BVA9507390 DOCKET NO. 91-11 920 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an increased evaluation for a service-connected bipolar disorder, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Edward D. Bohne, Attorney WITNESSES AT HEARING ON APPEAL Appellant and C. Jeungst ATTORNEY FOR THE BOARD Christopher P. Kissel, Associate Counsel INTRODUCTION The appellant served on active duty from October 1948 to March 1951. This matter came before the Board of Veterans' Appeals (the Board) on appeal from an August 1989, rating decision of the Phoenix, Arizona, Department of Veterans Affairs Regional Office. In September 1991, the Board remanded this case for further development. The Chicago, Illinois, VA Regional Office (VARO) issued a rating decision in August 1992, which confirmed and continued the previous denial for an increased disability evaluation. In a decision dated January 26, 1993, the Board denied the appellant's claim seeking an increased disability evaluation for his service-connected bipolar disorder. The appellant duly appealed the Board's decision to the United States Court of Veterans Appeals (hereinafter "the Court"). In February 1994, Counsel for the Secretary submitted a response to the appellant's brief, requesting a motion for remand and a stay of proceedings pending a ruling on the motion. An Order of the Court dated in March 1994, granted the Secretary's motion for remand and vacated the Board's January 1993, decision. The case was remanded for further evidentiary development, readjudication and disposition in accordance with the Court's order. [citation redacted]. The requested development on remand to VARO in May 1994, was accomplished, to the extent possible, and the case has been returned to the Board for further appellate review. Accordingly, the Board will proceed to a disposition on the claim which is presently certified for appellate consideration. See Certification of Appeal, VA Form 1-8 (confirmed on February 18, 1995). The Board notes that a claim seeking entitlement to a total disability rating based on individual unemployability due to service-connected disability was raised on appeal to the Court. This claim is presently being developed by the agency of original jurisdiction and since it is not "inextricably intertwined" with the pending increased rating claim it will not be further considered by the Board at this time. See Parker v. Brown, 7 Vet.App. 116 (1994) (the subjective factors that are the core of a total rating claim based on individual unemployability are "easily extricable" and therefore can be adjudicated without necessarily reexamining or reopening the underlying objective disability rating). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that his service-connected bipolar disorder is more disabling than currently evaluated. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that a preponderance of the evidence is against the appellant's claim for entitlement to an increased disability evaluation for his service-connected bipolar disorder. FINDING OF FACT The appellant's service-connected psychiatric disability, presently diagnosed as a schizoaffective reaction, depressed, chronic, is manifested by subjective complaints of mood swings and depression with essentially negative clinical findings on mental status examination in September 1994, representative of mild social and industrial impairment. CONCLUSION OF LAW The appellant's service-connected bipolar disorder is no more than 10 percent disabling pursuant to the schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 3.321, Part 4, Diagnostic Code 9206 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board determines that the appellant's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). Furthermore, the undersigned believes that this case has been adequately developed for appellate review by VA, and that a disposition on the merits is now in order. I. Factual Background Service medical records indicate that the appellant was hospitalized between April 7, 1950 and February 16, 1951, for an acute schizophrenic reaction. Upon discharge, his condition was reported as improved and in partial remission. A VA pension examination was conducted in February 1953. At that time, the appellant reported no complaints. He reported that after discharge from the service he got married, bought a home and a car, found steady employment, and was adjusting well. Physical and neurological examinations were entirely within normal limits. Mental status examination was reported as within normal limits, including denials of any delusions or hallucinations. Diagnosis was schizophrenic reaction, chronic, in partial remission. A VA compensation examination (VAX) conducted in February 1956, was significant for the appellant's complaints of nervousness and having little or no patience. At that time he reported steady employment since October 1953, with the Arizona Public Service Company (APSC) as an apprentice lineman, with 2 days sick leave due to flu and cold. He reported that he was adjusting well, except that he worried about his financial situation and his ability to adequately support his family. Mental status examination was entirely normal. Diagnosis was schizophrenic reaction, catatonic type, in remission. A VAX was conducted in February 1957. The appellant reported having a short temper and suffering from periods of anxiety and occasional headaches. He reported continued employment with the APSC with one additional day lost due to a cold since his last examination. Mental status examination was entirely normal. However, the examiner noted that he appeared somewhat anxious and tense. Upon further inquiry, the appellant described a lifelong pattern of anxiety attacks, conditioned by childhood experiences. He stated that his father was an anxious and tense individual who made others around him feel anxious as well. Diagnosis was schizophrenia, catatonic type, in remission. No further medical evidence of record pertinent to the appellant's disability appears until 1969, when he was hospitalized at the VA Hospital (VAH) in Phoenix, Arizona, for an acute psychotic episode. A discharge summary report indicated that he was hospitalized between January 24 and February 7, 1969. At that time, he reported increased work related stress. He was placed in a closed ward and given high doses of Thorazine, 800 mg per day. Within three days, his condition was reported as "reconstituted rapidly." He was discharged with instructions to take Thorazine, with gradual reduction, and to seek continued outpatient evaluation. He was subsequently hospitalized at VAH, Phoenix, AZ, on multiple occasions between September 3, 1970 and February 21, 1971, for continuous unresponsive hyperactivity, restlessness, elated mood, errors in judgment, and inappropriate behavior. He was initially evaluated as unresponsive to Thorazine treatment. Over the course of those hospitalizations, his diagnosis was changed to manic depressive reaction, manic type, and he was prescribed Lithium. Upon discharge in February 1971, he was described as markedly improved with new medication regime. Laboratory, physical, and neurological clinical findings were entirely within normal limits. He was next hospitalized at VAH, Phoenix, AZ, between November 9 and December 3, 1971, for an acute psychotic episode. During the course of his hospitalization he improved rapidly and remarkably on Elavil, Prolixin, Stelazine, and Artane. The appellant was hospitalized at the VAH in St. Louis, Missouri, between July 25 and August 9, 1974, with complaints of insomnia and anxiety of approximately three day's duration, not relieved by current medication. At the time of admission, the appellant demonstrated poor orientation and some looseness of association, yet no signs of hyperactivity. During the course of his stay, he began to demonstrate hyperactivity which required high doses of Thorazine for adequate control. The examiner opined that his episodic anxiety was most probably precipitated by family problems, since he was noted to be expressing a great deal of hostility towards his family, especially his wife. It was recommended that he seek family therapy upon his return home to Phoenix. Discharge diagnosis was manic depressive psychoses (circular type), hypomanic phase, in remission. It was also recommended that his current prescription be changed. Discharge medication was Thorazine and Lithium Carbonate. VAX for psychiatric rating purposes was conducted in September 1974. Mental status examination was reported as normal, except that he appeared depressed. Diagnosis was manic depressive psychosis, circular type, in substantial remission. The examiner noted that the appellant had been employed as a lineman with APSC for the past 20 years. He was described as managing well on Thorazine and Lithium Carbonate. In addition to the above, discharge summary reports showing multiple periods of hospitalization between January and May 1975, reflect treatment and evaluation for episodic psychotic reactions and depression. In those reports, the appellant was reported as demonstrating a flat and depressed affect mainly associated with marital and family troubles. No additional medical evidence appears of record until 1978, when the appellant's disability was evaluated for rating purposes on VAX conducted in April 1978. At that time, he reported steady employment with APSC since October 1953. His medical history was summarized as significant for multiple acute psychotic reactions since 1950. Mental status examination was entirely normal. Diagnosis was manic depressive psychosis, in remission. VAX conducted in October 1982, was significant for the appellant's chief complaint of "[f]its of temper...they come and go...the medication helps a lot." The appellant denied any severe flare- ups of either manic or hypomanic symptoms since 1975. At the time of the examination, he reported that he was presently employed as a utility lineman with APSC for the past 29 years. He reported that his disability was well controlled with current medications of Lithium Carbonate and Mellaril. Personal history was significant for 31 years of marriage with three children. He reported that he and his wife remained socially active. Mental status examination was entirely within normal limits. Diagnosis was bipolar disease, manic, now in remission with Lithium Carbonate. Also of record is a report of a psychiatric evaluation conducted in October 1983, at the request of the appellant's employer. Apparently, and with his stated disagreement, he had recently been considered "non-productive" by his employer. At that time, he had 30 years of employment with APSC. His medical history was significant for a psychiatric disorder since 1950; diverticulitis since 1980, well controlled on medication; a duodenal ulcer diagnosed in 1982; a left inguinal herniorrhaphy performed in May 1983; and, an onset of chest pains and weakness reported in June 1983. A coronary catheterization conducted in June 1983, showed 95 percent blockage of the right anterior descending coronary artery. A coronary angioplasty was performed in July 1983. During that time, he lost 90 days of work. Since that time, he reported occasional chest pain and persistent physical weakness. On examination, he reported a current medication regimen of Oxazepam and Lithium Carbonate. Mental status examination was entirely within normal limits. The examiner diagnosed a bipolar affective disorder, controlled with medication, based on review of the appellant's available medical file and his report of medical history. As to his capacity for work, the examiner opined that his psychiatric disorder was of sufficient degree to impair work productivity and that he should therefore be considered a candidate for long-term employee disability benefits. VA outpatient treatment records dating from October 1982 to March 1985, revealed that the appellant was seen on multiple occasions for complaints associated with his non-service connected disabilities, including a duodenal ulcer, coronary artery disease, and atypical chest pain. A report dated October 21, 1983, revealed that he was very angry because his employer was pressuring him to retire because of his heart problem. A report dated December 21, 1983, revealed that he was recently retired as a lineman for APSC and was keeping busy around the house. A psychological functioning examination was conducted in February 1985, by a private physician. Degrees of impairment of his abilities to function in various aspects of work were rated from "none" to "severe." The examiner opined that the appellant's disability resulted from a combination of his depression and his coronary heart disease. VA outpatient treatment records dating from May 1988 to July 1989, are also of record. Reports dated from May through August 1988, indicated that the appellant was currently taking Lithium and Trilafon, with a diagnosis of bipolar disorder in remission. Reports dated from January through April 1989, indicated continued evaluation of his psychiatric disorder on medication. Report dated in July 1989, revealed that he was still on his medication but was having some anxiety and difficulty sleeping. Impression made at that time was bipolar disorder in remission, with instructions to continue Lithium and Trilafon medication. While he was considered asymptomatic for his disability, the report indicated that he could not maintain employment in a competitive labor market. Also of record is the appellant's testimony elicited at hearing held at the Phoenix, AZ, VA regional office on January 17, 1990. He testified that his nervous disorder had increased in severity. He stated that his medications were no longer effective and he seemed to be having increasing difficulties in thinking clearly and making decisions. A personal friend testified that he had known the appellant for the last 35 to 40 years, and in his opinion, the appellant's disability had increased in severity. A consultation report from the VA Medical Center, St. Louis, MO, dated February 22, 1990, was submitted subsequent to his personal hearing. In the report, the appellant was described as a 61 year old divorced veteran, retired from the APSC who had moved to Illinois after living in Phoenix, AZ, for the past 37 years. On examination he reported that he was in good health and was presently living alone on a farm in Illinois. His affect was noted as calm, relaxed, affable, loose, cooperative, and euthymic. Diagnosis was questionable schizophrenia based on his report of past medical history and current medication. The appellant was hospitalized at the St. John's Hospital, Springfield, IL, between September 7-14, 1990, with admitting complaints of agitation, disorientation, loss of sleep, and religious delusions. Current medications were Lithobid, Veetids, Aspirin, Isosorbide, Diltiazem, and Nitroglycerin for chest pain. Physical and mental status examinations were unremarkable. Questionable compliance with Lithium medication to control his psychiatric disorder was noted. Pertinent operative procedure performed was titration to determine adequate Lithium dosage. His heart condition was reported as well controlled with current medication. Final diagnosis was bipolar disorder, manic, and atherosclerotic heart disease. His condition was noted "good" on discharge, with medications to include his current regime and Haldol. The appellant was subsequently transferred from the St. John's Hospital to the VA Medical Center, Danville, IL, and hospitalized for continued psychiatric evaluation from September 14 to October 2, 1990. Reason for admission was stated as "mental problems." At that time, he reported feeling fatigued and sleepy. Mental status examination was entirely normal, except that he appeared depressed. Physical examination was significant for evidence of Parkinsonian tremors, dry skin and emphysematous chest. Medication regimen at time of discharge included Lithium, Lithobid, Diltiazem, Isordil, and Aspirin. He was noted to be completely asymptomatic for his psychiatric disorder. Pertinent diagnosis was bipolar disorder, mixed. A special psychiatric VAX requested pursuant to the Board's September 1991, remand was conducted in February 1992. At that time, his entire medical history was reviewed by the examining VA physician in conjunction with the appellant's current complaints of mood swings, described as "...touch and go." He reported that his mood swings were worse now than in the past year or so, but they were much worse 20 years ago. Current medication for his disability was Lithium. Subjective complaints included feelings of despair, suicidal thoughts, escape wishes, hopelessness, inadequacy, and vulnerability to mood swings. He reported no acute manic episodes since his last VAX. He reported being retired from APSC for the past 10 years. Presently, he reported living on a farm. He indicated a desire to live in a quiet environment. Social history was significant for being remarried after a divorce from his wife of 35 years. He reported that his first wife committed suicide. He gave no further details concerning her reported suicide, but denied any current family dysfunctions or marital discord. He reported being socially inactive, enjoying a solitary but not seclusive lifestyle. Mental status examination was entirely normal, with no evidence of psychotic thought content. Diagnosis was bipolar disorder, manic and depressed, with cycling pattern. Another special psychiatric VAX requested pursuant to the Board's May 1994, remand was conducted in September 1994. The appellant's entire medical history as contained in the claims folder was "carefully" reviewed by the examining VA physician in conjunction with the examination. Subjectively, it was noted that the appellant reported being retired for past eleven years. Further, the appellant reported that he was "always at home," "frequently in bed, but otherwise sedentary," and that he was "detached from others." However, he reported that he desired to be detached from others "for quietness." In addition, the appellant reported that he was markedly depressed and currently suffering from hypersomnia, weakness, fatigue, withdrawal, as well as feelings of futility. His medication regimen of Lithium for his psychiatric disorder was unchanged since his last VAX. Objectively, it was noted that the appellant displayed limited contact with the examiner but that he was passive and compliant. He responses to the examiner's inquiries were also limited except with highly structured direct questioning. With respect to his reported symptoms, the examiner noted "[h]e talks about being avoidant, of being protective, but shows no actual loss of reality testing and denies hallucinatory phenomena." The appellant specifically denied any suicidal ideations and no major cognitive deficits were demonstrated on examination. Findings were significant only for a depressed mood. He was considered competent within the meaning of VA regulations. The examiner did not believe that any additional diagnostic or clinical testing was necessary. Diagnoses established on the basis of the above were schizoaffective reaction, depressed, chronic; alcoholism, by history, currently abstaining; and, Parkinsonism. II. Analysis The schedular criteria provide that bipolar disorder, manic, depressed, or mixed, resulting in mild impairment of social and industrial adaptability warrants a 10 percent disability rating; the next higher disability rating (30 percent) is warranted for definite impairment of social and industrial adaptability. 38 C.F.R. § 4.132, Diagnostic Code 9206 (1994). The term "definite," as reflected by the 30 percent disability rating, has been construed by the General Counsel of the VA to mean "distinct, unambiguous, and moderately large in degree." See VA O.G.C. Prec. 9-93 (Nov. 9, 1993). It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." Id. The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c) (West 1991). With respect to social inadaptability, impairment resulting from a ratable psychiatric disorder is to be evaluated only as it affects industrial adaptability. 38 C.F.R. § 4.129 (1994). Initially, the Board notes that the appellant has been service- connected for his disability at a 10 percent rating since the early 1950's. The objective medical evidence to date, which covers over forty years of treatment and evaluation, is clinically significant for acute and episodic psychotic reactions occurring in 1969, 1970, 1971, 1974, 1975 and in 1990. The record reveals that he was prescribed Thorazine in 1969, after suffering his first post-service episodic reaction. Thorazine treatment was changed to Lithium in 1971, when it was discovered that his Thorazine treatment was ineffective. The 1974 episodic reaction was similarly affected by ineffective current medication. He was then prescribed Thorazine and Lithium Carbonate. VAX conducted in September 1974, noted his disorder to be in substantial remission, well controlled with medication. VAXs conducted in 1978 and 1982, noted his disorder to be in remission, well controlled on Lithium Carbonate. His 1990 episodic reaction appears to have been precipitated by questionable compliance with his Lithium prescription. VAX conducted in February 1992, was negative for any current symptomatology associated with his disability. The appellant described his disability at that time as characterized by "mood swings" which were much worse 20 years ago. The more recent medical evidence of record, as reflected by the report of VAX conducted in September 1994, describes the appellant as having a "chronic" schizoaffective disorder manifested by subjective complaints of depression and multiple neurovegetative symptoms, with essentially negative clinical findings on mental status examination, other than a depressed mood. Significantly, it was noted at the time of the September 1994, VAX that the appellant displayed no evidence of active psychoneurotic symptomatology attributable to his psychiatric disorder. Further, it was noted that his medical history had been negative for any recurrences of behavioral disturbances since his last known period of psychiatric hospitalization in 1990. In addition, it was noted that his medication regimen of Lithium had remained stable since his last VAX in 1992. Finally, the examining VA physician concluded that additional diagnostic and clinical testing was not necessary in view of the objective findings found on examination. In the opinion of the Board, the disability picture presented is consistent with "mild" social and industrial impairment. The medical evidence of record, which dates from February 1953 to September 1994, is negative for any clinical findings showing an increase in the functional severity of the disability. It appears that the disability has been adequately stabilized with medication since 1969, significant only for a history of episodic reactions in the early 1970's and in 1990, when it was determined that his medication was either ineffective at that time or was not taken by the appellant as prescribed. With respect to industrial impairment, the Board notes that the appellant maintained steady employment with the same company for 30 years, between 1953 and 1983, with no time lost ever reported due to his bipolar disorder. Notwithstanding his contentions to the contrary, it appears that he retired in 1983 due to multiple medical disabilities and their complications, most significantly due to a non service-connected heart condition. In summary, there is no evidence of record which shows any current industrial impairment which has been attributed to his service-connected bipolar disorder. The Board has considered the provisions of 38 C.F.R. § 4.7, but finds that the disability picture presented does not more nearly approximate the criteria for the next higher schedular evaluation (30 percent). The appellant's statements and testimony concerning his symptoms, and the statements made on his behalf by his friend, C. Jeungst, have been considered by the Board but are found to be outweighed by the objective medical evidence. The voluminous medical evidence of record, when reviewed in a longitudinal manner, simply does not show that his symptoms are of such severity as to warrant an increased evaluation at this time. Upon consideration of the appellant's description of his symptoms, coupled with the medical evidence of record, the Board believes that the record is insufficient to support a finding of functional impairment which is greater than is reflected by the currently assigned 10 percent disability rating. In view of the above findings with respect to his degree of industrial impairment, the Board concludes that application of the extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (1994). There is no evidence that his bipolar disorder disability presents by itself such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Hence, referral by VARO to VA officials under the above-cited regulation was not required. For the reasons discussed above, it is apparent that the evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required under the provisions of 38 U.S.C.A. § 5107(b). ORDER The appeal is denied. KENNETH R. ANDREWS, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.