Citation Nr: 1317274 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 09-39 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial increased evaluation for service-connected bipolar disorder, evaluated as 30 percent disabling prior to January 31, 2012, and as 50 percent disabling thereafter. 2. Entitlement to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from December 1983 to March 1988. This appeal to the Board of Veterans Appeals (Board) arises from a January 2009 rating action of the St. Louis, Missouri, Regional Office (RO), of the Department of Veterans Affairs (VA), which granted service connection for bipolar disorder, evaluated as 30 percent disabling, with an effective date for service connection of January 10, 2008. The Veteran appealed the issue of entitlement to an increased initial evaluation for bipolar disorder. In March 2012, the RO increased the Veteran's evaluation for bipolar disorder from 30 percent to 50 percent, and assigned an effective date for the 50 percent rating of January 31, 2012. Since this increase did not constitute a full grant of the benefit sought, the bipolar disorder increased initial evaluation issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to January 31, 2012, the Veteran's bipolar disorder is shown to have been productive of symptoms that included depression, irritability, anger, suicidal thoughts (without plan or intent), and difficulty concentrating, but not occupational and social impairment with reduced reliability and productivity. 2. As of January 31, 2012, the Veteran's bipolar disorder is shown to have been productive of symptoms that included depression, suicidal thoughts (without plan or intent), lack of energy, and difficulty concentrating, but not occupational and social impairment, with deficiencies in most areas. CONCLUSION OF LAW 1. Prior to January 31, 2012, the criteria for an initial evaluation in excess of 30 percent for service-connected bipolar disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code 9432 (2012). 2. As of January 31, 2012, the criteria for an evaluation in excess of 50 percent for service-connected bipolar disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code 9432 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Increased Initial Evaluation The Veteran asserts that he is entitled to an increased evaluation for his service-connected bipolar disorder. In January 2009, the RO granted service connection for bipolar disorder, evaluated as 30 percent disabling, with an effective date for service connection of January 10, 2008. The Veteran appealed the issue of entitlement to an increased initial evaluation for bipolar disorder; and, in March 2012, the RO granted the appeal, to the extent that it increased the Veteran's evaluation for bipolar disorder from 30 percent to 50 percent, and assigned an effective date for the 50 percent rating of January 31, 2012. Given the foregoing, appeal period is from January 10, 2008 to the present. See 38 C.F.R. § 3.400(b)(1) (2012). The Veteran is appealing the original assignment of a disability evaluation following an award of service connection. In such a case, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating a mental disorder consideration will be given to the frequency, severity, and duration of symptoms, the length of remissions and capacity for adjustment during that time. The evaluation will be based on all the evidence of record and not solely an examiner's assessment of the level of disability. 38 C.F.R. § 4.126(a). While social impairment is considered, a rating will not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The RO has evaluated the Veteran's bipolar disorder under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Under DC 9411, Under DC 9411, a 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, 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; or mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted where the disorder is manifested by 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 is warranted where there is 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 ideations; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. The Global Assessment of Functioning (GAF) scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994). GAF scores ranging from 41 to 50 reflect 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). GAF scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). See Quick Reference to the Diagnostic Criteria from DSM-IV at 47 (American Psychiatric Association 1994) ("QRDC DSM-IV"). Although some of the Veteran's recorded symptoms are not specifically provided for in the ratings schedule (e.g., such symptoms as nightmares), the symptoms listed at 38 C.F.R. § 4.130 are not an exclusive or exhaustive list of symptomatology which may be considered for a higher rating claim. Mauerhan v. Principi, 16 Vet. App. 436 (2002). While SSA decisions regarding unemployability are clearly relevant and should be weighed and evaluated, they are not controlling with respect to VA determinations. See e.g., Damrel v. Brown, 6 Vet. App. 242, 246 (1994); Odiorne v. Principi, 3 Vet. App. 456, 461 (1992); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). With regard to the history of the disability in issue, see 38 C.F.R. § 4.1 (2012), the Veteran's service treatment reports show that he was noted to have received psychotherapy for an explosive temper prior to service, at which time his diagnosis was adjustment reaction, and that his condition was thought to be resolved upon entrance into service. A September 1984 report states that the Veteran claimed to have abdominal pains that were without medical explanation, and which were psychological manifestations, against a background of job dissatisfaction and inadequate coping skills. His discharge diagnoses included psychological factors affecting physical conditions. A January 1987 report notes possible suicidal ideation. A September 1987 report notes that the Veteran complained about his chain of command, and the Navy; it contains a diagnosis of adjustment disorder. A January 1988 report notes that he had multiple UA's (unauthorized absences) and a RIR (reduction in rate). A February 1988 report contains a diagnosis of adjustment disorder with disturbances in mood, and ETOH (alcohol) abuse. The Veteran's separation examination report, dated in March 1988, notes a history of mixed personality disorder with suicidal ideation. He was discharged due to a personality disorder. As for the post-service medical evidence, private treatment reports show that in February and August of 2006, the Veteran was hospitalized after suicide attempts involving overdoses of medication, accompanied by use of alcohol. In January 2007, he was hospitalized for suicidal ideation. In December 2007, he was hospitalized after a motor vehicle accident (MVA), which caused fractures of the cervical and lumbar spines, at which time he was afforded Axis I diagnoses of alcohol dependence, mood disorder, not otherwise specified, and rule out substance-induced mood disorder. 1. Prior to January 31, 2012 The relevant medical evidence is summarized as follows: Overall, VA progress notes show ongoing treatment for psychiatric symptoms, with management of symptoms with medications that included citalopram, divalproex, and quetiapine. This evidence tends to show that the Veteran was found to be oriented times three (time, place and person), with clear speech, fair attention and concentration, and no delusions, hallucinations, or paranoia. It also tends to show that he had mood congruent with thought processes, and that he was appropriately focused, and clear and coherent. There is some evidence of suicidal ideation, without plan or intent. He complained of symptoms that included depression and anxiety. They contain GAF scores ranging from 45 to 55. For example, there were two scores of 45 in July and August of 2008, a score of 48 in December 2008 and February and March of 2010, a score of 55 in February 2009, no less than 16 scores of 50 between February 2008 and January 2010, and approximately eight scores of 52 between May 2010 and November 2011. The VA outpatient evidence includes a February 2008 report which shows that the Veteran stated that he had worked as a telemarketer full-time up until his December 2007 MVA. A January 2009 report shows that the Veteran reported that he went shopping daily, that he got up at 1 p.m. and watched television, and that he saw a friend twice a week. He was unable to describe mania and denied suicidal thoughts. A February 2009 report shows that he reported that he sat around and watched television, and that he complained that there was not a lot to do around his area. He sometimes walked 100 to 200 yards. He played video games with his nephew. He did not have a driver's license, which apparently had been suspended due to driving under the influence of alcohol, but he hoped to get it back the following month. An April 2009 report shows that he complained that there was not a lot to do in his area, that he slept 8 to 9 hours per night and was rested, and that he visited his family. He complained that he could not get a fishing license because he owed child support, but that he may get this straightened out when he got his SSA settlement. He complained of depression and irritability. A November 2009 report shows that he reported that he was living with his father, who was ill. He slept about 11 hours per night. He reported having gotten his disability claim approved. His mood was "just existing." A March 2010 report shows that he reported that he had bought a car, and was sleeping 8 to 9 hours per night, with an all right mood. He stated that he played video games and planned to visit friends. He was caught up on his child support and wanted to petition a court to see his children. A July 2010 report shows that he reported that his nephew and his nephew's girlfriend were living with him. He stated that he feels he is doing well, and that, "Things are great, but not that bad either." He was planning to take a class related to a 3 year-old DUI (driving under the influence of alcohol). He complained of loneliness. Reports dated in September 2010 show that he stated that he was under a lot of stress related to his bills, and that he wanted to move to another town where his friends were so he could improve his social life, and fish. He was sleeping about 8 hours and taking a nap for one to two hours. He complained of depression and irritability. He stated that overall, he was "okay." A January 2011 report notes that he was sleeping 11 hours a day including naps, and that he was napping "due to boredom." He complained that he was living alone and did not like it, and that his car was in the shop and he could not go anywhere. A March 2011 report shows that he was noted to have a history of calling to check on his claim for an increase in his service connected disability so that he could afford to get a lawyer and get visitation with his children. See also September 2010 report. He was living alone and was not able to get out much due to car problems. He complained that he did not have any furniture, and that he could not fit any furniture into his apartment. He was noted to be resistant to ideas to makes his life easier. A June 2011 report notes complaints of depression related to being apart from his children, but that his son would be living with him over the summer. He reported sleeping 8 hours, and taking a 2-hour nap daily. He complained of a "nonexistent" appetite. An August 2011 report notes that he keeps in contact with his friends in another town, and that he gets along well with his mother, nephew, and great nephews. His son had moved home. A November 2011 report notes that he had gained about 8 pounds since his August 2011 treatment, and that he weighed 195 pounds. He stated that his mood was good, that he was sleeping fine (about 10 hours total), and that he keeps in touch with his friends by phone. He watched television and played games for enjoyment. A January 30, 2012 report notes a 5-pound weight loss since November, and that the Veteran weighed 190 pounds. A VA examination report, dated in December 2008, shows that the examiner stated that the Veteran's claims file had been reviewed. The Veteran reported that he had been receiving treatment about once a month in 2008, to include mood stabilizers. He stated that he had not worked for over a year due to fractures to his neck and back from being in an MVA. The examiner noted that the Veteran had a longstanding maladaptive pattern dating back to at least adolescence. The Veteran complained of symptoms that included severe depression, suicidal ideation, decreased mood, interest, and energy, mania with racing thoughts, impulsive spending, decreased need for sleep, anger, irritability, and occasional periods of euphoria. He claimed to have had about 50 jobs since separation from service, with a history of quitting or being fired due to anger, irritability, impatience, and difficulty in concentration and interacting with others. Most recently, he stated that he had been a deliveryman for two years, and that he had been doing fairly well at that job until his accident. He stated that he had been divorced for over two years, that he was currently living with his parents, and that he was unemployed. He complained of social isolation due to back pain. On examination, the Veteran was alert, oriented and cooperative. Mood was mildly depressed. Affect was somewhat guarded. Thoughts were clear and goal-oriented. There was no evidence of delusions or hallucinations. Cognitive abilities were grossly intact, to include capacities for abstraction, memory, and judgment. There was no paranoia, panic, obsesssional rituals, or hypervigilance. He reported chronic passive suicidal ideation without plan or intent. He was noted to be able to care for his own activities of daily living. The Axis I diagnosis was bipolar disorder. A GAF score of 50 was assigned. A decision of the Social Security Administration (SSA), dated in October 2009, shows that the SSA determined that the Veteran was disabled as of December 2007, with severe impairments of status post multiple fractures of the spine, and bipolar disorder/depression. The Veteran provided a work history showing multiple overlapping jobs which indicated that between 1992 and 2007, he had worked as a cook cab driver (about seven years), a mechanic (one year), a telemarketer (four years), and as a driver (most recently) (between 2005 and 2007). Associated records include a report noting functional limitations which indicates none to "one or two" repeated episodes of decompensation, mild to marked difficulties in maintaining social functioning, mild to moderate restriction of activities of daily living, and mild to marked difficulties in maintaining concentration, persistence, or pace. The SSA records also include an August 2009 report from M.C., HNP, who determined that the Veteran was "not significantly limited" in two out of three areas involving understanding and memory, five out of seven areas involving sustained concentration and persistence, three out of five areas involving social interaction and memory, and three out of four areas involving adaptation. He was "moderately limited" in the other areas. Consultant's notes indicate that he had intact memory and cognitive skills and that no deficiencies were noted. The report notes, "As long as the claimant uses excessive alcohol, he would appear unable to function at work on a consistent basis," and that "[t]he evidence suggests that without DAA (drugs and alcohol), his functioning is not at a severe level." The Board finds that prior to January 31, 2012, an initial evaluation in excess of 30 percent is not warranted. The Veteran's symptoms are not sufficiently severe to have resulted in occupational and social impairment with reduced reliability and productivity. The totality of the evidence shows that the Veteran's bipolar disorder more closely resembles the criteria for not more than an initial 30 percent evaluation. The records from this period show that the Veteran was consistently found to be alert, oriented and cooperative. His thoughts were clear and goal-oriented. There was no evidence of delusions or hallucinations. His cognitive abilities were grossly intact, to include capacities for abstraction, memory, and judgment. There was no paranoia, panic, obsesssional rituals, or hypervigilance. While he endorsed chronic passive suicidal ideation, he never reported any type of plan or intent. Overall, VA progress notes and the VA examination contain GAF scores ranging from 45 to 55, which is indicative of moderate to severe symptomatology. To the extent that the Veteran has been afforded GAF scores between 45 and 50, the Board notes that the Veteran's complaints tended to pertain to dissatisfaction with various court orders involving his parental visitation status and ability to drive, social isolation due to back pain and the location of his residence, and "boredom." The Board finds that when these scores are read in context with the findings, this evidence is insufficient to warrant an initial evaluation in excess of 30 percent. See Brambley v. Principi, 17 Vet. App. 20, 26 (2003) (although a GAF score may be indicative of a certain level of occupational impairment, it is only one factor in determining an appellant's degree of disability). Of particular note, notwithstanding the Veteran's complaints, there is no evidence to show irregular speech, difficulty in understanding complex commands, impairment of short- and long-term memory, or impaired abstract thinking. See Vazquez-Claudio v. Shinseki, 2012-7114 (Fed. Cir. Apr. 8, 2013) (38 C.F.R. § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas). The Veteran's overall psychiatric symptomatology does demonstrate that level of severity. Moreover, and of significant import, occupational and social impairment with reduced reliability and productivity was not shown. The Veteran reported in August 2011 that he enjoyed close relationships with numerous family members and that he had friend that he spoke with by phone. His ability to visit this friend was limited due to the fact that had a suspended drivers license. His communication and desire to see his children to documented throughout the records for this period. A custody dispute appears to be the only reason for him not visiting with his children with any frequency. Indeed, there is evidence that his son eventually spent a summer with him. Further, while he endorsed a volatile employment history that often ended following some sort of conflict, the Board gives particular probative value to the finding of M.C., who placed the onus of the Veteran's employment problems (unemployability) on his problem with drug and alcohol dependence. That examiner also made specific and probative findings with respect to the lack of significant limitation that the Veteran experienced in the areas of understanding and memory, sustained concentration and persistence, social interaction and memory, and adaptation. In summary, prior to January 31, 2012, there is insufficient evidence of such symptoms as flattened affect; irregular speech; difficulty in understanding complex commands; impairment of short- and long-term memory; and impaired abstract thinking, nor are the other bipolar disorder symptoms shown to have resulted in such impairment. The Board therefore finds that the Veteran's symptoms are not of such severity to approximate, or more nearly approximate, the criteria for an initial evaluation in excess of 30 percent under DC 9432 prior to January 31, 2012. See 38 C.F.R. § 4.7. 2. As of January 31, 2012 VA progress notes show that in February 2012, the Veteran complained of depression, and that he didn't want to do anything. He reported playing video games, and that he had his driver's license back. He indicated he would be able to visit his friends in another town. He was sleeping well, 8 to 10 hours per day, and took a nap. He had gained five pounds this year. A May 2012 report shows that the Veteran complained of poor energy and concentration. He reported that he got along with his mother and his son. He was sleeping well, 8 to 10 hours per day, and took a nap for about two hours. He had recently visited his friend in another town, while looking for a place to live. He was warned to hydrate while fishing or doing anything outdoors, due to his use of lithium. The GAF scores in these reports were both 52. A VA examination report, dated in January 2012, indicates that the Veteran was examined on January 31, 2012. This report shows that the examiner stated that the Veteran's claims file had been reviewed. The Veteran complained of symptoms that included depression, suicidal thoughts, poor concentration, lack of energy, appetite problems, nightmares once or twice a month, panic, and excessive day dreaming. He complained that he was depressed "a lot," and that when he was depressed, "I don't feel like doing anything." He complained of suicidal thoughts, without plan or intent. He complained of manic episodes two to three times per year, in which he had increased energy, cleaned his house, and visited friends. He denied having any manic episodes since July 2011. He was typically able to sleep through the night. The Veteran reported that he became nervous, especially around policemen. He did not go shopping because he did not like being around people, instead, he shopped at his niece's corner grocery store. He avoided restaurants. He had problems concentrating; he forgot what he said to his mother five minutes before, and found it hard to watch an entire movie. He was able to concentrate well enough to read, watch television, and drive a car. He had no desire to eat, and typically ate when he had to. The Veteran stated that he had not had any contact with his children in three years, and he had not been in any relationships since that time. He lost his driver's license in 2007 after a DWI (driving while intoxicated), and he regained his license in December 2011. He saw a nurse practitioner for medication once every three months. He had not been hospitalized since January 2008. He lived by himself, and occupied himself by watching television. He did his own housework, but not yardwork. He socialized with his nephew about three times per week. He had no other friends or any other social activities. On examination, the Veteran was well-nourished, with appropriate grooming and hygiene. Speech was clear with a good ability to express himself. Affect was nervous, and overall mood seemed unstable. Orientation was appropriate. Thinking was spontaneous, logical and productive. Thought content was notable for a preoccupation with a sense of isolation. Relationships with others were poor with a low frequency of contact and a preference for being alone except for his nephew. Concentration was appropriate. Reasoning skills indicated the capacity for abstract thinking, with an estimated intellectual functioning level in the average to low-average range. Judgment was diminished by depression leading to isolation. The examiner concluded that the Veteran continued to have problems with bipolar disorder, with periods of depression manifested by sadness, guilt, suicidal ideation, diminished pleasure, appetite disturbance, low energy, and nightmares. He also has periods of mania, characterized by increased energy and social activities. Intensity of his problems were moderate to severe, with impaired social relationships, occupational functioning, judgment, mood, and range of activities. There were deficiencies in most areas of occupational and social functioning because of suicidal thoughts, continuous depression or mania, difficultly adapting to stressful circumstances, and an inability to establish or maintain effective relationships. He was unemployable due to the effect of his bipolar disorder on his concentration, thought organization, social comfort, emotional stability, frustration tolerance, and anger control. He was in need of medication and counseling, and the likelihood of significant change was low. He was competent to manage his own affairs. The Axis I diagnosis was bipolar disorder, most recent episode depressed, moderate. A GAF score of 49 was assigned due to low social tolerance, suicidal thoughts, no friends, and few activities. The Board finds that as of January 31, 2012, an evaluation in excess of 50 percent is not warranted. The Veteran has complained of symptoms such as suicidal thoughts without plan or intent, depression, and problems concentrating. However, when he was examined in January 2012, the examiner specifically determined that the Veteran's thinking was spontaneous, logical and productive, that his concentration was appropriate, and his reasoning skills indicated the capacity for abstract thinking, with an estimated intellectual functioning level in the average to low-average range. He also he denied having any manic episodes since July 2011. Indeed, on a rather consistent basis, he is noted to be able to concentrate well enough to read, watch television, and drive a car, to include traveling to see a friend. Finally, while not outcome determinative, there is no evidence to show obsessional rituals, speech intermittently illogical, obscure, or irrelevant, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control, spatial disorientation; neglect of personal appearance and hygiene. 38 C.F.R. § 4.130; Vazquez-Claudio. Due consideration has been to the GAF score of 49 that was assigned on VA examination, which indicates serious symptoms. However, with respect to the Axis I diagnosis (bipolar disorder), the Veteran's symptoms as "moderate." Furthermore, the VA progress notes contain two subsequently-dated GAF scores of 52, which indicate no more than moderate symptomatology, and the scores of 52 are consistent with those in the VA progress notes dated throughout 2011. With regard to the findings, to include findings related to the Veteran's speech, thought processes, insight, and judgment, they are not shown to be sufficiently severe to warrant an increased evaluation. The Veteran receives treatment once every three months, which also suggests a lower level of severity of symptoms. The Board also notes that the history and symptomatology reported to the VA examiner is inconsistent with remaining record. For example, the Veteran told the VA examiner in 2012 that he had not had contact with his children in three years. However, as detailed above, he reported seven months earlier (June 2011) that his son was living with him for the summer. Similarly, while he told the examiner that his social interaction was limited to his nephew, he has consistently reported having a good relationship with his mother and great nephews as well. He also described talking with a friend frequently and recently visiting that friend after he had his driver's license reinstated. Such suggests to the Board that the Veteran was withholding or misreporting information to the examiner for gainful purpose. The examination findings with respect to the level/severity of the Veteran's social impairment therefore carry limited probative value. Similarly, although the examiner indicated that the Veteran was unemployable, the evidence shows that the Veteran stopped working after two years at his most recent job due to a December 2007 MVA which caused neck and lumbar spine fractures. The SSA's findings have previously been discussed; they show that he was found to be disabled due to both spinal fractures and psychiatric symptoms. The VA examiner in December 2008 made a similar observation. Indeed, at the time of the December 2008 examination, the Veteran attributed losing his job to the MVA. There was also no discussion of the effect the Veteran's drug and alcohol problem has on his employability, which was highlighted by the SSA examiner. There again appears to be evidence that the Veteran did not fully disclose his health, occupational, and psychiatric history to the 2012 examiner. In summary, the Veteran's symptoms are not shown to be sufficiently severe to have resulted in occupational and social impairment, with deficiencies in most areas. The preponderance of the evidence shows that the Veteran's bipolar disorder more closely resembles the criteria for not more than the presently assigned 50 percent rating. The Board therefore finds that the Veteran's symptoms are not of such severity to approximate, or more nearly approximate, the criteria for an evaluation in excess of 50 percent under DC 9432 as of January 31, 2012. See 38 C.F.R. § 4.7. C. Conclusion In reaching this decision, the Board has considered the written testimony of the Veteran. The Board points out that, although a lay person is competent to testify only as to observable symptoms, see Falzone v. Brown, 8 Vet. App. 398, 403 (1995), a layperson is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In this case, the Board has determined that the medical evidence is more probative of the issue, and that it outweighs the lay statements. Accordingly, the Veteran's claim must be denied. Consideration has been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2011); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. An evaluation in excess of 30/50 percent is provided for certain manifestations of the service-connected bipolar disorder disability, but the evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability, as the criteria assess the level of occupational and social impairment attributable to the Veteran's symptoms, and the level of functioning. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extra-schedular rating is not warranted. In deciding the Veteran's claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119, 126 (1999), and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that the Veteran's evaluation should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disability on appeal such that an increased initial evaluation is warranted. As a final matter, the Veteran has filed a claim for TDIU. See Veteran's VA Form 21-8940, received in April 2012. A review of the RO's March 2012 rating decision shows that it indicated that the TDIU issue had been deferred, and records associated with the Veteran's Virtual VA file (VVA) indicate was pending additional development. In reaching this decision, the Board considered the benefit- of-the-doubt rule; however, as the preponderance of the evidence is against the appellant's claim, such rule is not for application. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The notification obligations in this case were accomplished by way of letters from the RO to the Veteran dated in January 2008 (service connection), and November 2010 (increased initial evaluation). Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that this appeal involves a claim for an initial increased evaluation for bipolar disorder. Thus, although a January 2008 VCAA notice was issued for the claim for service connection for the Veteran's bipolar disorder, and although another VCAA notice was provided to the Veteran in November 2010, where, as here, service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled; no additional § 5103(a) notice is required. Dingess, 19 Vet. App. at 491. The RO has provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA and non-VA medical records, and SSA records. For the disability on appeal, the Veteran has been afforded two examinations. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examinations were adequate, as they were predicated on a full reading of the Veteran's medical records in the claims file. All of the pertinent evidence of record was considered, to include the statements/history/complaints of the Veteran. The criteria necessary to rate the disability were addressed. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER An increased initial evaluation for service-connected bipolar disorder, evaluated as 30 percent disabling prior to January 31, 2012, and as 50 percent disabling thereafter, is denied. REMAND With regard to the Veteran's claim for TDIU, in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (per curiam) the Court stated that when the issue of entitlement to a TDIU rating for a particular service-connected disability or disabilities is raised in connection with a claim for an increased rating for such disability or disabilities, the Board has jurisdiction to consider that issue. The Court indicated that if the Board determines that further action by the RO is necessary with respect to the issue, the Board should remand that issue. A review of the RO's March 2012 rating decision shows that it indicated that the TDIU issue had been deferred, and there are indications in the Veteran's Virtual VA file (VVA) that additional development (i.e., obtaining an examination and opinion) was to be undertaken in July 2012. However, it does not appear that any additional development was ever completed. A remand is therefore warranted in order that an opinion may be obtained that is based on a review of the entire claims file, and which fully discusses the impact of the Veteran's service-connected disability on his employability. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Accordingly, the Board has no alternative but to defer further appellate consideration and this case is REMANDED to the RO via the Appeals Management Center in Washington DC for the following actions: 1. The RO/AMC should arrange for a medical opinion by a physician. The physician must be provided with the Veteran's C-file in association with the opinion, and he/she should indicate that the Veteran's C-file has been reviewed. Provide the physician with a list of the Veteran's service-connected disabilities, and their assigned evaluations. The physician is requested to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disability would prevent the Veteran from securing and following a substantially gainful occupation. The physician should offer a rationale for any conclusion in a legible report. The Veteran may be examined if necessary. 2. The RO should then adjudicate the TIDU issue. If the determination remains unfavorable to the appellant, he should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered. The appellant should be given an opportunity to respond to the SSOC. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs