BVA9502426 DOCKET NO. 90-52 616 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a temporary total evaluation based on hospitalization from May 5, to May 31, 1988. 2. Entitlement to a temporary total evaluation based on hospitalization from December 7, 1988, to January 6, 1989. 3. Entitlement to an increased evaluation for bipolar disorder, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from April 1967 to July 1969. This appeal arose from a September 1989 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The RO denied entitlement to temporary total evaluations based on hospitalizations from May 5, to May 31, 1988; and from December 7, 1988, to January 6, 1989. The RO affirmed the foregoing determination in February 1989. The Board of Veterans' Appeals (Board) remanded the case to the RO for further development in April 1991. The RO affirmed the determinations previously entered when it issued a July 1991 rating decision. The Board remanded to case to the RO for further adjudicative procedures in March 1992. The RO denied entitlement to an increased evaluation for bipolar disorder in rating decisions issued in February and April 1993. The Board remanded the case to the RO for further adjudicative actions in January 1994. In an April 1994 rating decision, the RO denied entitlement to service connection for drug abuse as secondary to service- connected bipolar disorder. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that when hospitalized during May 1988, and from December 1988 to January 1989, he was treated for his service-connected bipolar disorder. He argues that the summaries pertaining to the hospitalizations in question show that his service-connected psychiatric disability cannot be discounted as a causative factor precipitating the admissions. The veteran further contends that his psychiatric disability has increased in severity, thereby warranting assignment of an increased evaluation. It is argued that his clinical history clearly shows a chronic need for inpatient care and profoundly limited social and industrial adaptability reflective of a higher level of psychiatric impairment than is recognized in the current 50 percent evaluation. 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 files. 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 record supports grants of temporary total evaluations for bipolar disorder based on hospitalizations from May 5, to May 31, 1988, and from December 7, 1988, to January 6, 1989; and that the preponderance of the evidence is against a grant of an increased evaluation for bipolar disorder. FINDINGS OF FACT 1. The veteran received treatment for service-connected bipolar disorder in excess of twenty-one days when hospitalized from May 5, to May 31, 1988. 2. The veteran received treatment for service-connected bipolar disorder in excess of twenty-one days when hospitalized from December 7, 1988, to January 6, 1989. 3. Bipolar disorder is productive of not more than considerable social and industrial impairment. CONCLUSIONS OF LAW 1. The requirements for a temporary total evaluation based on hospitalization from May 5, to May 31, 1988, have been met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 4.29 (1994). 2. The requirements for a temporary total evaluation based on hospitalization from December 7, 1988, to January 6, 1989, have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.29. 3. The schedular criteria for an evaluation in excess of 50 percent for bipolar disorder have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.132, Diagnostic Code 9206. 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), in that it is at least plausible that when psychiatrically hospitalized in 1988 and 1989, he was treated for his service-connected bipolar disorder; and that his psychiatric disability has increased in severity. The Board is satisfied that as a result of the April 1991, March 1992, and January 1994, remands of the case to the RO for further development and adjudicative actions, all relevant facts have been properly developed, and that no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a). I. Entitlement to a temporary total evaluation based on hospitalization from May 5, to May 31, 1988. A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a VA or approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. It is the contention of the veteran that he was in fact treated for his service-connected bipolar disorder when hospitalized from May 5, to May 31, 1988. The Board agrees. The above noted requirements for a temporary total evaluation are self- explanatory. Simply stated, the issue is whether the veteran's service-connected bipolar disorder was the subject of his hospitalization. In this regard, there are two hospital summaries involved in the May admission. The appellant was initially treated in a private medical facility from May 5, to May 9, and was transferred to a VA medical facility on May 9, where he remained until May 31. The May 5, to May 9, private hospital summary report shows the admission diagnosis was depression with suicidal ideation and that the veteran had been admitted on many previous occasions for the same or similar complaints. It was noted that he had a longstanding relationship with the local VA hospital. During the current admission, he was restarted on his previous medications. The veteran's depression seemed to be significant. His attendant psychiatrist questioned whether the appellant was truly suicidal. The final diagnosis was bipolar personality disorder with reactive depression secondary to overwhelming family living stress. The VA discharge summary for admission from May 9, to May 31, shows the veteran had a well documented history of bipolar disorder and polysubstance abuse who had been transferred from a private hospital for evaluation of a several week history of severely depressed mood and related vegetative signs associated with numerous recent psychosocial stressors. He related his current difficulties to his domestic situation. His household had been under a number of social stressors. The veteran had noted a sense of overcrowding, feeling as if he wasn't wanted at home, and his difficulties co-existing in the home with a number of alcohol abusers. With a domestic setback about six weeks prior to admission, the appellant noted the onset of a worsening depressed mood, difficulty remembering things, fearfulness, decreased appetite, marked anhedonia, and decreased energy, all of which gradually worsened without abatement over the course of approximately 5 weeks. Late in April he felt that he could not longer cope and moved out of his home to live with a friend. Since then he reported that he had become increasingly despondent, empty, and "really depressed". On mental status examination the veteran was unshaven, despondent-appearing, exhibiting only fair eye contact with paucity of spontaneous motor movements. His speech was somewhat slow, but of normal pitch, volume, and clarity. He stated that he was very depressed and rated his mood a 3 out of 10. He stated that usually his mood was 10 out of 10, although he had made frequent references to suffering a number of vegetative signs for well over a year. Affect was predominantly depressed and appropriate with decreased range. Though processes were of normal rate and flow with tight associations. Thought content was without evidence of delusions, ideas of reference, homicidal ideation, but he admitted to suicidal ideation with plan with equivocal intent. Sensorium was clear and intellectual functions intact. The appellant tended to be preoccupied with thoughts of his daughter and girlfriend. Judgment and insight were fair to good, as he came to the hospital for help, but initially he seemed to display little, if any, insight into the role his substance abuse may play in his ongoing difficulties. Upon admission it was clear that he was suffering from a depressive disorder approximating a major-depressive episode, but it was difficult to sort out the degree to which his personality traits, endogenous illness, substance abuse, and exogenous stressors might be associated with this recent decompensation. The differential diagnosis was therefore quite broad. However, the treatment team ultimately felt that the appellant's underlying personality style and his substance abuse were largely implicated in this recent decompensation. Provided with the structure and social support of the ward, the claimant's mood and vegetative signs improved remarkably over the first week of admission. He showed himself to be very involved on the ward and supportive of other patients and insightful about their problems. The hospital discharge diagnoses were: Axis I, Bipolar disorder, alcohol abuse, polysubstance abuse, and tobacco dependence; Axis II, Dependent and antisocial personality traits, provisional; and Axis II, History of Lithium-induced leukocytosis. The Board's analysis of the foregoing discussed private and VA hospital discharge summaries permits the conclusion that while recognition was taken of the veteran's several variously diagnosed psychiatric disabilities, it was also acknowledged that it was difficult to specifically sort out the degree of involvement of all disabilities. The Board therefore construes the attendant examiner's notes to acknowledge that the service- connected bipolar disorder was in fact treated along with the other acknowledged psychiatric disabilities for which ongoing symptomatology could not be specifically assigned. In other words, although the ultimate impression was that the veteran's underlying personality style and substance abuse were largely implicated, it cannot be stated that bipolar disorder was not also implicated for treatment during the admission nor to what degree it constituted overall psychiatric symptomatology. In situations such as this where the evidentiary record is in somewhat relative equipoise, the Board must resolve such reasonable doubt in the veteran's favor. Gilbert v. Derwinski, 1 Vet.App. 61 (1991). The above recitation of facts points to no other conclusion. The hospital report contains no statement ruling out the service-connected bipolar disorder as a component or contributing element of the appellant's psychiatric symptoms which prompted the subject hospitalization. The attendant examiner admitted the underlying confusion as to the diagnosis to be provided and acknowledged that for such reason the diagnosis must be broad. The Board particularly emphasizes that bipolar disorder, the veteran's service-connected psychiatric disability, was reported as the primary diagnosis, and his non service- connected disorders were secondary thereto. For the foregoing reasons the Board concludes that the veteran was treated in excess of 21 days for his service-connected bipolar disorder when hospitalized by non-VA and VA health care professionals from May 5, to May 31, 1988. 38 U.S.C.A. § 5107' 38 C.F.R. § 4.29. II. Entitlement to a temporary total evaluation based on hospitalization from December 7, 1988, to January 6, 1989. A similar situation exists with respect to the issue of whether the veteran was treated in excess of 21 days for his service- connected bipolar disorder when hospitalized at non-VA and VA medical facilities from December 7, 1988, to January 6, 1989. The reasons provoking the previously discussed admission such as threat of suicide and ongoing depression precipitated the period of admission at issue. Domestic problems figured greatly in the appellant's decline in mental functioning. Furthermore, he discontinued his medications in October 1988. Due to his domestic situation, his depression gradually worsened. On mental status evaluation the veteran classified his mood as 4-5 out of 10. Affect was irritable, but depressed. Speech was slow, but normal in volume, speed, rate, and clarity. Content was significant for suicidal ideation, and negative for audiovisual hallucinations, ideas of reference, thought broadcasting or thought insertion, delusions, or deja vu. Processes were coherent and goal-directed without loosening of association or flight of ideas. Cognitively, the veteran was alert and oriented times four, but refused most of the cognitive questions. The appellant rapidly reorganized and was bright and social on the unit. A family conference was positive for him. He continued to work on his problems in apparently a very positive and productive manner. He made good progress and was discharged. The hospital discharge diagnoses were: Axis I, Bipolar disorder, depressed, alcohol abuse, polydrug abuse; Axis II, Antisocial personality traits; Axis III, History of Lithium-induced leukocytosis; Axis IV, Moderate-to-severe stressors; Axis V, Global function assessment, fair. Again the Board's analysis of the discharge summary shows that the veteran's psychiatric symptomatology has been variously classified. With respect to the admission at issue, the examiners do not specifically state that the appellant's service- connected bipolar disorder was not a contributing factor to the current admission. Moreover, it is not acknowledged that any one constellation of psychiatric symptomatology constituted the basis for the admission. Nevertheless, the appellant's bipolar disorder is reported as the primary disorder or disability diagnosed in the listing of the hospital discharge diagnoses. It is well to note that the symptomatology the appellant complained of at admission was essentially the same for the previously discussed hospitalization. The Board is of the opinion that it would be unreasonable to rule out treatment for bipolar disorder during the admission under discussion in the absence of an affirmative acknowledgment of such by the VA psychiatric attendant examiners. Again the reasonable doubt existing in this case must be resolved in the veteran's favor. Gilbert. The Board finds that the veteran was treated for his bipolar disorder in excess of 21 days when hospitalized by non-VA and VA health care professionals from December 7, 1988, to January 6, 1989. III. Entitlement to an increased evaluation for bipolar disorder, currently evaluated as 50 percent disabling. In accordance with 38 C.F.R. §§ 4.1 and 4.2, and Schafrath v. Derwinski, 1 Vet.App 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of bipolar disorder. The Board has found nothing in the current evidence of record which would lead to a conclusion that the current evidence of record is inadequate for rating purposes. A review of the service medical records discloses that the veteran suffered a psychotic break while serving in Vietnam upon hearing of his wife's desire for a divorce. His psychiatric hospitalization for treatment of his symptomatology resulted in a diagnosis of schizophrenic reaction, paranoid type, chronic, severe. At a February 1970 VA psychiatric examination, the veteran reported that he suffered a nervous breakdown in service while overseas, and another when he returned to the states. His first attack had been precipitated upon receipt of a "Dear John" letter from his wife. He married just prior to his shipment overseas. Since discharge from service he had not been gainfully employed. He had not been able to find a job and was living with a friend. On mental status examination the appellant was in good contact, and well oriented for time, place, and person. The examiner noted he could not bring out any definite delusional trends. The veteran admitted that while in service he thought that people were making fun of him or talking about him. So far as the examiner could tell, the veteran had never made an adequate social or economic adjustment. He slept poorly but had a good appetite. Hallucinations were denied. Affect showed some flattening and at times inappropriate emotional responses to a mild degree. The examiner noted that basically the veteran was an emotionally unstable person who had had a psychotic episode of the schizoid paranoid type while in service. The examination diagnosis was schizophrenic reaction, paranoid type, in partial remission in a basically emotionally unstable personality. The RO granted entitlement to service connection for schizophrenic reaction, paranoid type, in partial remission in a basically emotionally unstable personality which was assigned a 30 percent evaluation when it issued a rating decision in March 1970. Suffice it to say that the record is replete with records of psychotherapy and inpatient care of the veteran through his post-service years for his psychiatric disability. The RO, in rating decisions, accordingly adjusted the evaluation for his psychiatric disability including grants of temporary total evaluations for inpatient care based on the evidence then of record. The rating decisions include action taken by the RO in May 1985, when it granted an increased evaluation of 50 percent for the veteran's psychiatric disability then diagnosed as bipolar disorder. The veteran was hospitalized by VA in January and February 1990 for indicated treatment of a mixed personality disorder with antisocial, narcissistic and borderline traits. It was noted that he could return to full employment immediately. He required inpatient care for polysubstance abuse in June 1991. VA conducted a special psychiatric examination of the claimant in February 1993. In terms of current functioning, the veteran reported that he was doing as well as he had done in a number of years. He was living with others because he had no income. He had not worked in a number of years, feeling that work was not available. Up to a few months ago, he did not feel like working. He and a previous girl friend had been managing an apartment complex. The appellant found it too demanding and his girl friend started to use drugs, so he terminated his employment. The appellant stated that he did a lot of walking. He played cards with friends once in a while. He did a little yard work on the side. He cleaned house, cooked for himself, and watched a fair amount of television. He had been looking into getting a job managing a card room earning $9.00 an hour. He did not feel that this job would be too stressful. The appellant stated that currently he was not in any psychiatric treatment or on any medication. He had a couple of drinks about once a week, but never to the point of getting drunk. He was not using any drugs. The veteran stated that his mood was "perfectly satisfied". He usually got about four to six hours of sleep a night. He could go a couple of nights in a row getting only 2 hours of sleep. He spent his time staying up late watching television. The appellant stated that he felt he was probably not sleeping well because he was so used to being with someone and had been with someone intermittently for the last twenty years. He now felt quite lonely. He felt he had adequate energy, good concentration, and some decrease in appetite though he was not losing weight. The appellant was able to enjoy himself. He had a girl friend currently with whom he went bowling and occasionally to a movie. He had no suicidal thoughts. The veteran noted that he had a bipolar disorder and that his symptomatology had fluctuated since leaving service. Most of the time he was in a depressed mood. The depressions could last for weeks, but could be quite mild and persistent. During a depressive episode he slept both during the day and at night and had an increased appetite. He did not want to do anything or be around anyone. He often headed to the woods for solitude. Occasionally during this time he had suicidal thoughts. He did not drink more or use drugs during these episodes. During a manic episode, he did not eat and stated that he would run around. He indicated that his brain seemed to function faster than normal. He often saw things that were not there during these episodes. He saw images of monsters or heard voices of people from the past. He did not recall content of the hallucinations. In his early manic episodes, he felt he could invent things and make a lot of money. He would need very little sleep and might sit up all night in a restaurant talking to people. On mental status examination the appellant was soft spoken. He was not quite sure as to how to respond to questioning, but endeavored to provide what he thought was wanted in the interview. He was a little confused as to why he was doing so well, but at the same time did not know why he did not have more motivation to do more with his life. The veteran stated that he always had low self-esteem and couldn't get the motivation to put his life back together. At the same time he was not having significant highs or lows and felt more stable psychologically. He felt good that he had been able to keep himself out of the hospital for a couple of years. Thought processes were well organized and there were no delusions. There were no thoughts of self-harm or harm to others. There were no hallucinations. Cognition was grossly intact to attention, concentration and memory. The examiner noted that in terms of functioning, it appeared the veteran felt he was doing substantially better than he had done in the past. That is, he was not overwhelmed with depression or anxiety symptoms. However, he was very hesitant about getting into the work place. He felt that this may overwhelm him. The veteran was also keeping to himself quite a bit. He kept his behavior under control and his stress down to a minimum. The examiner felt that the claimant had a pretty clearly defined bipolar disorder. Currently, he did not appear to be significantly depressed or to have significant manic symptoms. He did not appear to be acting out. Although he drank once a week, he did not appear to be excessively abusing alcohol. He was not in tumultuous relationships. He was keeping to himself and looking for work. This might be his way of minimizing stress in his life by isolation. The examiner further noted that although the veteran might have a personality disorder, it was difficult to document one at this time with the rapidly fluctuating depressive and manic symptoms, and because currently he had no symptoms of mania or major depression and was not showing severe maladaptive traits. It appeared that he kept the stress in his life to an absolute minimum, socially impairing him mildly as he was able to develop some friendships and even have a girlfriend. It remained to be seen whether or not he would be able to keep a job as he was very gingerly working towards employment. The diagnosis was bipolar disorder. A 50 percent evaluation requires that the ability to establish or maintain effective or favorable relationships with people be considerably impaired and that reliability, flexibility, and efficiency levels be so reduced by reason of psychoneurotic symptoms as to result in considerable industrial impairment. A 70 percent evaluation requires that the above described psychoneurotic symptoms be productive of severe social and industrial impairment. 38 C.F.R. § 4.132, Diagnostic Code 9206. The Board's evaluation of the evidence of record does not permit the conclusion that the appellant's bipolar disorder has increased in severity, thereby warranting a grant of an increased evaluation. Of particular importance in this case is the fact that the veteran is well aware of his improved psychiatric status, and that this has been acknowledged by a VA examiner on the occasion of the most recent examination. The veteran's social inadaptability was acknowledged to be only mild in nature. He has plans for employment although he has been hesitant in this regard. Moreover, he has acknowledged that he could handle the stress of operating a card playing establishment. The appellant is not receiving any treatment or medication for his bipolar disorder. Symptomatology associated with this disorder appears to be minimal at this time. A few years have passed since a need for inpatient care. The veteran is keeping the stresses in his life to a minimum. He has denied all major significant symptoms. In view of the foregoing discussion, the Board finds it unreasonable to conclude that bipolar disorder has increased in severity. Severe impairment of social and industrial adaptability has not been shown by the evidence of record. No question has been presented as to which of two or more evaluations would more properly classify the severity of bipolar disorder. 38 C.F.R. § 4.7. Bipolar disorder has not rendered the veteran's disability picture unusual or exceptional in nature. It has not been shown to markedly interfere with employment. It has not required frequent inpatient care as to render impractical the application of regular schedular standards, thereby precluding the assignment of an increased evaluation on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). The Board finds that the evidence of record does not support a grant of an increased evaluation for bipolar disorder. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.132, Diagnostic Code 9206. ORDER Entitlement to a temporary total evaluation based on hospitalization from May 5, to May 31, 1988, is granted subject to applicable criteria governing the payment of monetary benefits. Entitlement to a temporary total evaluation based on hospitalization from December 7, 1988, to January 6, 1989, is granted, subject to applicable criteria governing the payment of monetary benefits. Entitlement to an increased evaluation for bipolar disorder is denied. ALBERT D. TUTERA 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.