Citation Nr: 1320644 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-08 086 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUES 1. Entitlement to a rating in excess of 50 percent for bipolar disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION The Veteran represented by: Winona W. Zimberlin, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to August 1979. This appeal to the Board of Veterans' Appeals (Board) arose from March 2008 and September 2009 rating decisions. With regard to the claim for a rating in excess of 50 percent for bipolar disorder, the Veteran filed a notice of disagreement (NOD) in April 2008, and the RO issued a statement of the case (SOC) in August 2008. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in November 2008. With regard to the claim for a TDIU, the Veteran filed a notice of disagreement (NOD) in September 2009, and the RO issued a statement of the case (SOC) in June 2010. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in July 2010. The appeal also initially included a claim of clear and unmistakable error (CUE) in a December 2, 1998, rating decision in which the RO assigned an initial 30 percent rating for bipolar disorder (for which the Veteran also perfected an appeal). In November 2011, the Board denied the claim of CUE. At that time, the Board remanded the remaining claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO/AMC continued to deny the claim(s) (as reflected in an August 2012 supplemental SOC (SSOC)) and returned these matters to the Board for further appellate consideration. In June 2011, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Board does note that in September 2012 the Veteran's representative requested a copy of the July 2012 VA examination report,, and an October 2012 letter in the Virtual VA paperless claims processing system reveals that it was sent to his representative on that date. In April 2013, the Veteran's representative submitted three pieces of additional evidence (an April 2013 private TDIU opinion, the curriculum vitae of the April 2013 private examiner, and the Veteran's 1040 U.S. Individual Income Tax Return for 2012). However, only the Veteran's 1040 U.S. Individual Income Tax Return for 2012 was submitted with a waiver of initial RO consideration of the evidence.al jurisdiction (AOJ). The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.1304 (2012). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 2. Pertinent to the current claim for increase, the Veteran's bipolar disorder has been manifested primarily by visual hallucinations, speech difficulties, and irritability; collectively, these symptoms are indicative of no more occupational and social impairment with reduced reliability and productivity. 3. The schedular criteria are adequate to rate the disability under consideration at all pertinent points. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for bipolar disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130 Diagnostic Code 9432 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (here, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction, in this case, the RO/AMC. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In January 2008 and December 2008 pre-rating letters, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for a higher rating, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA; these letters and an additional June 2008 letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records, and the reports of the February 2008, July 2009, and April 2012 VA examinations. Also of record and considered in connection with the appeal is the transcript of the Veteran's June 2011 Board hearing, along with various written statements provided by the Veteran, and by his representative on his behalf. The Board finds that no additional RO action to further develop the record in connection with the claims, prior to appellate consideration, is required. The Board notes that, in April 2013, the Veteran's attorney asserted that the July 2012 VA examination was not adequate because while the VA examiner reviewed the private medical opinions he did not discuss them, he also did not review every statement that the Veteran made (specifically, the Veteran's testimony), and that he did not specifically discuss one year prior to the date of claim. The Board finds that the July 2012 VA examination is adequate in order to evaluate the Veteran's service-connected bipolar disorder as it consisted of clinical interviews, review of the medical history, and comprehensive mental status examinations that include findings that correlate to the relevant rating criteria. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, the examination is adequate to adjudicate the Veteran's claim and no further examination is necessary. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claim the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided at this juncture. See Mayfield, 20 Vet. App. at 543/ Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and 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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). The RO assigned the rating for the Veteran's bipolar disorder under Diagnostic Code 9432. However, the actual criteria for rating psychiatric disabilities other than eating disorders are set forth in a General Rating Formula. See 38 C.F.R. § 4.130. To warrant a 50 percent rating under the formula. the evidence must show 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; and difficulty in establishing and maintaining effective work and social relationships. To warrant the next higher (70 percent) rating, the evidence must show occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Psychiatric examinations frequently include assignment of a GAF score. According to the DSM-IV, GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness". There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Considering the pertinent evidence in light of the above, the Board finds that a rating greater than 50 percent for the Veteran's bipolar disorder is not warranted at any point pertinent to this appeal.. The Veteran was afforded a VA examination in February 2008. It was noted that the Veteran reported a history of being falsely accused of a crime and imprisoned; because of this he was emotionally numb, depressed, had significant feelings of guilt and shame, and thoughts of suicide. He reported that he used art as a way to deal with his issues. He reported irritability and that he saw flashes of light that he believed were angels; he speaks to them and listens for answers. He was also highly spiritually involved and went to Indian sweat lodges. The VA examiner noted the Veteran's symptoms were highly similar as in 2003 and 2004. The Veteran reported a concentration problem but performed work well. He had some friends and socialized with other at al-anon meetings and had no problems with activities of daily living. During his examination, his speech was somewhat pressured and he was difficult to interrupt; however, his affect was good, his thought process was logical though circumstantial, and his insight and judgment were fair. The Veteran reported a depressed mood, numbness and infrequent, passive suicidal ideation. During a July 2009 VA examination, the Veteran reported that, due to his imprisonment, he developed feelings of paranoia and had problems with depression, guilt, shame, motivation, energy, thoughts of suicide, dreams of being back in jail, and irritability. He also reported some visual hallucinations. It was noted that the Veteran's symptoms were quiet similar to 2004 and to his last VA examination in February 2008. The Veteran stated that he believed he was 70 percent disabled but not 100 percent disabled because he needed to work; he was currently working 20-30 hours a week with his own painting business. The Veteran provided a vague description in terms of variable and "erratic" mood patterns. He spent his free time working on his art and poetry. Through his art work and prayer, he has been able to cope with such problems as "life being painful" and sometimes felt euphoria when he was creating his art work. He described continued irritability and stated that he was frequently argumentative with others; he often states what is on his mind and is not very diplomatic. The examiner noted that his sleep is variable, and it appeared that the Veteran had little structure in his daily activities based upon his work and involvement in his art work; he remained sober and reported no inappropriate behaviors. He had some friends that he spoke to on occasion. He described no clear difficulties with the activities of daily living. During the examination, the Veteran's speech was at a rapid pace and slightly pressured. His affect was within a good range as he demonstrated some periods with good humor. He presented with some hyper-religiosity and visual hallucinations of seeing bright lights which he believed to be angels; it was not distressing to him. His thought process was at times tangential and his insight and judgment were fair. In December 2009, a private medical provider reviewed the Veteran's claims file but did not examine the Veteran in order to render an opinion; he did list the Veteran's medical evidence in detail. He stated that the Veteran's reports from several of his providers since 1995 alone are suggestive of very severe impairment of functioning due to his psychiatric disorder and when taking into account statements from the Veteran's sister the "picture of a completely disabled man emerges." He stated that there is nothing other than the Veteran's bipolar disorder and paranoid schizophrenia to account for periods of unemployment from 1995 to present. He also stated that he believed he was more than 50 percent disabled because of his psychiatric disorder; he believes that he is 100 percent disabled and individually unemployable because of it. The Veteran was afforded a VA examination in July 2012; the only Axis I diagnosis then rendered was bipolar disorder. The VA examiner stated that the Veteran's bipolar disorder was manifested by occupational and social impairment with reduced reliability and productivity. The Veteran continued to own a house painting business and worked 15-20 hours per week. His schedule was erratic in that he may work several hours one day and then not go to a site the next day but he did have a few men working under him, mainly in the summer, which allowed him to come and go more easily. In 2010 he had a panic attack on the job and was unaware of the possible trigger; he thought it was stress so he reduced his work load and constantly monitors his work to prevent himself from getting overwhelmed or overtired. The VA examiner stated that the Veteran was able to maintain part-time employment in part due to the flexibility associated with owning his own business; if needed be he can leave early or go late and if he has problems he can delegate to his employees. It was noted that because of his limitations/symptoms he was unlikely to work full time or in another capacity. The Veteran reported a close relationship with his sister but did not report a close relationship with others. He went to al-anon meetings and wanted to feel part of a community. He reported times of feeling hopeless and fleeting thoughts of suicide but denied any intent or current plan. He denied sleep difficulties and normally slept 5 hours a night with a nap during the day. He denied current symptoms of mania but reported brief episodes, especially when he is painting, of felling euphoric, grandiose, and invincible with increased energy. During the interview his speech was slightly pressured but did not appear indicative of mania. He reported seeing light flashes that he continued to believe were spirits; he sometimes thinks that the vacuum cleaner is sending him signals or that someone may come out of the television and is trying to communicate with him. The VA examiner stated that these symptoms appeared to indicate psychotic symptoms that ebbed and flowed and did not impair the Veteran's functioning. The Veteran's symptoms were noted to be depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; mild memory loss, such as forgetting names, directions, or recent events; circumstantial, circumlocutory or stereotyped speech; disturbances of motivation and mood; difficulty in establishing and maintain effective work and social relationships; difficulty in adapting to stressful circumstances, including work or work like setting; suicidal ideation; and persistent delusions or hallucinations. The Veteran's affect was initially irritable and guarded but as the examination progressed he was expansive but appropriate. Thought process was mostly logical but often tangential; he required significant encouragement and redirection to remain focused. His speech was remarkable for feeling that he was set up in the unlawful arrest; he currently denied suicidal ideation, homicidal ideation, and mania. At the interview he did not endorse psychotic symptoms but did report symptoms within the last month. After examining the Veteran's records and VA examinations, the examiner noted there is relative consistency in the Veteran's reported symptoms and functioning and that it is more likely than not that the Veteran's symptoms have not significantly worsened since 2007, especially in regards to his symptoms impact on his functioning; while limited it has not changed. He further stated that it was his opinion that the Veteran is more likely than not able to continue working in his current capacity; his capacity allows the Veteran to leave when he is overwhelmed and avoid interpersonal disputes if necessary. Based on his history, it is unlikely that he would be able to maintain full time work in a significantly different capacity. The VA examiner opined that the Veteran is psychologically fragile and the unlawful arrest/conviction has been overwhelming. Overall, he is isolated in that he does not report close emotional relationships but receives a sense of community and purpose from the treatment courses and support groups he participates in. If any of these factors such as his ability to paint was altered, it is highly likely his ability to be employed even part time would be compromised. Collectively, the aforementioned medical evidence reflects that, pertinent to the current claim on appeal the Veteran's bipolar disorder has been manifested by irritability; visual hallucinations; and speech problems. Notably, the Veteran's symptoms of paranoia depression, guilt, shame, thoughts of suicide, irritability, and problems with motivation and energy have been attributed by the VA examiners and the Veteran himself to his false arrest and imprisonment, for which he was later exonerated.. It has been noted throughout his VA examinations that this post-service incident accounted for a lot of the Veteran's psychiatric symptoms. The Board finds that even if those symptoms are considered, the Veteran's bipolar disorder still does not warrant a higher rating. The Veteran owns his own house painting business and employs people to work for him, he has friends and seeks community support, and has a relationship with his sister; therefore, there are is no evidence of an inability to establish and maintain effective relationships. While the Veteran reported suicidal ideation it was noted to be passive with no intent or plan. As noted above ,the Veteran reported no problems with his activities of daily living except for sometimes a slightly erratic schedule thus, the Board finds that there is no evidence of obsessional rituals which interfere with routine activities; 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); or difficulty in adapting to stressful circumstances (including work or a work like setting). Moreover, the most recent VA examiner in July 2012 specifically stated that the Veteran's bipolar disorder results in manifested by occupational and social impairment with reduced reliability and productivity. This is a level of occupational and social impairment consistent with the 50 percent rating currently assigned. Significantly, at no point during the period in question has the Veteran's overall symptomatology met the criteria for a rating in excess of 50 percent. In this regard, the medical evidence does not show the Veteran to have symptoms manifested by occupational and social impairment with reduced reliability and productivity or other symptoms that are characteristic of a 70 percent rating. In addition to not meeting the criteria for a higher initial rating of 70 percent, the Board finds that the Veteran does not warrant a higher rating of 100 percent since there is no evidence of total occupational and social impairment; there is no evidence of gross impairment to thought processes and communication, persistent delusions or hallucinations or grossly inappropriate behavior. Nor is there a persistent danger of the Veteran hurting himself or others, a disorientation to time or place, memory loss or inability to perform activities of daily living. The Board notes that the Veteran does have some visual hallucinations of angels; however, he describes them as just flashes and not as persistent and he was described as very religious in nature and practice. The Board further finds that the GAF scores assigned of 54 in February 2008, 55 in July 2009, and 53 in July 2012 do not provide a basis for assigning a rating in excess of 50 percent for the Veteran's bipolar disorder. According GAF scores between 51 and 60 reflect moderate symptoms (e.g., flat affect, circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). The Board finds that the Veteran's GAF scores are consistent with no more than the assigned 50 percent rating. In fact, the noted scores seem to reflect even less impairment contemplated in the 50 percent rating. Clearly, then, none of the noted scores provides a basis for an even higher rating. The Board notes that, in April 2013 the Veteran's representative stated that the decrease in the Veteran's GAF score was evidence of an increase in symptomatology. However, the Board finds that the Veteran's GAF scores are within the same range that reflect moderate symptoms/impairment. Based on the foregoing, the Board finds that that, pertinent to the current claim for increase, the Veteran's psychiatric symptomatology has more nearly approximated the criteria for the 50 percent rather than the 70 percent rating. See 38 C.F.R. § 4.7. As the criteria for the next higher, 70 percent, rating are not met, it logically follows that the criteria for the maximum, 100 percent rating likewise are not met. The above determinations are based upon consideration of applicable provisions of VA's rating schedule. Additionally, the Board finds that at no point pertinent to this appeal has the disability been shown to be so exceptional or unusual to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disabilities with the established criteria provided in the rating schedule for the disabilities. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned ratings are therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. The Board finds that the applicable schedular criteria are adequate to rate the disability under consideration at all points pertinent to this appeal. As discussed above, the applicable the rating criteria contemplates the type of symptoms and level of impairment associated with the Veteran's disability Veteran has reported that he owns his own house painting business and has employees. At the July 2012 VA examination the VA examiner stated that the Veteran could delegate to his employees if he felt an increase in his symptomatology and the Veteran reported that he monitors his stress and work after one panic attack in 2010. In addition, the Veteran has repeatedly stated that he has no problems with his activities of daily living. The Board this concludes that the Veteran's psychiatric symptoms and impairment are contemplated in the rating criteria discussed above. As the rating criteria are therefore adequate to evaluate the Veteran's disability, and referral for consideration of an extra-schedular rating is not warranted. Thus, the Board finds that the See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, there is no basis for staged ratings, pursuant to Hart, and the claim for a rating greater than 50 percent for bipolar disorder must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 50 percent for bipolar disorder is denied. REMAND Unfortunately the Board finds that further RO action on the claim remaining on appeal is warranted, even though such will, regrettably, further delay an appellate decision on the matter. In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for TDIU provides both objective and subjective criteria. Hatlestad, supra; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria provide for a total rating when there is a single disability or a combination of disabilities that result in a 100 percent schedular evaluation. Subjective criteria provide for a TDIU when, due to service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. For the purposes of this analysis, the following will be considered a single disability: disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as the orthopedic system. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In this case, the Veteran has been granted service connection only for bipolar disorder , for which a 50 percent disability rating has been assigned. As such, the Veteran does not meet the minimum schedular criteria for TDIU under 38 C.F.R. § 4.16(a). However, even when the percentage requirements are not met, entitlement to a total rating, on an extra-schedular basis, may nonetheless be granted, in exceptional cases, when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. §§ 3.321(b), 4.16(b). The Veteran currently owns a house painting business and oversees employees; it is noted in the claims file that he makes between $15,000 and $20,000 a year from it and he also reported selling some of his art work. In April 2013, the Veteran's attorney asserted that the Veteran's level of income was less than this amount. The Veteran reported that he could delegate to his employees if need be. In December 2009m a private examiner, after reviewing the Veteran's claims file but not examining the Veteran, found the Veteran to be unemployable. The July 2012 VA examiner stated that the Veteran was able to maintain his employment due to the flexibility associated with owning his own business and can delegate to his employees. The Board notes that the July 2012 VA examiner also stated that because of the Veteran's limitations/symptoms he is unlikely to work full time or in another capacity. In April 2013, the Veteran's representative submitted additional evidence, specifically an April 2013 private TDIU opinion and the curriculum vitae of the April 2013 private examiner; however, there is no waiver of initial RO consideration of the evidence. See 38 C.F.R. § 20.1304 (2012). The agency of original jurisdiction-here, the RO-is required to furnish a supplemental statement of the case (SSOC) when additional relevant evidence is received after the most recent SSOC has been issued and before the appeal is certified to the Board and the appellate record is transferred to the Board. See 38 C.F.R. § 19.31(b). The requirements of this regulation have not been met. Thus, the Board finds that the issue on appeal must be remanded in order for the RO to review the evidence and issue an SSOC. In addition, the Board finds that the Veteran should be afforded a VA examination to determine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that-without regard to the Veteran's age or impairment from any nonservice-connected disability(ies)-the Veteran's service-connected disability, render him unable to obtain or retain substantially gainful employment. The Veteran is hereby advised that failure to report to the scheduled examination, without good cause, shall result in denial of the claim for a TDIU due to bipolar disorder (which is considered a claim for increase). See 38 C.F.R. § 3.655(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to be afforded an appropriate VA examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. The claims file currently contains records from the Danbury Community Based Outpatient Clinic (CBOC). The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the above-noted facility all outstanding records of VA treatment and/or evaluation of the Veteran. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the appellant another opportunity to present information and/or evidence pertinent to the claim remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's adjudication of the claim should include consideration of all additional evidence added to the record since the RO's last adjudication of the claim. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain any outstanding records of evaluation and/or treatment of the Veteran from Danbury CBOC. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim remaining on appeal that is not currently of record. Clearly explain to the Veteran that he had a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. Arrange for the Veteran to undergo mental disorders examination, by a psychiatrist or psychologist, to obtain an opinion addressing his employability. The entire claims file, to include a complete copy of THIS REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should review the claims file, to include the prior examination report and the private opinions. The physician should fully describe the functional effects of the Veteran's bipolar disorder on his ability to perform the mental acts required for employment. Then, the examiner should opine as whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that-without regard to the Veteran's age or impairment from any nonservice-connected disability(ies)-the Veteran's service-connected disability, render him unable to obtain or retain substantially gainful employment. The physician should set forth all examination findings (if any), along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim for TDIU. If the Veteran fails, without good cause, to report to the examination scheduled, in adjudicating the claim for a TDIU, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate the claim in light of all pertinent evidence (to particularly include all that added to the record since the last adjudication of the claim) and legal authority. 8. If the benefit sought on appeal remains denied, furnish to the Veteran and his attorney an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims 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 Supp. 2012). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs