Citation Nr: 0004407 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 95-12 831A ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont THE ISSUE Entitlement to an increased rating for a bipolar disorder, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Miyake, Associate Counsel INTRODUCTION The veteran served on active duty from March 1973 to April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1993 rating decision by the Boston, Massachusetts RO that denied a claim of entitlement to an increased rating for a bipolar disorder in excess of 50 percent. In August 1998, it was noted that the veteran was a resident of Vermont and jurisdiction of her claims file was transferred to the White River Junction, Vermont RO. FINDING OF FACT The veteran's bipolar disorder is manifested by severe occupational and social impairment; however, she does not experience active psychotic manifestations of such an extent as to produce total social and industrial inadaptability. CONCLUSION OF LAW A 70 percent rating for a service-connected bipolar disorder is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9206 (1996); 38 C.F.R. § 4.130, Diagnostic Code 9432 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board notes that disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (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). The schedular criteria by which psychiatric disabilities are rated changed after the veteran filed her claim. (The new criteria have been in effect since November 7, 1996.) See 61 Fed. Reg. 52695-52702 (Oct. 8, 1996) (effective Nov. 7, 1996). Therefore, adjudication of a claim for a higher rating must now include consideration of both the old and the new criteria. Karnas v. Derwinski, 1 Vet. App. 308 (1991). This rule of adjudication requires that the criteria most favorable to the veteran's claim be used to assign a rating. Id. (The Board notes that the veteran was advised of the new criteria in a December 1998 supplemental statement of the case.) The veteran's service-connected bipolar disorder is currently evaluated as 50 percent disabling. Under the new schedular criteria, a 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9432 (1999). A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. The criteria in effect prior to those listed above provide for a 100 percent rating when active psychotic manifestations are of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial adaptability. 38 C.F.R. § 4.132, Diagnostic Code 9206 (1996). A 70 percent rating is warranted with lesser symptomatology such as to produce severe impairment of social and industrial adaptability. Id. A 50 percent rating is warranted when there is considerable impairment of social and industrial adaptability. Id. Since the Board must consider whether the veteran would qualify for a higher evaluation under either set of criteria, Karnas, supra, consideration under the old criteria will be undertaken first. Based on a review of the evidence of record, the Board finds that the veteran's symptoms warrant a 70 percent rating under the old rating criteria. The medical evidence shows that, in August 1993, the veteran was hospitalized for suicidal ideations. It was noted that this was the first psychiatric hospitalization for the veteran. She had complained of being in a depressed mood, having disruptive sleep, and exhausted energy for the previous three weeks. Correspondence from a VA psychologist, dated in February 1995, indicates that the veteran had been treated by that psychologist and a physician, beginning in December 1994, for an exacerbation of symptoms related to a bipolar disorder. The psychologist indicated that this exacerbation of symptoms resulted in disruption of occupational functioning resulting in job loss and withdrawal from social and educational activities. It was noted that the veteran had since returned to work, but continued to have difficulty participating in other activities. In a written statement, received in October 1998, the veteran indicated that increased psychiatric symptoms had affected her job performance as a nurse. She attached a September 1998 performance conference report from her supervisor at a nursing home, indicating that the veteran had an inability to carry out her job responsibilities as a Team Leader. At a September 1998 VA examination, the veteran reported that she had not been hospitalized in the previous year and was receiving VA outpatient psychiatric treatment. Her medications included Lithium and Paxil. She reported that she lived with her husband. She noted this was her sixth marriage and that there was significant marital discord. She also noted that she had trouble with her social relationships. She reported that she had worked full time at a local nursing home until March 1998, when she was forced to work only two days a week due to her depression. She had been employed at this job for the previous 8 months. Previously, she had worked at another nursing home for one year. She noted that she had had a new job every year since 1983, but that prior to that time, she had been more successful in her work environment, having held jobs for 8 to 10 years. She complained of going into a depression like never before and that she had been on Wellbutrin, but that it had not worked. She also did not know if her then-current medication of Paxil was working. The veteran also reported, during the September 1998 VA examination, a one-year history of worsening depression that included problems with decreased sleep, decreased energy, a depressed and irritable mood, diminished concentration, feelings of helplessness and worthlessness, and decreased interest in activities. Examination revealed that the veteran was alert, and oriented to person, place, and time. There was no evidence of impairment in thought processes or communication. She denied hallucinations. There was no evidence of delusions. She did not describe inappropriate behavior, except some self-destructive behavior and manic frustration. She reported suicidal and homicidal thoughts, frequent intrusive thoughts of harming herself, including driving her car off the road, but denied intent. She reported the ability to maintain minimal personal hygiene and perform other activities of daily living. She had had difficulty with some activities of daily living, including going to work and maintaining her usual level of grooming, which would include make up and more professional dress. She reported short-term memory loss associated with diminished concentration. She reported obsessive racing thoughts but denied obsessive or ritualistic behavior. There was no evidence of panic attacks. Her speech was clear and goal oriented. She reported a depressed mood with some anxiety, impaired impulse control, and significant ongoing sleep impairment. A Global Assessment of Functioning (GAF) score of 45 was assigned. Bipolar affective disorder, depressed phase was diagnosed. The examiner's assessment was that the veteran had a long history of bipolar illness with both depressed and manic episodes. It was felt that the veteran was suffering from a prolonged depressive episode associated with this illness. She also had some post-traumatic stress disorder (PTSD) symptoms, many of which overlapped with the symptoms of depression from her bipolar affective disorder. The examiner noted that, while it was impossible to know truly the etiology, it was the examiner's firm opinion that the veteran did not suffer from full-blown PTSD. The examiner opined that the veteran's symptoms of irritability, diminished concentration, decreased interest in activities, feelings of hopelessness, and suicidal ideation were all associated with an episodic illness from which the veteran recovers when treated for bipolar affective disorder. The examiner further opined that the veteran had had some ongoing intrusive experiences in the form of nightmares, and that the veteran's social relationships were significantly affected by both her bipolar illness and her history of trauma. The examiner opined that this impairment was significant in that the veteran had had six marriages and that her sixth marriage was experiencing some difficulties. The examiner further opined that the veteran had had significant impairment in the workplace resulting in an inability to perform her work at her usual level. The GAF score was based on the veteran's overall functioning which was impacted most significantly and was a clear representation of the impairment caused by the veteran's bipolar affective disorder. It was noted that a GAF score of 45 represented major impairment in multiple areas of life functioning. VA outpatient progress reports, dated from December 1998 to October 1999, show that the veteran received treatment for her bipolar disorder. In December 1998, she discussed her struggles with her husband, and reported that she had been fired in the past 11 months from a nursing home due to poor work performance. In January 1999, it was noted that she had arrived late due to working. In August 1999, she reported working part-time as a nurse on the night shift, and discussed blowing up at her husband. In September 1999, the veteran arrived for treatment with her five-week old grandson, whom she had agreed to raise. In October 1999, it was noted that, while she was loving towards her grandson, she was talkative and angry when discussing her husband. The recent medical evidence shows that the veteran continues to experience ongoing intrusive experiences in the form of nightmares, and depressive symptoms associated with her bipolar disorder. The veteran's depressive symptoms included a depressed and irritable mood, diminished concentration, decreased sleep, decreased energy, feelings of helplessness and worthlessness, and decreased interest in activities. She denied having hallucinations and there was no evidence of delusions. She did not describe inappropriate behavior, except some self-destructive behavior and manic frustration. Although she had had thoughts of suicidal ideation and homicidal ideation, she did not have intent. While she also reported obsessive racing thoughts, she was not engaged in any obsessive or ritualistic behavior that interfered with her routine activities. Her social relationships were significantly affected. It was noted, however, that the veteran had maintained some relationships with her family, including her husband and grandson, even if she had had angry outbursts at her husband. It was noted in December 1994 that an exacerbation of bipolar disorder symptoms resulted in disruption of occupational functioning resulting in job loss and withdrawal from social and educational activities. It was further noted in February 1995 that, despite the veteran having returned to work, she continued to have difficulty participating in other activities. In September 1998, a job performance report indicates that the veteran had an inability to carry out her responsibilities as a nurse. In addition, a September 1998 VA examiner opined that the veteran had had significant impairment in the workplace resulting in an inability to perform her work at her usual level. With consideration of the most recent medical evidence that reflects increased symptomatology, the Board concludes that the evidence supports a 70 percent rating on account of severe impairment in social and industrial adaptability. Accordingly, a 70 percent rating under the old diagnostic criteria is warranted. This is particularly so given the increase in symptoms as noted in recent reports. As to whether the veteran's service-connected bipolar disorder rises to the level of 100 percent disabling under the old criteria, the Board finds that it does not. The medical evidence does not currently show manifestations of her disability to such an extent as to produce total social and industrial inadaptability. In fact, it was noted, as recently as August 1999, that the veteran was working on a part-time basis as a nurse. Furthermore, she has maintained some relationships with her family including her husband and grandson. Even the September 1998 VA examiner characterized her impairment as significant or major, rather than totally disabling. As for whether the veteran might qualify for a 100 percent rating under the new criteria, the Board notes that the veteran does not experience bipolar disorder symptoms to the level required for such a rating. The evidence reflects that, although the veteran reported short-term memory loss, there was no indication that she has had problems with names of close relatives, her own occupation, or her own name. Also, there has been no indication that she is disoriented, or that there is a persistent danger of the veteran hurting herself or others. Despite her symptoms, she remained able to perform her work to a certain level and handle the responsibilities associated with raising her grandson. Although she has had difficulties in dealing with others, including angry outbursts at her husband, it has not been shown to rise to a level of a persistent danger as evidenced by the fact that she has remained able to work as a nurse and appears loving towards her grandson. Additionally, although her overall functioning was significantly impaired, she does not have problems to the degree required to award a total rating. She has difficulties with certain activities of daily living, but her problems are not persistent, and she has been able to maintain minimal personal hygiene. Although her symptoms result in severe impairment, her problems do not result in the degree of impairment contemplated by the 100 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9411 (1999). Consequently, the Board finds that no more than a 70 percent rating is warranted under either the old or new criteria. ORDER A 70 percent rating for a bipolar disorder is granted, subject to the laws and regulations governing the award of monetary benefits. MARK F. HALSEY Member, Board of Veterans' Appeals