Citation Nr: 1105433 Decision Date: 02/09/11 Archive Date: 02/18/11 DOCKET NO. 05-03 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for attention deficit hyperactivity disorder (ADHD). 2. Entitlement to an initial disability rating in excess of 10 percent for bipolar II disorder with recurring major depressive episodes intermixed with hypomanic episodes, previously rated as depression, prior to April 23, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service in the United States Navy from June 3, 1980 to July 31, 1980, and in the United States Coast Guard from May 1985 to March 1989. The Board of Veterans' Appeals (Board) notes that by May 2000 rating decision, the Honolulu, Hawaii Regional Office (RO) of the Department of Veterans Affairs (VA) denied service connection for major depression on the basis that the claim was not well grounded. Subsequently, the Veteran sought to reopen this claim. In December 2001, he filed a claim of entitlement to service connection for ADHD. This matter comes before the Board of Veterans' Appeals (Board) from a July 2003 rating decision of the Columbia, South Carolina RO which granted service connection for depression, and assigned a 10 percent disability rating, effective from February 2, 2000, and denied service connection for ADHD. The claim has since been transferred to the RO in Newark, New Jersey. In June 2007, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge. In September 2007, the Board remanded these claims to correct a notice deficiency and for additional evidentiary development, to include obtaining a VA examination with opinions. As will be explained more fully below, the Board is satisfied that there has been substantial compliance with the remand directives set out in September 2007. Stegall v. West, 11 Vet. App. 268 (1998). By December 2008 rating decision, the RO granted a 100 percent disability rating for bipolar II disorder with recurring major depressive episodes intermixed with hypomanic episodes, previously rated as depression, effective from November 4, 2008. In July 2009, the Board again remanded this matter to the RO via the Appeals Management Center (AMC), in Washington, DC., in order to conduct more evidentiary development. The record reflects that the Veteran's records from the Social Security Administration were obtained; thus, the Board is satisfied that there has been substantial compliance with the remand directives set out in July 2009. Stegall v. West, supra. By September 2010 rating decision, the RO granted a 100 percent disability rating for bipolar II disorder with recurring major depressive episodes intermixed with hypomanic episodes, previously rated as depression, effective from April 23, 2008. The Veteran has continued his appeal for a higher rating (in excess of 10 percent) prior to April 23, 2008. FINDINGS OF FACT 1. The competent and probative medical evidence of record preponderates against a finding that the Veteran has or ever had ADHD. 2. Prior to April 23, 2008, and resolving any doubt in favor of the Veteran, his service-connected bipolar II disorder with recurring major depressive episodes intermixed with hypomanic episodes was manifested by no more than mild to moderate symptoms and mild to moderate occupational and social impairment, including varied symptoms such as depressed mood, anxiety, sleep impairment, and mild memory loss. CONCLUSIONS OF LAW 1. ADHD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). 2. Affording the Veteran the benefit of the doubt, the criteria for an initial 30 percent rating, but no greater, for bipolar II disorder with recurring major depressive episodes intermixed with hypomanic episodes been met prior to April 23, 2008. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) previously held that any error in VCAA notice should be presumed prejudicial, and that VA must bear the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (2007). However, the United States Supreme Court (Supreme Court) has reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2), which provides that, in conducting review of a decision of the Board, a court shall take due account of the rule of prejudicial error. The Supreme Court in essence held that - except for cases in which VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In a claim for increase, the VCAA requirement is for generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed.Cir. 2009). In this case, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in March 2003, April 2005, March 2006, and October 2007, that fully addressed the notice in this matter. These letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board also notes that the RO sent the Veteran a letter in March 2006 informing him of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. Moreover, he has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. Thus, the Board concludes that all required notice has been given to the Veteran. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims. The RO has obtained the Veteran's VA and private treatment records, as well as records from the Social Security Administration. The record reflects that the Veteran underwent a VA examination in November 2008 regarding his claim for service connection for ADHD, and underwent a VA examination in May 2003 to assess severity of his service-connected psychiatric disorder. The Board finds that these VA examinations are adequate, and that each examination included a review of the claims folder and a history obtained from the Veteran. Examination findings were reported, along with diagnoses/opinions, which were supported in the record. These examination reports are therefore adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is the Board's conclusion that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. Accordingly, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Service Connection for ADHD 1. Factual Background Service treatment records (STRs) showed that in October 1987, the Veteran was treated for major depression with suicidal ideation. He was subsequently seen for continuing psychopharmacotherapy by a private psychiatrist. In a December 1988 report of hospitalization, it was noted that the Veteran had been referred for psychiatric evaluation after suicidal gestures. He reported that in grammar school he was diagnosed as a hyperactive child and the psychiatrist wanted to treat him with Ritalin, but his parents refused. During his hospitalization, his primary diagnosis was ineffective individual coping. He was eventually discharged in stable condition and was to be seen for follow up as an outpatient. He was evaluated in December 1988 by a staff psychiatrist who opined that the Veteran met the criteria for administrative separation. The psychiatrist opined that there was no evidence of psychosis or neurosis, and that the Veteran was unable to adjust socially and emotionally to service life. The psychiatrist felt that the Veteran would not do well in service and had a very poor prognosis. In a letter dated in November 1998, a private psychologist, M. Beekman, reported seeing the Veteran to help him cope with vocational issues, and the Veteran's attentional difficulties had become more apparent. It was noted that the Veteran met the criteria for attention deficit/hyperactivity disorder, combined type. The Veteran reported he was overactive and a problem in school and at home. In a December 1998 private psychiatric evaluation, the Veteran was referred with a possible diagnosis of ADD, and it was noted that he was having difficult grasping material at school. The examiner noted that the Veteran was not a very good historian. He believed he had ADHD as a child. The diagnoses included ADHD, history of major depression, PTSD, all in remission. Private prescription forms dated in December 1998 showed that the Veteran was prescribed Ritalin. In a termination summary dated in May 1999, M. Beekman, Ph.D. indicated that the Veteran was seen for 8 sessions of cognitive behavior therapy, and during treatment his attentional difficulties became apparent, and he met the criteria for DSM-IV ADHD, combined type, in November 1998. VA treatment records showed that in January 2000, the Veteran reported he worked as a warehouse laborer. He reported exercising everyday to and from work. An undated problem list sheet showed that the Veteran had ADD with marked dysthymic features. The date of onset was listed as January 1970 and the date the problem was recorded was listed as February 2000. On a March 2000 mental health screening assessment, it was noted that the Veteran had a long history of ADD with problems with attention, focusing, completing tasks, and being organized. In an April 2000 VA treatment record it was noted that the Veteran reported that with his ADD he always had problems processing math problems and now was sad he did not get the help he needed as a child as he was never diagnosed with ADD. On a June 2000 psychiatric examination report it was noted that the Veteran had a history of childhood ADHD. In a June 2000 VA mental health clinic intake report, the Veteran complained of depression and ADHD and it was noted that he carried the diagnosis of ADHD since he was seven years old. His parents refused to have him on Ritalin. Received from the Veteran in December 2001 was a claim for service connection for ADHD. On VA examination in May 2003, the Veteran reported he had received treatment for depression and ADHD in the past. The current diagnoses included ADHD. In June 2007, the Veteran testified that he believed his ADHD was present when he went into service, but he was not aware of it. He claimed that his ADHD was aggravated by service. He testified that he was treated for depression in service, but that depression and ADHD were intertwined, and it was not unusual for someone with ADD or ADHD to also deal with depression. An ER physician report from Monmouth Medical Center, dated April 23, 2008, showed that the Veteran was brought in after he became extremely agitated and started throwing benches around when he could not get into the bathroom. After evaluation in the emergency department, the clinical impression was depression with agitation and exacerbation of ADHD. In June 2008 the Veteran was admitted for hospitalization at Riverview Medical Center, and on his history and physical examination he reported his problems began as a young child, and he was fire setting, had ADD, ODD, and conduct disorder in school. He stated that he was one problem after another. A discharge summary dated in June 2008 from Riverview Medical Center showed that the Veteran was admitted with a history of mood swings and getting into arguments. He had a long history of chronic behavioral problems and difficulties from childhood, including ODD and ADD. The discharge diagnoses included bipolar disorder, generalized anxiety, and ADD. On VA examination in November 2008, the examiner noted that review of the Veteran's claims folder revealed that he may have had treatment for attention deficit disorder prior to service. On interview, however, the Veteran denied ever being treated for ADD (attention deficit disorder) prior to service, and stated that the first time ADD was diagnosed was following discharge from service when he was living in Hawaii. The examiner noted that although the Veteran was somewhat unclear on dates and milestones, he was clear with regard to this. The examiner also indicated that it was likely that the diagnosis of ADD was incorrect and rather represented the manic stage of what appeared to be bipolar disorder. The examiner reiterated that although the Veteran was a bit unclear with regard to specific dates of hospitalization and other important milestones of treatment, he was extremely clear with regard to the fact that no ADD was ever diagnosed prior to service, nor did he receive any psychiatric services prior to service. The examiner indicated that the Veteran's information was considered to be adequate, and he was considered to be a reliable informant. The examiner summarized that based upon examination of the Veteran and review of medical records, there was no evidence that the Veteran ever received treatment for ADD prior to service. The diagnoses included bipolar II disorder, recurring major depressive episodes intermixed with hypomanic episodes, which he appeared to experience on a daily basis. The examiner concluded with stating that no evidence of ADD existed in the treatment records or based upon review of prior treatment. The examiner indicated that based upon the Veteran's history, ADD was first diagnosed while the Veteran was living in Hawaii following discharge from the military. The examiner opined that it was likely that ADD was actually hypomanic symptoms that the Veteran displayed as he alternated between major depressive episodes, and that, as a consequence, the Veteran seemed to be suffering from bipolar II disorder with prominent features of major depressive disorder, and that this was considered an evolution of the major depressive disorder that he experienced in service. 2. Analysis Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Under VA laws and regulations, personality disorders and other disabilities considered congenital and developmental in nature are not deemed compensable diseases for VA purposes. As ADHD has been considered a developmental disorder, it is not deemed a compensable disease for VA purposes. 38 C.F.R. § 3.303(c). Under certain circumstances, however, service connection may be granted for such disorders if shown that they were subject to a superimposed disease or injury during military service that resulted in disability apart from the developmental defect. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990) [a reissue of General Counsel Opinion 01-85 (March 5, 1985)]. Service connection may also be granted for a congenital disease on the basis of in-service aggravation. Id. In that General Counsel opinion, it was noted that a disease considered by medical authorities to be of congenital, familial (or hereditary) origin by its very nature preexists claimants' military service, but that service connection for such diseases could be granted if manifestations of the disease in service constituted aggravation of the condition. See also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board notes that the Veteran's contentions as to his claim for service connection for ADHD have varied. In June 2007, he testified he believed ADHD was present when he went into service, but he was not aware of it, and claimed that ADHD was aggravated by service. He testified that he was treated for depression in service, but that depression and ADHD were intertwined, and it was not unusual for someone with ADD or ADHD to also deal with depression. In numerous VA and private records, dated prior to November 2008, it was noted that the Veteran reported he had been treated for ADD or ADHD or attention problems as a child, claiming that Ritalin was prescribed but his parents refused to give that to him. On the VA examination in 2008, however, the examiner noted that the Veteran denied ever being treated for ADD prior to service or receiving any psychiatric services before service, and that the Veteran claimed that the first time ADD was diagnosed was following discharge from service when he was living in Hawaii. Reviewing the record, the Board notes there is no evidence of diagnosis of or treatment for any ADD, ADHD, or attention disorders during active military service or for many years thereafter. Although STRs show he was treated for depression in service, there was no mention of or diagnosis of any attention disorders. As noted above, there was no actual diagnosis of any ADD or ADHD until November 1998 - when a private psychologist saw the Veteran to help him with vocational issues and his attentional difficulties became apparent, and he met the criteria for attention deficit/hyperactivity disorder, combined type - which was 9 years after his discharge from service. With respect to Hickson element (1), the Board notes that the preponderance of the competent and probative medical evidence of record is against a finding of a current (or even a prior) diagnosis of ADHD. While prior private and VA treatment records dated from 1998 through 2008, as well as a VA examination in 2003, have shown diagnosis of and treatment for ADHD, on the most recent VA examination in November 2008, the examiner opined, based on a review of the claims folder and interview of the Veteran, that it was likely that the diagnosis of ADD was incorrect and rather represented the manic stage of what appeared to be bipolar disorder. The examiner further explained that it was likely that ADD was actually hypomanic symptoms that the Veteran displayed as he alternated between major depressive episodes. The Board finds that although prior medical professionals have diagnosed ADD and/or ADHD, the opinion provided by the VA examiner in 2008 is probative and persuasive as to the issue of whether the Veteran has ADHD. In that regard, the Board notes that it is clear that the VA examiner reviewed the Veteran's complete records and used definitive and unequivocal language in rendering an opinion with supporting rationale. Accordingly, based on the VA examiner's opinion in November 2008, the preponderance of the competent medical evidence of record does not indicate the presence of a valid diagnosis of ADHD at any time during the appeal period. Cf. McClain v. Nicholson, 21 Vet. App. 319 (2007). Service connection presupposes a diagnosis of a current disability, and a "current disability" means a disability shown by competent medical evidence to exist. See Brammer v. Derwinski, supra; see also Chelte v. Brown, 10 Vet. App. 268 (1997). Thus, after reviewing the record, the Board concludes that there the competent medical evidence of record is against finding a diagnosis of ADHD. As the Veteran does not have ADHD, service connection cannot be granted for that claimed disability. As the preponderance of the evidence is against the claim of service connection for ADHD, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As an aside, the Board also notes that even if service connection for ADHD were to be granted, such disability would be assigned a disability rating pursuant to the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Because the Veteran has already been granted service connection for bipolar II disorder, and assigned a disability rating (100 percent effective April 23, 2008, and 30 percent prior to April 23, 2008) therefor, pursuant to the General Rating Formula for Mental Disorders as set out in 38 C.F.R. § 4.130, the Veteran would receive no additional benefits even if he were to be granted service connection for ADHD. III. Initial Rating in Excess of 10 Percent for Bipolar II Disorder, prior to April 23, 2008 1. Factual Background VA treatment records showed that in January 2000, the Veteran was seen for intake, and complained of fatigue, insomnia, and fantasies about suicide. He was depressed about not having time to himself, and complained of short term memory loss. He came to Hawaii to rescue a female friend and their relationship was strained. The assessment was acute psychological distress. In February 2000, he was found to be dysthymic and unfocused and showed questionable benefits from medication. He complained of increased insomnia. In March 2000, he appeared increasingly stable and open to treatment and benefitting from medication. He felt much less depressed. The assessment was ADD, chronic, severe, with dysthymic features. There were no homicidal or suicidal features, and no evidence of psychosis. In a March 2000 mental health screening assessment, the Veteran complained of sadness and lack of focus with a history of ADD with residual PTSD since a motor vehicle accident in the 1990s. He also had periods of depression and suicidal ruminations. With regard to social support, it was noted that he was isolated with one female friend. His personal care was good, and he was in vocational rehabilitation and being supported on welfare. On mental status examination, he was oriented, coherent, unfocused, and distractible, with decreased social skills, good abstraction ability, and no evidence of psychosis. He was not suicidal. It was noted that the Veteran had severe ADD with dysthymia, and he was social isolated. VA treatment records further showed that in April 2000, the Veteran felt his medication was helpful and he felt increasingly able to mobilize himself in a focused way with less attentional difficulties and an increasingly positive mood. He was relocating to a new city, and was focused on vocational rehabilitation in the computer field. The assessment continued to be ADD, adult, with dysthymic features, in increasingly good control. A June 2000 VA hospitalization report showed that the Veteran complained of significant problems with a depressed mood and suicidal ideation since the breakup with a girlfriend in February. He reported spending most of his savings to come live with this woman and then she broke up with him, and he was struggling to find steady work and became depressed. He had moved to Honolulu to attend vocational rehabilitation classes. He had to live in IHS while awaiting welfare benefits, and claimed IHS was unbearable to him due to the other people living there, and he had become suicidal over the weekend. The hospital course for the Veteran was that he was restarted on medication and therapy and was noted to have obsessive traits which may lead to his depressed mood. On discharge, he was stable and his suicidal ideation had resolved. The discharge diagnoses included major depressive disorder, and a Global Assessment of Functioning (GAF) score of 80 was assigned. In a June 2000 VA work therapy intake report, the Veteran reported he wanted to go back to work, and had many civilian jobs, but none lasting more than two years, reportedly due to him not being able to find his niche. He had finally found something he likes, computer work. For leisure activities he read the Bible, attended mass, and went to the library and movies. He attended several Bible study groups, but lacked close friends. In a June 2000 private psychiatric examination report, the Veteran's symptoms included appetite disturbance with change in weight, sleep disturbance, recurrent thoughts of death/suicide, difficulty concentrating or thinking, feelings of guilt or worthlessness, and depressed mood. The examiner described the Veteran's functional limitations as slight or seldom restriction of activities of daily living, marked or repeated difficulties in maintaining social functioning, marked or repeated deficiencies of concentration, persistence, or pace, and marked or repeated episodes of deterioration or decompensation. The examiner opined that the Veteran could not perform either manual or sedentary work of at least 30 hours a week and his incapacity/disability was expected to last until September 2000. A June 2000 VA treatment record showed that the Veteran was seen by an occupational therapist and reported he would like to resume working, and had had trouble getting a job. He was informed he would need to work on his interpersonal skills. He was also seen in June 2000 in the mental health clinic, and reported compliance with medication and was making progress in finding work. He complained of difficulty falling asleep, and continued to be frustrated with his girlfriend breaking up with him. He was excited about starting his computer training course, and hoped that this and church work would keep him busy and social. On mental status examination he was oriented, calm, and cooperative, and had good hygiene. He had slight pressured speech. He was euthymic and had a congruent affect. His though processes were linear and logical, but somewhat circumstantial at times. He had fair to good insight, and fair judgement, but fair to poor impulse control. His cognitive thinking was intact. The diagnoses included ADHD and MDD recurrent in partial remission. A GAF score of 45 was assigned, and it was noted that the highest GAF score was 60. In a September 2000 private psychiatric examination report by Dr. Ross, it was noted that the Veteran had a long history of depressed mood with suicide attempts. He was currently depressed and angry, and had intermittent suicidal and homicidal ideation. He was taking an anti-depressant. His symptoms included sleep disturbance, fatigue/loss of energy, recurrent thoughts of death/suicide, difficulty concentrating or thinking, feelings of guilt or worthlessness, and a depressed mood. Dr. Ross described the Veteran's functional limitations as marked or repeated restriction of activities of daily living, marked or repeated difficulties in maintaining social functioning, extreme or constant deficiencies of concentration, persistence, or pace, and marked or repeated episodes of deterioration or decompensation. He was to attend therapy once a week and have medication monitoring. Dr. Ross opined that the Veteran could not perform either manual or sedentary work of at least 30 hours a week and his incapacity/disability was expected to last until March 2001. A November 2000 VA treatment record shows that the Veteran came in wanting psychiatric treatment and had been referred by a nurse. The diagnostic impression was ADD with dysthymia. On mental status examination he was oriented, but with poor attention, poor sleeping, and poor organization. He had no suicidal or homicidal ideation. There was mild anxiety and dysthymia in his affect. He had a mildly atypical thought process, but there was no evidence of psychosis. In a December 2000 private psychiatric examination report it was noted that the Veteran had sleep disturbance and a depressed mood, and took Wellbutrin for depression. The examiner described the Veteran's functional limitations as marked or repeated restriction of activities of daily living, marked or repeated difficulties in maintaining social functioning, marked or repeated deficiencies of concentration, persistence, or pace, and moderate or often episodes of deterioration or decompensation. He was to continue with his treatment. The examiner opined that the Veteran could not perform either manual or sedentary work of at least 30 hours a week, and his incapacity/disability was expected to last until June 2001. On VA examination in May 2003, the Veteran reported having depression with poor energy and concentration. He was forgetful and had difficulty paying attention. He had difficulty following instructions and organizing his work, and was distracted easily. He was working in pest control full time and was generally able to do his job. He lived with his mother, had few friends, and appeared to be isolative. On mental status examination he was oriented and cooperative, but his mood was irritable. His affect and speech were normal, and he had no perceptual problems. His thought process and content were normal, and he had no suicidal or homicidal ideation. His insight, judgment, and impulse control were fair. The diagnoses included depression and ADD. A GAF score of 50 was assigned, and it was noted that the Veteran had moderate symptoms and was somewhat isolative. A private treatment record from the Family Medicine Residency Center, dated in September 2006, showed that the Veteran reported being very depressed by the current situation he was in - which included being on worker's compensation after a back injury, and having the cause of his back pain be called into question. He reported problems sleeping, decreased appetite, low energy, irritability, and anger at the situation he was in. He had no desire to harm himself. He reported he was a loner and could not ask his family for help. In June 2007, the Veteran testified that he had fatigue, lack of motivation, and loss of appetite. He claimed he isolated himself and had no social life. He was not receiving any medication or treatment for his depression, claiming he could not afford it. He indicated he was looking for work at that time, and that for the past five years he had been a termite technician, but was not able to do the physical work anymore because of his herniated disc the year prior. He testified he had no friends, and only saw his family on holidays because he did not like to be around them too much. He testified that on a typical day he spent most of his time at home, and did research to find work and watched DVDs. An ER physician report from Monmouth Medical Center, dated April 23, 2008, showed that the Veteran was brought in after he became extremely agitated and started throwing benches around when he could not get into the bathroom. He reported wanting to kill himself. On examination he was alert and oriented and in moderate emotional distress. He denied hallucinations or delusions, and his affect was flat and tearful. After evaluation in the emergency department, the clinical impression was depression with agitation and exacerbation of ADHD. He was stable and discharged and arrangements were made for psychiatric evaluation and possible admission. On VA examination in November 2008, the Veteran reported he worked a variety of different jobs from 1989 to 2001, and reported that no job lasted more than six months and he would frequently quit jobs. He reported that his longest job was working in pest control from 2001 to 2005. He claimed he stopped working due to a herniated disc in his back. He had not worked since 2005, and had been homeless since the summer of 2008. Records obtained from the Social Security Administration for the Veteran show that he was found to be disabled as of April 23, 2008, with a primary diagnosis of affective/mood disorders. 2. Analysis Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, Part 4. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2, which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). By September 2010 rating decision, the RO granted a 100 percent rating for bipolar II disorder with recurrent major depressive episodes intermixed with hypomanic episodes, previously rated as depression, effective from April 23, 2008, and pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434. This represented a partial grant of the claim, as the Veteran may still be entitled to an initial rating in excess of 10 percent prior to April 23, 2008. Thus, the Veteran's bipolar II disorder, with recurrent major depressive episodes intermixed with hypomanic episodes, is 10 percent disabling, prior to April 23, 2008, under 38 C.F.R. § 4.130, Diagnostic Code 9434, which provides a 10 percent rating for occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by continuous medication. Id. A 30 percent disability evaluation is warranted for 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, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent disability evaluation is assigned under the general rating formula for mental disorders where the evidence shows occupational and social impairment 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 in short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. The Board observes that the medical evidence of record for the time period in question includes a VA examination report dated in 2003, as well as VA and private treatment records, and the Veteran's testimony. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Considering the medical evidence of record as well as the Veteran's statements and testimony, and affording the Veteran the benefit of the doubt (see 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102), the Board determines that the Veteran's symptomatology from his bipolar II disorder with recurring major depressive episodes intermixed with hypomanic episodes, prior to April 23, 2008, more closely approximates the criteria for a 30 percent rating under DC 9434. The Board acknowledges that not all relevant symptomatology is addressed by all treatment records and evaluations. In determining that the criteria for a 30 percent rating for the Veteran's bipolar II disorder with recurring major depressive episodes intermixed with hypomanic episodes are met during the time frame under consideration, the Board has considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the higher rating for bipolar II disorder with recurring major depressive episodes intermixed with hypomanic episodes. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Specifically, the Board finds that the Veteran's psychiatric disability is productive of mild to moderate occupational and social impairment, due to symptoms such as depressed mood, anxiety, sleep impairment, and mild memory loss. The Board also observes that during the time period in question (prior to April 23, 2008) the Veteran's symptoms have varied, somewhat widely, and at times included suicidal thoughts. However, it appears that he maintained full time employment in pest control through 2006, at which time he apparently injured his back and received workers compensation. Subsequently, he reported he was looking for working. In addition, along with varied symptoms, the Veteran's GAF scores during this period have also varied from 80 to 45. Nonetheless, viewing the pertinent and competent evidence of record prior to April 23, 2008, as well as the frequency, severity, and duration of the Veteran's psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission, the Board finds that the Veteran's symptomatology from his bipolar II disorder with recurring major depressive episodes intermixed with hypomanic episodes, more closely approximates a 30 percent disability rating. 38 C.F.R. § 4.7. The Board does not, however, find that the Veteran's symptomatology from his bipolar II disorder with recurring major depressive episodes intermixed with hypomanic episodes supports or approximates a 50 percent disability rating. In that regard, the competent evidence of record prior to April 23, 2008 does not show occupational and social impairment 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 in short-term and long-term memory; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, or other typical symptoms of a 50 percent rating. Mauerhan v. Principi, supra. In this regard, the Board notes that he has not exhibited a flattened affect or problems with his speech, he has not reported having panic attacks, and he has not had impaired thinking. While he reportedly had problems with concentration and being forgetful, overall he was able to maintain full time employment for at least five years, and only stopped working because of an on-the-job back injury. He reported being isolative, but had some leisure activities including reading the Bible, and going to church, the library and movies. The Board notes that prior to April 23, 2008, overall, the Veteran exhibited at most moderate symptoms and moderate occupational and social impairment due to his bipolar disorder. As such, the Board concludes that the Veteran's psychiatric symptoms shown do not support the assignment of a higher 50 percent rating, for the Veteran's bipolar II disorder with recurring major depressive episodes intermixed with hypomanic episodes. In the present case, the Board has applied the benefit of the doubt in assigning an initial 30 percent rating, effective prior to April 23, 2008. Thus, the preponderance of the evidence is against a rating in excess of 30 percent for that period. The Board concludes that prior to April 23, 2008, the criteria for an initial 30 percent, but no higher, rating for the service- connected bipolar II disorder with recurring major depressive episodes intermixed with hypomanic episodes, have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.7. (CONTINUED ON NEXT PAGE) ORDER Service connection for ADHD is denied. An initial 30 percent rating for bipolar II disorder with recurring major depressive episodes intermixed with hypomanic episodes, prior to April 23, 2008, is granted; subject to the regulations governing payment of monetary awards. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs