Citation Nr: 1008621 Decision Date: 03/08/10 Archive Date: 03/17/10 DOCKET NO. 05-00 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 50 percent for the service-connected bipolar disorder for the period dated from September 8, 1991 to January 8, 1993. 2. Entitlement to a rating in excess of 30 percent for the service-connected bipolar disorder for the period dated from January 8, 1993 to April 16, 2001. 3. Entitlement to an effective date prior to April 16, 2001 for the assignment of a 100 percent rating for the service- connected bipolar disorder. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from May 1972 to April 1977. This appeal comes before the Board of Veterans' Appeals (Board) from a January 1993 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied a compensable rating for service-connected anxiety neurosis. In January 1994, the RO granted an increased rating of 10 percent for anxiety neurosis. In a May 1995 supplemental statement of the case, the RO determined that the service- connected anxiety neurosis and a separately service-connected narcolepsy had progressed into a single disorder, diagnosed as bipolar disorder. The RO granted an increased rating of 30 percent for the service-connected bipolar disorder, effective September 8, 1992, the date of receipt of the claim from which this appeal arises. In April 2003, the RO granted an increased rating of 50 percent for bipolar disorder, effective April 16, 2001. In April 2004, the RO granted an increased rating of 100 percent for the service-connected bipolar disorder, effective April 16, 2001. The Veteran disagreed with the effective date assigned for the 100 percent rating. In November 1996 and in March 2000, the Board remanded the claim for further development. In January 2005, the Veteran requested to appear for a personal hearing before a Veterans Law Judge Board sitting at the RO; but, he withdrew the request in writing in April 2007. In a May 2008 decision, the Board found that an effective date prior to April 16, 2001 for the assignment of a 100 percent rating for the service-connected bipolar disorder was not warranted. With regard to the increased rating issued, however, the Board determined that an increased rating to 50 percent was warranted for the service-connected bipolar disorder from September 8, 1991 to January 8, 1993, but a rating in excess of 30 percent was not warranted for the service-connected bipolar disorder from January 8, 1993 until April 16, 2001. The Veteran appealed the Board's May 2008 decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). While his claims were pending at the Court, the Veteran's representative and the VA Office of General Counsel filed a Joint Motion requesting that the Court vacate and remand back to the Board that portion of the Board's May 2008 decision that (1) denied a rating in excess of 50 percent for the service-connected bipolar disorder from September 8, 1991 to January 8, 1993; (2) denied a rating in excess of 30 percent for the service-connected bipolar disorder from January 8, 1993 to April 16, 2001; and (3) denied an effective date prior to April 16, 2001 for the assignment of a 100 percent rating for the service-connected bipolar disorder. In an April 2009 Order, the Court granted the Joint Motion and the case was returned to the Board for additional development and readjudication pursuant to the Court Order. The increase to 70 percent for the service-connected bipolar disorder from September 8, 1991 to April 16, 2001 raises an inferred claim for a total rating for individual unemployability due to service-connected disability (TDIU). A TDIU claim is reasonably raised when a claimant whose schedular rating meets the minimum criteria under 38 C.F.R. § 4.16(a) requests entitlement to an increased rating and there is evidence of current service-connected unemployability in the claimant's claims file or in records under VA control. See Norris v. West, 12 Vet. App. 413, 421 (1999); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). This matter is referred to the RO for the appropriate consideration. FINDINGS OF FACT 1. The Veteran's service-connected anxiety neurosis progressed to a current diagnosis of bipolar disorder. 2. The Veteran's claim for a compensable rating for then- diagnosed anxiety neurosis was received on September 8, 1992. 3. During the time period from September 8, 1991, one year prior to the date of claim, until April 16, 2001, the Veteran's service-connected bipolar disorder was manifested by Global Assessment of Functioning (GAF) scores ranging from 30-45 with periods of fluctuating symptomatology that included, at times, hospitalizations, hallucinations, memory loss, limited judgment and insight. During this same period, the Veteran consistently had difficulty in adapting to stressful circumstances and demonstrated an inability to maintain effective relationships. His overall disability picture during the appeal period prior to April 16, 2001 more nearly approximates that of severe impairment of social and industrial adaptability. 4. At no time prior to April 16, 2001 did the evidence demonstrate symptoms of bipolar disorder of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. 5. Between November 1996 and April 16, 2001, the service- connected bipolar disorder did not more nearly approximate that of 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; or memory loss for names of close relatives, own occupation, or own name. 6. The criteria for the assignment of a 100 percent rating for bipolar disorder were not factually ascertainable within one year of the date of the September 1992 claim for increase and entitlement to a 100 percent rating for the service- connected bipolar disorder did not arise until April 16, 2001. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran's favor, the criteria for the assignment of a 70 percent rating, but no higher, for the service-connected bipolar disorder have been met from September 8, 1991 to April 16, 2001. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.132, Diagnostic Codes 9205, 9206, 9207 (1992); 4.130, Diagnostic Codes 9211, 9432, 9433 (2009). 2. The criteria for an effective date prior to April 16, 2001 for the assignment of a 100 percent rating for the service-connected bipolar disorder have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In the present case, the initial decision that is the basis of this appeal was already decided and appealed prior to the enactment of the current section 5103(a) requirements in 2000. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial decision, the RO did not err in not providing such notice. Rather, the appellant has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. Here, the RO provided duty-to-assist correspondence in August 2003. Any notice errors in the August 2003 letter did not affect the essential fairness of the adjudication. While the RO referred to an incorrect mental illness in the notice, the Veteran was not confused by this as he continued to refer to his bipolar disorder in subsequent correspondence of August 2004 and January 2005. Furthermore, the Veteran provided specific testimony and referred to other documents of record related to the effect of his bipolar disorder on his occupational and daily life. Thus the deficient notice did not affect the essential fairness of the adjudication because the Veteran demonstrated actual knowledge of the requirements and based on the various notices provided to him, which included the statement of the case and the supplemental statements of the case, was reasonably expected to understand what was needed in his case. In addition, VA has obtained all relevant, identified, and available evidence and has notified the appellant of any evidence that could not be obtained. VA has also obtained several medical examinations. The Board remanded the case in March 2000 for the RO to obtain additional private medical records and additional medical information or an examination. The Veteran responded and completed an authorization form for another medical facility. In addition, the Veteran was scheduled for two examinations but did not report for those examinations. A VA examination was eventually conducted in December 2003. In the March 2000 remand, the Board requested that a psychiatrist review the entire medical record and assign a Global Assessment of Functioning (GAF) score indicating the level of impairment produced by the psychiatric disability since 1993. The GAF score is a numerical scale for reporting a clinicians judgment of an individuals overall level of functioning and is a component of the multiaxial assessment process set forth in the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). Nomenclature employed in VA diagnostic codes is based on DSM-IV but does not include citations to the GAF score. Rather, ratings are based on a narrative description of symptomatology indicative of varying levels of social and occupational impairment. 38 C.F.R. § 4.130. The Veteran's Health Administration (VHA) acknowledged that VA examiners often recorded the score since 1991, but did not direct that it be recorded as part of a mental health examination until the start of fiscal year 1998. VHA Directive 97-059 (November 25, 1997). In this case, a VA examiner in December 2003 provided a GAF score associated with the Veteran's examination and noted that he reviewed all earlier reports but did not assign a score to earlier examinations performed by other clinicians since 1993 as requested. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Nevertheless, the failure of the post-remand examiner to assign GAF scores to earlier examinations was not prejudicial to the Veteran. The examiner substantially complied with the remand instructions by reviewing all previous examinations since 1976 and summarizing the history of the Veteran's disorder, treatment, and the impact of the disorder on his level of social and occupational functioning over this period of time. In an April 2004 rating decision, the RO considered the GAF scores that were included in examinations in 2002 and 2003. For any earlier examinations that did not include a GAF score, the reports contained sufficient narrative comments to provide an adequate clinical assessment of the Veteran's then-current symptomatology and to assess the impairment of function necessary to apply the criteria of the applicable diagnostic codes. These reports will be discussed at length below. An additional remand solely to obtain GAF scores assigned by a contemporary examiner to the observations of an earlier examiners would add no additional probative value, would not alter the substantive narrative description already of record, and would only further delay the award of increased benefits provided by this decision. The Veteran contends that his bipolar disorder warranted a 100 percent evaluation since the date of a claim in 1988. Generally, the effective date for an increased rating is the date of receipt of the claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). If, however, the claim is filed within one year of the date that the evidence shows that an increase in disability has occurred, the effective date is the earliest date as of which an increase is factually ascertainable (not necessarily the date of receipt of the evidence). 38 C.F.R. § 3.400(o)(2). See also Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). The Veteran contends that he submitted a claim for a compensable rating for anxiety neurosis in 1988. A claim was received by the RO in May 1988; however, the RO denied the claim for a compensable rating for anxiety neurosis in September 1988 and informed the Veteran in correspondence in October 1988. The Veteran did not express disagreement with that determination within one year and the decision became final. 38 U.S.C.A. § 7105 (West 2002). The current claim on appeal for a compensable rating for anxiety neurosis was received by the RO on September 8, 1992. In May 1995, the RO granted an increased rating of 30 percent, effective the date of claim. The Veteran expressed timely disagreement with the decision in February 1992 and perfected a timely substantive appeal in March 1993. Therefore, as part of the analysis, the Board must determine whether evidence showed an increased disability one year prior to that date or later. In March 1977, a military physician diagnosed the Veteran with severe anxiety neurosis and syndrome of narcolepsy manifested by sleep paralysis, hypogogic hallucinations, and possible cataplexy. A Physical Evaluation Board found the Veteran unfit for further service, and he was transferred to the temporary disability retired list, effective April 15, 1977. In July 1977, the RO granted service connection for anxiety neurosis and narcolepsy, effective the same date. Private hospital records from 1977 to 1988 showed that the Veteran received inpatient treatment on several occasions for symptoms of substance abuse, anxiety, depression, auditory hallucinations, and insomnia with a history of several suicide attempts. In October 1985, the private attending physician diagnosed major depression and alcohol abuse. In June 1988, a private attending physician diagnosed dysthymic disorder and alcohol abuse. In August 1988 after one month of inpatient treatment at a VA hospital, the attending physician reviewed the Veteran's history of treatment to date and diagnosed bipolar disorder and polysubstance dependence. In subsequent private and VA medical records, which will be discussed in more detail below, medical providers narrowed their diagnoses of the Veteran's mental health symptoms to a single psychotic or mood disorder, variously termed bipolar, depressive, manic, or schizoaffective disorders, combined with polysubstance abuse. Anxiety neurosis was mentioned in history and anxiety was noted as a symptom of bipolar disorder, but anxiety neurosis no longer appeared as a diagnosis after 1977. If the diagnosis of a mental disorder is changed, rating adjudicators must determine whether the new diagnosis is a progression of the prior diagnosis, correction of an error in diagnosis, or the development of a new and separate condition. 38 C.F.R. § 4.128 (1992); 38 C.F.R. § 4.125 (2009). Here, after review of the entire medical history, the weight of medical evidence showed that the Veteran's service-connected anxiety neurosis was found to have progressed to a single psychotic or mood disorder. Therefore, the rating criteria for psychotic or mood disorders such as bipolar, depressive, manic, or schizoaffective disorders are for application to determine when an increase in disability occurred. Additionally, based on a review of the record of notices of disagreement, substantive appeals, Veteran's statements in support of his claim, and previous Board remands, that the Veteran's appeal is for consideration of an increased rating for bipolar disorder greater than the staged ratings currently in effect since the receipt of his claim in September 1992 or up to one year earlier if factually ascertainable. The Veteran's most recent expressions of disagreement in August 2004 and January 2005 indicate his desire for a 100 percent rating for the entire period because of social and industrial impairment as shown in part by a total disability award from the Social Security Administration. Therefore, as he was awarded a 100 percent rating effective April 16, 2001, an issue on appeal is for an earlier effective date for a 100 percent rating. However, in a statement in support of his claim in September 1992, substantive appeal in March 1993, and statements in April and June 1994, the Veteran reported that the symptoms of his service-connected mental disorder had become more severe and that he sought a higher evaluation. In 1996 and 2000, the Board characterized the issue as a claim for an increased evaluation greater than 30 percent. As the Veteran has perfected an appeal of a decision on his claim received in September 1992, the Board must also evaluate whether an increased rating of less than 100 percent is warranted during the pendency of the appeal. Ratings for service-connected disabilities are determined by comparing the symptoms the veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities, which is based as far as practical on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Also, when making determinations as to the appropriate rating to be assigned, VA must take into account the veteran's entire medical history and circumstances. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating criteria for mental disorders changed effective November 7, 1996. See 61 Fed. Reg. 52695 (Oct 8, 1996). Where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeals process has been concluded, the version of the law or regulation most favorable to the appellant generally applies. However, only the former criteria can be applied for the period prior to the effective date of the new criteria, but both the old and new criteria can be applied as of that date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); see also 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000 (Apr. 10, 2000). Under the old criteria, bipolar disorder, depression, and schizoaffective disorder were rated under a General Rating Formula for Psychotic Disorders. A 30 percent rating was warranted for definite impairment of social and industrial adaptability. A 50 percent rating was warranted for considerable impairment of social and industrial adaptability. A 70 percent rating was warranted for lesser symptomatology than for a 100 percent rating but such as to produce severe impairment of social and industrial adaptability. A 100 percent rating was warranted for active manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. 38 C.F.R. § 4.132, Diagnostic Codes 9205, 9206, 9207 (1992). After November 1996, psychotic and mood disorders are rated under the General Rating Formula for Mental Disorders. Under the newer criteria, a 30 percent rating contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Codes 9211, 9432, 9433 (2009). A 50 percent disability rating contemplates 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; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating contemplates 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 worklike setting); inability to establish and maintain effective relationships. Id. Finally, a 100 percent disability rating for psychiatric disabilities contemplates 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. Id. In July 1988, the Veteran was admitted to a VA medical center detoxification unit for treatment for symptoms of alcohol abuse. The attending physician noted the Veteran's reports of a post-service history of three civil offenses for intoxication and two failed marriages. The Veteran also reported that alcohol abuse had affected his work as an electrician. The physician also noted the Veteran's reports of pre-service drug abuse and post-service treatment at private facilities for severe anxiety, depression, auditory hallucinations, insomnia, narcolepsy, and several suicide attempts. The physician noted that the Veteran successfully completed his units' treatment program although the Veteran was hyperactive, argumentative, and anxious much of the time. The physician diagnosed bipolar disorder and polysubstance dependence and prescribed medication for depression, manic symptoms, and prevention of alcohol abuse. The Veteran received similar treatment at the same VA facility again in October 1989. In February 1991, the Veteran was hospitalized at a VA facility for symptoms of chest pain and alcohol abuse. No mental disorders were noted. In June and July 1991, the Veteran was treated at a private hospital and private outpatient clinic for alcohol intoxication and dependence. Physicians noted that the veteran was initially uncooperative, and agitated with hallucinations and delusions, confused speech, limited insight, poor judgment and some memory loss. They noted that another personal relationship had recently dissolved. At the end of treatment, an attending physician noted improvement in speech, memory, and thought process but that the Veteran remained mildly depressed and potentially suicidal but with no delusions or hallucinations. A hospital physician diagnosed alcohol dependence but no mental disorders. However, the physician continued the Veteran's anti- depressive medication. In January 1992, the Veteran was granted Social Security Administration disability benefits for mood or affective disorders and psychoactive substance dependence disorder. The onset of disability was established as April 1991. The SSA medical examiner referenced private and VA medical reports that are of record and were discussed above. The examiner also noted that the Veteran had a college degree in addition to skills as an electrician. In an associated questionnaire, the Veteran stated that he was able to perform the activities of daily living but that he had been homeless several times over the previous four years. He stated that he had tried to obtain employment on several occasions but was fired for unsafe work practices. He stated that he had difficulties with concentration and sleeplessness at night and that he often fell asleep during the day. In July 1992, a mental health examiner at the outpatient clinic noted that the Veteran experienced some delusions and hallucinations and displayed poor insight. He diagnosed mixed bipolar disorder with psychotic features, alcohol abuse, and schizotypal personality disorder. Also in July 1992, the Veteran was seen at the Oconee Center. He reported that he was depressed due to the break up of a two-year relationship. Mental status examination revealed a labile affect and that the Veteran was experiencing hallucinations. The current GAF was assessed at 30 ((behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas) and the GAF during the past year was 45 (serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)). Quick Reference to the Diagnostic Criteria from DSM-IV, 46-47 (1994). Shortly thereafter, from August 1992 to September 1992, the Veteran was hospitalized at a VA facility for symptoms of depression, auditory hallucinations, and temporary memory loss but without suicidal ideations. The attending physician noted that the Veteran's depression improved with group and individual treatment. The physician recommended outpatient therapy, continued the medications, and noted that the Veteran was employable. The diagnosis was moderate bipolar disorder. In January 1993, a VA mental health examiner noted the Veteran's reports of unemployment for the previous four years with periodic episodes of depression, anxiety, unwarranted suspicion, and auditory hallucinations but no suicidal ideations. The examiner noted that the Veteran was coherent and oriented with no memory deficits and fair insight and judgment. The Veteran was in a functional domestic relationship. The examiner diagnosed mixed manic depressive illness and alcohol dependence in remission. The VA examiner provided a substantially similar report in July 1993. Medical records from a private mental health clinic from July 1993 through October 1994 showed generally stable symptoms with periodic deterioration and improvement in depression and the intermittent occurrence of hallucinations, often resulting from changes in use of medication. The providers did not note any symptoms of alcohol abuse during this time. In a March 1994 notice of disagreement, the Veteran contended that a 100 percent rating was warranted because he had been provided a temporary military disability at 50 percent in 1977, a total and permanent rating by SSA in 1992, and that he had not obtained substantially gainful employment for an extended time. In an April 1994 substantive appeal, the Veteran stated that he had not been regularly employed since 1992 but did perform occasional contract work as an electrician. He stated that he had experienced alienation from his brothers, his children and two failed marriages as well as two other failed relationships. The Veteran's written statements were thoughtful and coherent. In a September 1994 RO hearing, the Veteran stated that he regularly experienced episodes of narcolepsy, cataplexy, and nocturnal paralysis. He stated that he was not employed and could not drive an automobile because of the sleep related symptoms but was able to perform housework. In October 1994, a VA physician conducted a general medical examination. He noted the Veteran's reports of abstention from alcohol since 1992 and remission of his manic symptoms for two years with the regular use of medication. He stated that there was no current evidence of cataplexy or narcolepsy and that the latter may have been misdiagnosed in the past. He further stated that there was no evidence of anxiety and that the manic depressive illness was in remission. However, the VA mental health examiner from 1993 also conducted an examination, noting that the Veteran had not been hospitalized for two years and had married. However, this examiner noted continued hyperactivity, nightmares, auditory delusions, and mood swings, and continued to diagnose manic depressive illness. In August 1995, the RO denied the Veteran's claim for a total disability rating based on individual unemployability (TDIU). In September 1996, the Veteran was treated at a private hospital for symptoms of gastric distress after having ingested excessive medication together with alcohol. The attending physician noted that the Veteran denied any suicidal intention, was doing well prior to the event, and intended to return to work the next day. In correspondence in April 1997, the Veteran reported that he had discontinued his employment because he had three workplace accidents that he attributed to his psychiatric symptoms. In September 1997, the Veteran's employer reported that the Veteran had been employed full time as an electrician from October 1995 to June 1997. No concessions for disability were necessary nor was any time from work lost due to disability. The employer indicated that the reason for termination of employment was that the Veteran desired to be self-employed. In December 1997, a VA social worker conducted a social and industrial capacity survey. The counselor noted that the Veteran was in the third year of marriage for the third time. He was estranged from his children of an earlier marriage but had some relationship with his wife's three children. However, his wife also suffered from mental illness, and the Veteran reported occasions when he left home to live with his mother or "in the woods." He reported that he had no friends or recreational activities and that he worked individual jobs on his own as an electrician except for a recent period with a contracting firm. The same month, a VA physician examined the Veteran and noted the Veteran's reports of no recent suicidal ideations or auditory hallucinations. However, he did report increasing irritability, sleep disturbance, unwarranted suspicion, hyperactivity, depression, and mood swings. The Veteran had no communication or thought process deficits, inappropriate behavior, neglect of hygiene, memory loss, panic attacks, impaired impulse control, or obsessive or ritualistic behavior. The physician noted that the Veteran could perform the civilities of daily living and manage his own affairs. The physician diagnosed mixed manic depressive illness, well controlled with medication and inactive alcohol dependence. In February 1999, the Veteran refused an additional VA examination. In October 1999, the Veteran stated that his efforts at self employment led to bankruptcy in 1998 and that he was about to lose his home. In November 1999, a VA physician at an outpatient mental health clinic noted that the Veteran had become very depressed over marital difficulties and a separation from his wife and had made cuts on both wrists and ankles. However, the physician noted on examination that the Veteran was not suicidal or overly manic or depressed, was trying to continue work as an electrician, and intended to resume living at home with his wife. In a January 2000 statement, the Veteran reported that he continued to be unable to obtain regular employment. In September 1999, the RO again denied a claim for TDIU. In April 2001, a VA physician at a Medical Center noted that the Veteran was admitted after experiencing a seizure. The Veteran reported being homeless, not taking his psychiatric medication, and on probation for charges of a criminal assault. He reported having lost all his possessions and medication upon separation from his wife in August 2000 and had subsequently been living in temporary quarters and engaging in improvident behaviors including alcohol abuse. The Veteran stated his desire to correct his medical and legal problems so that he could seek work as a master electrician in another state. He stated that he had published news articles and taught religious education in the past. The physician noted that the Veteran was tearful, depressed, and anxious but was alert and oriented with no overt paranoid or delusional thinking. His speech was coherent with no cognition deficits and with fair insight and judgment. He diagnosed bipolar disorder and alcohol dependence and assigned a Global Assessment of Functioning (GAF) score of 55, indicating moderate difficulty in social and occupational functioning. See Quick Reference Guide to the Diagnostic Criteria from DSM-IV, 46-47 (1994). The Veteran began a treatment program but was again admitted in August 2001 for the same symptoms, indications of non- compliance with medication, and alcohol abuse. In February 2002 through March 2002, the Veteran was again admitted for treatment following an attempted suicide by overdose of prescription medication. In December 2003, a VA contract psychiatrist summarized the Veteran's entire history and conducted a mental status examination. The psychiatrist noted the Veteran's "chaotic lifestyle" including homelessness, numerous periods of hospitalization, intermittent employment, and substance abuse. However, the psychiatrist also noted that medication had been effective when used regularly and that the Veteran reported sobriety for the previous six years. On examination, the psychiatrist noted normal orientation, communication, and speech and appropriate behavior, appearance, and hygiene. The Veteran did not experience panic attacks or exhibit obsessional behavior but did have mild, barely audible hallucinations. Affect and mood were abnormal with impaired impulse control. Thought process, abstract thinking and judgment were normal but there was some memory loss and suicide ideation as evidenced by several attempts in the previous five years. The psychiatrist diagnosed severe bipolar disorder, a severe sleep disorder, and exalted mood alternating with suicide ideation that he noted to be typical of the bipolar disorder. The psychiatrist also stated that the Veteran's alcohol abuse was related to his bipolar disorder because of his inability to control risky impulsive behavior. He stated that the Veteran could intermittently perform the activities of daily living including self-care and management of personal affairs but had difficulty in establishing social and work relationships because of a lack of commitment to the associated obligations. He further stated that the Veteran posed a danger to himself and others because he potentially might succeed in his suicide attempts. The psychiatrist assigned a GAF of 45, indicating serious impairment of social and occupational functioning. Based on the foregoing medical history, and in resolving all doubt in the Veteran's favor, the criteria for the assignment of a 70 percent rating are more nearly approximated between September 8, 1991 (one year prior to the date of claim) and April 16, 2001, the date on which the 100 percent rating has been assigned. Although this time frame includes periods where the Veteran's symptoms appear to temporarily worsen, the overall disability picture is severe. This is shown by the GAF scores of 30 and 45, provided in 1992, as well as the various suicide attempts, hospitalizations and failed marriages, for example. Although the evidence certainly shows periods where the symptoms appear to wane, that is to be expected given the Veteran's diagnosis. By its very definition, bipolar disorder is characterized by periods of mania and depression. Thus, the evidence of record showing periods of waxing and waning symptomatology between September 1991 and April 2001 is consistent with the nature of the disorder in this case, and does not necessarily show periods of "improvement" or an overall worsening of the condition. Rather, looking at the overall disability picture throughout this time frame, the Veteran's symptoms are consistently severe, although total social and industrial inadaptability is not shown as to warrant the assignment of a 100 percent rating during that time period. In other words, the Veteran's active manifestations during the time frame between September 1991 and April 2001 were not shown to be of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. First, the evidence shows that the Veteran has been unable to maintain a marital relationship for several years or maintain gainful employment for an extended period of time. However, an inability to obtain gainful employment for short periods and an inability to engage in meaningful relationships is not demonstrated. Although the Veteran is not able to sustain a marriage or a job, his social and occupational impairments are not so limited as to keep him from finding work or developing an intimate relationship, as shown by the evidence of record. Similarly, under the revised criteria, total occupational and social impairment was not shown between November 7, 1996 (the effective date of the revised criteria) and April 2001. In this regard, there was no gross impairment in thought processes or communication, no persistent delusions or hallucinations; grossly inappropriate behavior, if any, was not consistently demonstrated; and there was not an overall 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; or memory loss for names of close relatives, own occupation, or own name. Although the time period prior to 1994 reflected that the Veteran was experiencing cycles of symptoms and behavior that included hallucinations, delusions, depression, suicide attempts, memory loss, limited judgment and insight, and two failed marriages, these symptoms were intertwined with other symptoms clearly indicative of some social and industrial adaptability. For example, after a period of hospitalization in June 1991, it was noted that the Veteran was mildly depressed, potentially suicidal and did not have hallucinations or delusions. After hospitalization in September 1992, the diagnosis was moderate bipolar disorder and the Veteran was considered employable. Moreover, the Veteran did respond to treatment, returned to the community, and was able to restart some personal relationships and work at occasional self- employment projects. Furthermore, starting in January 1993, examiners noted that the Veteran's bipolar disorder was less severe with several examiners noting that his symptoms were stable or that the disorder was in remission. The Veteran had terminated alcohol abuse, was noted to be more compliant with medication, and had started a new domestic relationship. He reported that he took on occasional self-employment as an electrician and was successful at full time employment from 1995 to 1997. Although the Veteran stated at his September 1994 hearing that he could not drive an automobile and that he experienced narcolepsy, cataplexy, and nocturnal paralysis, a medical examiner one month later found no such symptoms, disorders, or incapacity. It is acknowledged that the Veteran was granted disability benefits by SSA; and, although generally VA is not bound by that determination, it is pertinent to the claim. Murinczak v. Derwinski, 2 Vet. App. 363, 370 (1992). However, in this case the adjudication in 1992 was based on prior medical reports. Here, medical evidence starting in 1993 showed improvement in the Veteran's social and occupational adaptability so that a characterization of "severe" but not "total" under the old criteria is most representative. A 70 percent rating under the new regulations was also warranted because the Veteran had deficiencies in most areas including work, family relations, judgment, thinking and mood, due to such symptoms as near continuous depression, suicidal ideation and obsessional rituals. The Veteran reportedly had no friends or close relationships with his children, but did maintain some relationship with his wife and her children and was able to interact with others to the extent that he contracted for individual work and was successfully employed at a business. There was no evidence of violence or impaired impulse control at that time. The Veteran and his physicians noted an overdose of prescription medication in 1996 and cuts on wrists and ankles in 1999 but did not classify the events as suicide attempts. Moreover, the Veteran's employer reported that the Veteran left employment to work for himself. His disability was not reported as a factor that kept him from being able to continue his employment. Finally, the criteria for the assignment of an effective date earlier than April 16, 2001 for a 100 percent rating is not warranted because a level of disability meeting the criteria for a 100 percent rating was not met prior to that date. VA medical reports in April 2001 showed for the first time that the Veteran had engaged in violent behavior as noted by his report of criminal charges for battery. His domestic relationship dissolved, and the Veteran returned to the abuse of alcohol and other risky behavior. It was at that point that the condition was assessed predominantly as severe by medical providers and GAF scores of 35 to 40 were assigned, which indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR there is major impairment in several areas, such as work, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). See DSM IV, supra. GAF scores of 45 to 50 were also provided after April 16, 2001, which indicate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. Although the Veteran reported financial difficulties in 1999 and marital dissolution and homelessness in 2000, there is no medical evidence that the medical symptoms of his disorder became so severe as to warrant a total rating until April 2001. Despite the GAF scores of 30 and 45 provided in 1992, the evidence of record during that time paints a disability picture that more nearly approximates the criteria for a 70 percent rating, and no higher. In other words, the symptoms shown on examination and by way of the Veteran's reported history are not consistent with the GAF scores provided at that time. As explained, the Veteran's symptoms in 1992 were severe, but not total. Finally, bipolar disorder is not the only diagnosed psychiatric disability. As the symptoms of other disorders have not been disassociated from those attributable solely to bipolar disorder, the Board has considered all psychiatric symptomatology in this decision, including alcoholism which the medical evidence states is due to bipolar disorder. Further, while there are indications that the Veteran's bipolar disorder necessitated periods of hospitalization and the Veteran was intermittently unemployed during some periods of time covered by the appeal, the rating criteria contemplates social and occupational impairment caused by the disorder. The symptoms of the Veteran's progressive mental disorder are not so unusual as to render impractical the application of the regular schedular standards. Moreover, his signs and symptoms fit within the schedular criteria as was discussed above. In the absence of evidence of these factors, the criteria for submission for assignment of extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) have not been met. See Thun v. Peake, 22 Vet. App 111, 115- 16 (2008); Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An increased rating of 70 percent for the service-connected bipolar disorder from September 8, 1991 to April 16, 2001, is granted subject to the legal criteria governing the payment of monetary benefits. An effective date earlier than April 16, 2001 for a 100 percent rating for bipolar disorder is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs