BVA9502471 DOCKET NO. 92-55 784 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased evaluation for a bipolar affective disorder, currently evaluated as 50 percent disabling, including entitlement to a 100 percent rating under the provisions of 38 C.F.R. § 4.16(c)(1993). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his psychiatrist ATTORNEY FOR THE BOARD Carolyn Wiggins, Associate Counsel INTRODUCTION The veteran served on active duty from November 1966 until May 1969. This appeal arises from a May 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California which denied an increased evaluation for a bipolar disorder. This case was remanded in August 1992 to obtain treatment records and for further psychiatric evaluation. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that an increased evaluation for his bipolar disorder is appropriate in that the various manifestations of this disability are more severe than currently evaluated and are productive of a greater degree of impairment than is reflected by the evaluation currently assigned. 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. 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 the evidence supports the grant of a 100 percent evaluation for a bipolar disorder under the provisions of 38 C.F.R. § 4.16 (c)(1993). FINDINGS OF FACT 1. The veteran's bipolar disorder is demonstrated by periods of mania and depression, and causes him to decompensate under minimal stress; the clinical findings are compatible with severe impairment of social and industrial adaptability. 2. The veteran's service-connected bipolar disorder is of sufficient severity to prevent him from engaging in substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW 1. A 100 percent evaluation is warranted for bipolar disorder. 38 U.S.C.A. § 1155, 5107 (b) (West 1991); 38 C.F.R. § 4.16(c) and Part 4, Diagnostic Code 9206 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). He has presented a claim which is plausible. The Board is satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a) (West 1991). Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the rating schedule. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). The VA has the duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet.App 589 (1991). These regulations include 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition. The provisions of 38 C.F.R. § 4.2 require that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10 provides that in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or systems, and medical examiners must furnish, in addition to the etiological, anatomical, pathological, laboratory, and prognostic data required for ordinary medical classification, a description of the effects of the disability upon the person's ordinary activity. A 50 percent rating is provided for a bipolar disorder when it is productive of considerable impairment of social and industrial adaptability. A 70 percent evaluation is provided for a bipolar disorder when it is productive of symptomatology which is less than that required for a 100 percent evaluation , but which nevertheless produces severe impairment of social and industrial adaptability. A 100 percent evaluation requires active psychotic manifestations of such extent, severity, depth, persistence, or bizarreness as to produce complete social and industrial inadaptability. 38 C.F.R. Part 4, Diagnostic Code 9206(1993). 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, unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. In cases in which the only compensable service-connected disability is a mental disorder assigned a 70 percent evaluation, and such mental disorder precludes a veteran form securing or following a substantially gainful occupation, the mental disorder shall be assigned a 100 percent schedular evaluation under the appropriate diagnostic code. 38 C.F.R. § 4.16 (c) (1993). At the time this case was remanded by the Board in August 1992, the evidence of record revealed that the veteran had an Associate of Arts degree, indicating the equivalent of 2 years of college education. He had occupational experience as an operator or dispatcher for a protection services company. There was a report of private hospitalization of record covering the period August 21, 1988 to September 23, 1988. He was very actively psychotic at this time. It appears that he returned to employment after this hospitalization, but that he had been unemployed since February 1989. At an RO hearing in March 1991, the veteran's psychiatrist testified that the veteran required extensive medication for his psychiatric disorder and decompensates with even minimal stress. We found the testimony probative and credible in August 1992. There was also a report of a VA examination in June 1991. It was reported that the veteran was alert and cooperative, that he had no problem with memory or recall and there was no evidence of a thought disorder. The veteran stated that he was doing well, but that the previous week he had been unable to function. The claims folder contains VA records of outpatient treatment reflecting the veteran's participation in the Day Treatment Program and vocation rehabilitation during 1992. These reveal that the veteran has periods of depression and mania. He had difficulty with his memory and difficulty remembering directions. A VA psychiatric examination in June 1993 resulted in a diagnosis of manic depressive disorder. Mental status examination did not reveal any overt psychotic manifestations. The veteran's affect was slightly constricted. It was noted that the veteran was taking 1500 milligrams of Librium per day and 200 milligrams of Thorazine at bedtime. The examiner reviewed the veterans psychiatric history. The examiner stated: "It is equivocal if not doubtful that the veteran is employable at this time." The evidence in the claims folder indicates that the veteran is not presently experiencing active psychotic manifestations. He does however experience periods of depression and has reported that some days he is unable to get out of bed due to its severity. He continues, even on medication, to have cycles of highs and lows. His psychiatrist has indicated that he decompensates when subjected to stress. The veteran has demonstrated severe impairment of social and industrial adaptability due to the service-connected psychosis, and, on this basis, 70 percent evaluation is appropriate. The veteran has been unable to work since early 1989. His private psychiatrist and VA psychiatrist have both stated their opinion that he is presently unemployable. Although the veteran did not specifically request that the issue of unemployability be considered, it can be inferred from his request for an increased rating. 38 C.F.R. § 4.16(c) provides that where it is established that a veteran is unable to work solely due to a service-connected psychiatric disorder, which is the only compensable service-connected disability, and which meets the requirements for a 70 percent rating, he should be awarded a 100 rating for his psychiatric disorder. The veteran has participated in occupational therapy at a private psychiatric hospital and the Day Treatment Program at the VA. His attempt to return to his former job was not successful. It is clear that the veteran is not presently employable. The Boards finds that a 100 percent evaluation for a bipolar disorder under 38 C.F.R. § 4.16(c) is warranted in this case. (CONTINUED ON NEXT PAGE) ORDER A 100 percent evaluation for a bipolar disorder under the provisions of 38 C.F.R. § 4.16(c)is granted, subject to laws and regulations governing the award of monetary benefits. BRUCE E. HYMAN 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.