Citation Nr: 0006110 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 94-41 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for a bipolar disorder, currently rated as 50 percent disabling. 2. Entitlement to a total disability rating for compensation purposes, based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The veteran served on active duty from October 1961 to October 1964 and from November 1967 to April 1969. The instant appeal arose from an October 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida, which denied a claim for an increased rating for a bipolar disorder. This case was remanded by the Board of Veterans' Appeals (Board) in July 1996 for further development. This appeal also arose from a May 1999 rating decision, which denied a claim for a total disability rating, based on individual unemployability. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's sole service-connected disability is a bipolar disorder which is shown to be productive of a severe social and industrial impairment ensuing a schedular disability rating consistent with a 70 percent. 3. The veteran's service-connected psychiatric disorder is of such severity as to preclude him from securing and pursuing a substantially gainful employment. CONCLUSIONS OF LAW 1. The schedular criteria for a rating of 70 percent for the veteran's bipolar disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9432 (1999); 38 C.F.R. § 4.132, Diagnostic Code 9206 (1996). 2. The criteria for the assignment of a schedular 100 percent evaluation under 4.16 have been satisfied. 38 U.S.C.A. §§ 5107, 7104 (West 1991); 38 C.F.R. § 4.16 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), in that he has presented claims which are plausible. The Board further finds that VA has fulfilled its statutory duty to assist the veteran to develop facts in support of his claims. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board remanded the case in 1996 for further development, including a VA examination as well as a social and industrial survey. Also, all available service medical records and VA treatment records have been obtained. The veteran has not asserted, and there is nothing in the file that would suggest that there are pertinent records missing. A disposition on the merits is now in order. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In the determining the rating to be assigned for a particular service-connected disability, the entire recorded history, including the medical and industrial history, together with the report of the most current rating examination is review as a whole, and then compared to the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1999). The Board must basically attempt to determine the extent to which a service-connected disability adversely affects the veteran's ability to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.2, 4.10 (1999). 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 (1999). Furthermore, it is the Board's responsibility to weigh the evidence before it. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In so doing, the Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 1991). According to other applicable regulations, when evaluating a mental disorder, consideration must be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a) (1999) The Board notes that the VA's Schedule for Rating Disabilities, 38 U.S.C.A. § 1155; 38 C.F.R. § 4.132 provides a general rating formula for psychiatric disorders, based upon the degree of incapacity or impairment. In November 1996, during the pendency of this appeal, VA amended its regulations applicable to the rating of mental disorders. See 61 Fed. Reg. 52,695-702 (Oct. 8, 1996) (codified at 38 C.F.R. §§ 4.125-130 (1999)). Where the law or regulation changes after a claim has been filed but before the administrative or judicial appeal has been concluded, the version most favorable to the claimant will apply. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). In this case, the RO has reviewed the issue of entitlement to an increased rating for the veteran's psychiatric disorder under the old and under the revised criteria, and the veteran has received notice of both criteria, as evidenced by the supplemental statement of the case issued in May 1999. However, the Board will independently resolve the claim under the criteria that, in the view of the Board, is more advantageous or more favorable to the veteran as per the holding in Karnas. Based on the evidence on file, the application of either the old or the new criteria would result in an increased rating. However, the Board finds that given the particular circumstances and specific factual scenario presented in this case, the criteria that was in effect prior to the November 1996 regulatory changes seem to be, at this time, more beneficial to the veteran. See West v. Brown, 7 Vet. App. 70, 76 (1994); Hayes v. Brown, 5 Vet. App. 60, 66-67 (1993), and also VAOPGCPREC 11-97, 62 Fed. Reg. 37953 (1997), where the VA General Counsel provided additional guidance with respect to the rating of mental disorders when the law or regulation changes after a claim has been filed, but before the administrative or judicial appeal has concluded. According to the former criteria, a 100 percent evaluation contemplates active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. A 70 percent contemplates lesser symptomatology such as to produce severe impairment of social and industrial adaptability. A 50 percent would be for application when there is considerable impairment of social and industrial adaptability. 38 C.F.R. Part 4, Diagnostic Code 9206 (1996). The veteran was awarded service connection for schizophrenia in a June 1970 rating decision. A 30 percent disability evaluation was initially assigned; however, since that time, his psychiatric disability has been assigned ratings of 10, 30, 50, 70, and 100 percent for varying periods of time. The current 50 percent disability evaluation has been in effect since June 1984, except for some periods when a temporary total rating was assigned based on the veteran's periods of hospitalization. His psychiatric disability was recharacterized as bipolar disorder since the March 1984 decision. In August 1991 the veteran filed the current claim for increase following a two-week period of hospitalization at the VA Medical Center (VAMC) in Gainesville, Florida for hypomania. He presented to the VAMC in July 1991 with high energy level and racing thoughts after stopping his Lithium because "God told him to." He had abruptly quit his job because his employers were "setting him up" and "playing with his mind." The veteran had divorced for the fifth time the previous month. The evidence in the claims file includes the treatment records from the VA Outpatient Clinic in Daytona Beach, Florida, and the VAMC dated between January 1990 and May 1999. Reports of VA outpatient treatment show that the veteran was seen approximately ten times in 1991 at the mental hygiene clinic following the July 1991 hospitalization. These records show that even tough the veteran was stable, he was also described as non-functional. VA outpatient records show that the veteran was again seen approximately four times at the mental hygiene clinic in 1992. Once he was described as hypomanic with good control, and his medication was adjusted. He testified at a December 1992 hearing before RO personnel that he had numerous jobs every year, primarily in the building trade, including maintenance, carpentry, and plumbing. He stated that he was living with his parents, whom he did not always get along with, and that he had a new girlfriend about every three months. In February 1993 the veteran's father brought him into the emergency room of Halifax Medical Center, in Daytona Beach, Florida, and reported that the veteran was decompensating. The emergency room evaluation shows that the veteran was agitated, rambling, and very delusional. He stated that he was an Indian chief and a close friend of President Nixon. He also reported that he communicated with God daily. He appeared unkempt, and he had impaired judgment and insight. His symptoms subsided with medication. In March 1993 he was transferred to the VAMC and was described as partially stabilized. His speech was occasionally pressured, his affect was slightly anxious, and his judgment and insight were described as fair. In December 1997 the veteran was interviewed by a VA social worker in connection with a social and industrial survey. According to the social worker, the veteran had lived with his parents until six months earlier and that since then he had been living with his girlfriend with whom he had an "off and on" relationship. His sister stated that she had a good relationship with him. The veteran stated that he had two children who lived out-of-state whom he had seen once in the last three years, and his most recent marriage, his fifth, ended in 1987. He had been self-employed for the last three years and stated that, while he had applied for numerous jobs, he preferred to remain self-employed so he would not have to interact with coworkers. The social worker concluded that "[t]he most glaring evidence that the veteran lacks the ability to establish and maintain effective relationships is by virtue of the fact that he has been married five times and for the past four years he has had an apparently unstable relationship with his current girlfriend." However, the report also noted that he "has been able to maintain a strong relationship with his sister and his parents, even though his parents are sometimes intimidated by his behavior." The report noted that the veteran was able to maintain self-employment, albeit at a very low income. The veteran underwent a VA mental disorders examination in January 1998. He reported discrete periods where he had a depressed or an elevated mood, which lasted a week or two at a time. He indicated that he became psychotic sometimes during the manic episodes and that he had been hospitalized six months previously. The diagnosis was "[b]ipolar affective disorder, Type I, currently doing fairly well." His Global Assessment of Functioning (GAF) score was 60. The examiner stated that the veteran "has had moderate difficulty in occupational and social functioning." The examiner noted that the veteran had "great difficulties" in the past as evidenced by GAF scores in the range of 31-40 and impairment in reality testing, communication, family relations, judgment, and thinking. The veteran was hospitalized at the VAMC from March 5 to 11, 1998, with an admitting diagnosis of bipolar affective disorder, depressive phase. He reported increased anxiety, impaired concentration, insomnia, and depressed mood. He also had thoughts of overdosing on aspirin, although he had made no attempt to do so. Recent stressors included being diagnosed with melanoma in December 1997 with subsequent hospitalization for excision and follow-up chemotherapy treatment. He also stated that he was planning to move out of his girlfriend's house as they had not been getting along for six months. Mental status examination revealed normal hygiene and dress with calm, cooperative behavior and mild psychomotor retardation. He described his mood as depressed and his affect was constricted and appropriate. During his hospitalization the veteran participated in the ward activities and was cooperative. His discharge diagnoses were adjustment disorder with depressed mood and bipolar disorder "currently in remission." His GAF score was 60 to 70. The veteran was hospitalized at the VAMC again from September 18 to 25, 1998, with an admitting diagnosis of adjustment disorder and bipolar affective disorder. His GAF at admission was 40-50. He reported that his mood had been "all over the place" and he wanted it stabilized. He stated that he had quit taking his medications because he felt his current medicine regime was ineffective. The veteran was extremely agitated on admission. By the second day, the veteran's privileges were increased. He was cordial, polite, and cooperative to nursing staff, his irritability decreased, and he gained better control throughout his stay. His GAF at discharge was 50. Reports of VA outpatient treatment show that in March 1999 the veteran underwent a VA general medical examination. It was noted that the veteran was taking Lithium, Restoril, and Valium for control of his psychiatric symptoms. A manic episode was noted once yearly and the examiner noted that "there has been no real difficulty with depressive features of his illness." Bipolar disorder was diagnosed and was noted to be "under good control at present on the above- noted medical regimen." During a March 1999 VA mental disorders examination the veteran reported episodes of mania and depression that lasted more than one week. He stated that he could think of five occasions when he was noncompliant with his medication and he ended up in a psychiatric hospital with manic symptoms. The examiner concluded that "[d]ue to a history of recurrent medication noncompliance, profound psychiatric symptomatology including manic and psychotic symptoms (when off meds) and two recent admissions last year, it would be difficult[] for [the veteran] to maintain steady work." The examiner noted that the veteran was competent, but that the assignment of a guardian was recommended since, when the veteran becomes noncompliant with his Lithium, "he rapidly deteriorates to the point of having psychotic symptomatology." It is clear from the evidence of record that while the veteran can function better when his is under medication, he does suffer from mental impairment that significantly affects his daily living. In order to function marginally, but still with prominent manic and psychotic symptoms, he requires a strict compliance with his medications. As indicated by the recent examiner, when the veteran becomes noncompliant he develops psychotic manifestations and deteriorates rapidly. This prompts his hospitalization for the control of his symptomatology. This catch-22 situation led the physician to recommend the designation of a guardian. The Board has reviewed all of the probative evidence of record and the veteran's statements on appeal. The clinical documentation shows that the veteran continues to be treated for severe depression and psychosis. His GAF scores have ranged over the years from 40 to 70 with an average of 60. These scores are consistent with a severe overall impairment in his social and industrial functioning. Accordingly, the Board finds that a 70 percent disability evaluation would be a more accurate reflection of the level of disability associated with the veteran's service connected psychiatric disorder. While the evidence does not clearly establishes that the veteran has active psychotic manifestation of such extent, severity and bizarreness as to produce total social and industrial inadaptability, the evidence nevertheless demonstrates that he has significant difficulty with employment despite the fact that he has engaged in some irregular odd jobs. The VA records revealed that he had numerous jobs over the pendency of this appeal. In addition, it was noted in the most recent VA psychiatric examination report that it would "be difficult[] for [the veteran] to maintain steady work" due to his bipolar disorder. Total disability will be considered to exist when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total ratings for compensation purposes are authorized for any disability that is found to be sufficient to produce unemployability without regard to advancing age. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.340, 3.41 (1999). The United States Court of Veterans Appeals (Court) has held that where the schedular disability rating is less than 100 percent, a total disability rating may be assigned if a veteran is rendered unemployable as a result of service- connected disabilities, provided that certain regulatory requirements are met. See, e.g., Holland v. Brown, 6 Vet.App. 443, 446-47 (1994). See also Gary v. Brown, 7 Vet.App. 229, 231 (1994). Pursuant to 38 C.F.R. § 4.16 (1999): (a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. As noted above, VA psychiatrists have found that the veteran experiences vocational impairment as he is unable to maintain a steady job because of his bipolar disorder. VA outpatient treatment records show that he was seen for treatment approximately ten times in 1991 at the mental hygiene clinic. These records show that even tough the veteran was stable, he was also described as non-functional. The evidence indicates that he has been hospitalized a number of times during recent years, and while he can do some odd jobs at a marginal level, the fact is that due to the unpredictability of his symptoms, it can not be said that he is capable of maintaining a substantially gainful occupation. His periods of "remission" appear to be rather short and he seems to have a poor capacity for adjusting to a regular or ordinary daily living. His family and social relationships are volatile and people, particularly family members feel intimidated by him. The veteran's sole service-connected disability is bipolar disorder, which as discussed above, is now evaluated as 70 percent disabling. Accordingly, the veteran does meet the percentage requirements as set forth in § 4.16 (1999). Although the veteran has actively pursued limited employment in the past few years, the evidence shows that he has been incapable and unable to secure and follow a substantially gainful employment due to the inconsistent manifestations of his bipolar disorder. The benefit-of-the-doubt rule "provides that 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 issue shall be given to the claimant.' 38 U.S.C.A. § [5107](b)." While the evidence may not be totally unequivocal, the evidence nevertheless shows that the veteran is to a great extent prevented from obtaining and sustaining substantially gainful employment due to his psychiatric disorder. See, Hatlestad v. Derwinski, 1 Vet.App. 164, 170 (1991), Moore v. Derwinski, 1 Vet.App. 401, 406 (1991), and O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991). Accordingly, the Board concludes that the preponderance of the evidence supports a finding that the veteran meets the requirements for a 100 percent rating under the provisions of 38 C.F.R. § 4.16 (1999). ORDER Entitlement to an increased evaluation to 70n percent for a bipolar disorder, and a total rating under the provisions of 38 C.F.R. § 4.16 (1999) is granted, subject to the law and regulations governing the awards of monetary benefits. JOAQUIN AGUAYO-PERELES Member, Board of Veterans' Appeals