BVA9503596 DOCKET NO. 91-54 614 ) DATE ) RECONSIDERATION ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. H. Wetmore, Counsel INTRODUCTION The veteran served on active duty from April 1943 to December 1945 and was held as a prisoner of war of the German Government from November 1944 to April 1945. The Board of Veterans' Appeals (Board) denied the veteran's claim for a total rating based on individual unemployability due to service-connected disabilities in an August 1991 decision. Reconsideration of that decision was ordered in July 1992 by the Chairman of the Board under the authority of 38 U.S.C.A. § 7103(b) (West 1991). The case is before an expanded reconsideration panel of the Board and the decision of that panel will replace the August 1991 decision as the final decision of the Board. Upon review following docketing for reconsideration, the Board remanded the case to the RO for further development in October 1992. In the remand, the RO was directed to consider all of the veteran's service connected disabilities in developing the matter for reconsideration; however, the Board will limit its review to the issue of entitlement to a total rating based on individual unemployability due to service-connected disabilities. Within that framework, the issue of an increased rating for the service- connected bipolar disorder will be addressed. When the Board considered the claim in August 1991, the veteran had testified in December 1990 before a traveling section of the Board sitting at the RO. The tape recording of that testimony is not transcribable and there is no copy extant which would allow for transcription. The veteran was advised of this situation by telephone in September 1994 and provided written confirmation in October 1994 that he does not want another hearing. The veteran's representative, in an October 1993 brief on appeal, submitted a claim for service connection on behalf of the veteran for arthritis, pointing out that the veteran was a prisoner of war. This issue has not been developed for appellate consideration and the Board refers it to the RO. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is unable to work due to his service-connected disabilities. He points out that he was found unemployable by the Social Security Administration. 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 preponderance of the evidence supports the assignment of an increased rating of 70 percent for bipolar disorder and a total rating based on individual unemployability due to service-connected disabilities. FINDINGS OF FACT 1. The veteran's bipolar disorder probably is productive of severe impairment of social and industrial adaptability. 2. The veteran is unemployable due to his service-connected disabilities. CONCLUSIONS OF LAW 1. A 70 percent evaluation for the service-connected bipolar disorder is warranted. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 4.7, 4.132, Diagnostic Code 9206 (1993). 2. A total rating based on individual unemployability due to service-connected disabilities is warranted. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds the veteran's claim to be well grounded within the meaning of 38 U.S.C.A. § 5107 because it is plausible. See Murphy v. Derwinski, 1 Vet.App. 78 (1991). The Board is also satisfied that all relevant facts have been properly developed and there is no further assistance required in order to comply with § 5107. See Littke v. Derwinski, 1 Vet.App. 90 (1990). I. Bipolar Disorder As explained hereinabove, the Board will specifically address the question of an increased rating for the veteran's service- connected bipolar disorder. The veteran is service connected for bipolar disorder, which is evaluated under the provisions of 38 C.F.R. § 4.132, Diagnostic Code 9206. These provisions provide for a 100 percent evaluation when there are active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. A 70 percent evaluation is provided when there is lesser symptomatology such as to produce severe impairment of social and industrial adaptability. When there is considerable impairment of social and industrial adaptability, a 50 percent evaluation may be assigned. The veteran is currently in receipt of a 30 percent evaluation, which contemplates definite impairment of social and industrial adaptability. In Hood v. Brown, 4 Vet.App. 301 (1993), the United States Court of Veterans Appeals (Court) stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other terms were "quantitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate "reasons or bases" for its decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a precedent opinion, dated November 9, 1993, the General Counsel of VA concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." O.G.C. Prec. 9-93 (Nov. 9, 1993). The Board is bound by this interpretation of the term "definite." 38 U.S.C. § 7104(c). With these considerations in mind, the Board will address the merits of the claim at issue. At a VA examination in October 1989 due to the veteran's prisoner-of-war status, it was noted that the examiner ran out of time in attempting to complete a mental status examination because the veteran was loquacious and circumstantial and had pressured speech. There was no evidence of a thinking disorder at that time. The final review of this examination, in November 1989, included a diagnosis of severe bipolar disorder with severe effects on social and industrial function. A VA doctor reported in November 1991 that he had seen the veteran for 30 minutes and found him very circumstantial, resulting in there being many areas that needed to be covered in order to complete an examination. E. H. Slagle, M.D., reported in a November 1991 statement that he had been treating the veteran since 1978. He felt that although the mood swings from manias to psychotic depressions had been reduced due to Lithium and psychotherapy, the veteran's mental status had deteriorated. He had become so paralyzed due to circumstantial thinking that he could not function at a job and he had become socially and emotionally impaired. He was deemed unable to currently hold a job due to his bipolar disorder with marked circumstantiality. Pursuant to the Board's request, the veteran underwent a VA psychiatric examination in December 1992. After reviewing his medical history and complaints, the examiner found him to be alert and oriented. He was appropriately dressed, neatly groomed, cooperative, friendly, very circumstantial and slightly flighty. He was able to carry on a logical conversation. He was slightly grandiose, guarded, paranoid with paranoid ideations, and occasionally sarcastic. His affect was euphoric, almost hypomanic at times. His mood was expansive and happy. He denied hallucinations and suicidal or homicidal ideations. His memory was good and his concentration was poor to fair. He needed to be redirected a lot at times and his insight and judgment were fair to good. The diagnoses included mixed bipolar disorder. At a VA social and industrial survey in March 1993, the veteran provided a detailed account of his medical, social and industrial history. He said he was a high school graduate who had studied Mechanical Engineering for two years. He was said to have not been significantly employed since 1976 and to have been awarded Social Security disability payments since 1978. He was found to be unemployable due to marked circumstantiality and inability to concentrate. The file also reflects a July 1993 letter of discharge from the veteran's employer. It details difficulties attributed to his "[c]ircumstantial [r]easoning" which resulted in the determination to dismiss him. In analyzing the evidence with respect to the evaluation assigned for the veteran's bipolar disorder, the Board finds that a 70 percent evaluation probably reflects the degree of impairment shown. That is, severe impairment is manifested by his circumstantiality, tangentiality and difficulties with memory and concentration. When examined by VA in 1989, severe incapacity was noted. Subsequent examinations, in the Board's opinion, do not provide a basis for finding improvement in his condition. Under these circumstances, the Board concludes that an evaluation of 70 percent for bipolar disorder is in order. II. A Total Rating Based on Individual Unemployability Due to Service Connected Disabilities 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 Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Thus, the Board must consider all of the veteran's service-connected disabilities in assessing whether a total rating under these provisions is warranted. In addition to the bipolar disorder, the veteran is service connected for peripheral neuropathy of all four extremities. Disability attributable to peripheral neuropathy is ordinarily to be rated in proportion to motor and sensory function. Special attention is paid to disturbances of gait, tremors, the site and character of the injury, the relative impairment in motor function, trophic changes, sensory disturbances, etc. 38 C.F.R. § 4.120. A review of the record in light of this provision shows that the positive findings consist of those showing primarily impairment of sensory function of his extremities, due to his megaloblastic anemia. There are no significant motor deficits, tremors, etc. For example, a VA examiner in December 1988 commented that only sensory involvement was shown. The subsequent findings entered in the record by VA and private physicians do not show any additional degree of disability. At the October 1989 VA examination, sensation changes in the lower legs were present and intermittent paresthesias of the lateral aspect of the thighs and the hands. The findings during the December 1992 VA examination were comparatively remarkable because there was no loss of proprioception or loss of vibration sense in the upper extremities. J. J. Campolito, M.D., reported in June 1993 that he was treating the veteran due to an inability to absorb vitamin B12 orally. The December 1992 VA examination also included a diagnosis of megaloblastic anemia secondary to vitamin B-12 deficiency. Service connection has been established for megaloblastic anemia, evaluated as noncompensable. The veteran is receiving vitamin B-12 and that appears to have controlled his anemia. Since no specific symptoms other than peripheral neuropathy, discussed above, are shown, the Board concludes that this disability has a negligible effect upon the veteran's employability. Turning directly to the issue of a total rating, on reconsideration of the record, the Board is of the opinion that the veteran's service-connected disorders render him unemployable. His bipolar disorder is productive of severe impairment and, in combination with peripheral neuropathy of all four extremities, the Board is satisfied that the veteran is unable to work without considering his non-service-connected disabilities. The Board notes his training and educational background (set forth above). In that regard, it is significant that his dismissal from a position as a consultant in a plumbing firm has been documented in a July 1993 letter from his employer. This was a position that he should have been able to hold with ease given his many years of experience in this field. The Board finds this to be an extremely probative piece of evidence with respect to this matter. The Board concludes that the current record establishes that this benefit is warranted. ORDER A 70 percent evaluation for bipolar disorder and a total rating based on individual unemployability due to service-connected disabilities are granted, subject to the law governing the payment of disability compensation. BARBARA B. COPELAND J. J. SCHULE Member, Board of Veterans' Appeals Member, Board of Veterans' Appeals STEPHEN L. WILKINS Member, Board of Veterans' Appeals F. JUDGE FLOWERS BETTINA S. CALLAWAY Member, Board of Veterans' Appeals Member, Board of Veterans' Appeals JACK W. BLASINGAME Member, Board of Veterans' Appeals 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.