criteria required for a 70 percent rating prior from April 17, 2017.
The Veteran’s treatment records noted above and the 2018 examination have not shown symptoms contemplated by a 100 percent rating, such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting oneself or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; and the intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Importantly, no medical professional has provided any opinion indicating that the Veteran’s disability results in total occupational and social impairment.
As such, the preponderance of the evidence is against an entitlement to a rating in excess of 70 percent for for the period beginning April 17, 2017; therefore, the Veteran’s appeal is denied for this period.

 
A. C. MACKENZIE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Banks, Associate Counsel 

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