Citation Nr: 1330149 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 09-31 390 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a higher initial rating for bipolar disorder with anxiety disorder, currently rated as 30 percent disabling prior to March 21, 2007 and 50 percent disabling thereafter. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran, D.W. ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran had active duty service from March 1997 to May 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Denver, Colorado, which assigned the current initial ratings. The Veteran was afforded an August 2011 hearing before the undersigned. A hearing transcript is associated with claims folder. The Veteran submitted additional evidence following the last adjudication by the agency of original jurisdiction (AOJ) in March 2010. He submitted a waiver of AOJ review and the Board may consider the additional evidence in the first instance. 38 C.F.R. § 20.1304(c). A review of the Virtual VA paperless claims processing system does not show any pertinent records. The issue of TDIU is raised by the record as it shows that the Veteran has intermittent employment due to his psychiatric symptoms. Roberson v. Principi, 251 F.3d 1378, 1384 (2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). It is included as part of the appeal. It 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. FINDING OF FACT Throughout the appeal period, the Veteran's service connected bipolar disorder has been productive of occupational and social impairment which more nearly approximates deficiencies in the areas of work, family relations and mood, but is not productive of total social and occupational impairment. CONCLUSION OF LAW The criteria for an initial 70 percent rating for bipolar disorder have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1- 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9432 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice 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 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the appeal arises from disagreement with the initial rating following the grant of service connection. The courts have held that once service connection is granted, the claim is substantiated. Additional VCAA notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). Nevertheless, the record indicates that the Veteran was provided with adequate VCAA notice in March 2007. Specifically, the RO notified the Veteran of information and evidence necessary to substantiate his service connection claim, including assignment of a disability rating and effective date. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. The duty to notify has been met. The Board also finds that VA has complied with all assistance provisions of VCAA. The evidence of record contains the Veteran's service treatment records and post-service treatment records. There is otherwise no indication of relevant, outstanding records which would support the Veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran underwent a VA psychiatric examination in July 2007. At the August 2011 hearing, the Veteran described his symptoms as more or less static. Given the Veteran's reports and favorable action taken in the instant decision, a remand to obtain another examination report would not be of further assistance to the Veteran. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2012) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam); See also 77 Fed. Reg. 23128-01 (April 18, 2012). At the August 2011 hearing, the undersigned identified the issue on appeal. The Veteran provided testimony as to all treatment received for his service connected bipolar disorder and, thereby, demonstrated actual knowledge of the ability to submit additional relevant evidence. In fact, he submitted additional evidence at the hearing. Based in part upon his hearing testimony, the Board is taking favorable rating action in the instant decision. The duties imposed by Bryant are met. For the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue on appeal. Analysis The Veteran contends that his bipolar disorder warrants an initial rating in excess of the currently assigned 30 percent prior to March 21, 2007 and 50 percent thereafter. As explained below, his bipolar symptoms are shown to be productive of deficiencies in most areas of social and occupational function. Resolving all reasonable doubt in the Veteran's favor, the Board will grant an initial rating 70 percent. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). A Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Because the Veteran is challenging the initially assigned disability rating, it has been in continuous appellate status since the original assignment of service connection. The evidence to be considered includes all evidence proffered in support of the original claim. Fenderson v. West, 12 Vet. App. 119 (1999). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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 a rating 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. 38 C.F.R. § 4.126(a). While VA adjudicators will consider the extent of social impairment, they shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). See 38 C.F.R. §§ 4.125, 4.130. Bipolar disorder is rated under 38 C.F.R. § 4.130, DC 9432, according to the General Rating Formula for Mental Disorders. Under the General Rating Formula, a 50 percent disability rating is warranted when there is 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. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. Lastly, a 100 percent evaluation 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms under the rating criteria are intended to serve as examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). The Federal Circuit has also recently stated that evaluation under § 4.130 is "symptom-driven" and that "a veteran may only qualify for a given disability rating under [this criteria] by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that § 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." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). As relevant, the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). GAF scores ranging between 61 and 70 are assigned when there are some mild symptoms (e.g., depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but when the individual is functioning pretty well and has some meaningful interpersonal relationships. A GAF score of 51-60 rating indicates 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). 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). While the Rating Schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130 (2012); Id. When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran had a May 2003 VA psychiatric examination. The examiner reviewed the claims folder and recited the pertinent history. He was recently separated from his wife. He recently moved back to Colorado and was looking for work. He had difficulties managing money. He reported having unusual sleep patterns where he would stay awake for up to three days then sleep for 14 or 15 hours. He had great difficulty concentrating and described a "racing" thought process. He had periods of mania. Mental status examination showed the Veteran to be fully oriented without any overt cognitive impairment. He had difficulties with alcohol abuse, but denied any other substance abuse. The examiner remarked that the Veteran was not currently suicidal and does not appear to have a history of hallucinations or delusions. He concluded that the Veteran's depression and personality disorder observed in service were symptoms of bipolar disorder. He also believed the Veteran's alcohol abuse was secondary to bipolar disorder. He described the overall bipolar impairment as "mild." He assessed the Veteran as having a personality disorder which aggravates the other conditions to where he has moderate social impairment. The examiner diagnosed bipolar II disorder and secondary alcohol abuse. He listed an Axis II diagnosis of personality disorder, not otherwise specified. He provided the following GAFs: bipolar disorder, 65; alcohol abuse, 61; and an overall assessment of 58. VA treatment records from January 2007 show that the Veteran had a medication management treatment. The examiner assessed him as stable and noted that he was trying to go back to school. A GAF of 50 was listed. In March 2007, the Veteran reported that his bipolar disorder had worsened. He blamed it for the dissolution of his family. He reported being homeless due to it. The Veteran had a VA medication management visit in June 2007. He continued to have great difficulty with his concentration and apathy. He was unsure if his condition was improving. A medication adjustment was made. The examiner provided a GAF of 45. The Veteran had a July 2007 VA examination. He reported that he was currently separated from his wife and did not have custody of his two children. He had an intermittent employment history. He would work for three or four months, but then be fired or leave due to irritability and concentration problems. He was currently unemployed. He attempted to return to school, but could not adequately complete coursework assignments and dropped out. Currently, he had a depressed mood and isolated himself at home. He continued to have sleep difficulties where he would stay awake for two days at a time. He continued to have mania symptoms resulting in indiscriminate spending and sexual activity, racing thoughts, irritability, and decreased concentration. The examiner noted unusual perceptional experiences that were short of overt auditory or visual hallucinations. The Veteran denied any active suicidal or homicidal ideations. The Veteran currently lived alone and was generally able to perform activities of daily living. However, he reported that he could be "very isolative" and had periods of agoraphobia. He had a few friends. He often browsed jobs on the internet, but had difficulty concentrating and following through on applications. Overall, he continued to have great difficulty stabilizing his mood and functioning on his psychotropic medications. He believed the medications were of limited benefit. Mental status examination showed the Veteran to have adequate hygiene and appearance. However, his overall affect suggested agitation, depression, and anxiety. His speech was articulate. Thought processes were logical and goal directed. His motor function and memory were grossly intact. The examiner summarized that the Veteran had substantial problems following service. He had deterioration in his functioning due to marital and family problems, intermittent employment, ongoing mental health difficulties, and financial issues. Psychotropic medication only provided limited benefits. He continued to have both depression and hypomania symptoms, in addition to generalized anxiety. He did not have any current inappropriate behavior, but acknowledged a prior instance of domestic violence. He continued moderate alcohol use and denied any current substance abuse problems. He affirmed that his mood symptoms were continuous without any remissions over the past year. He denied any recent trauma, but acknowledged poor functioning after military service, stating that he "lost everything" including his jobs, family, and home. He had a worsening of function despite medical intervention. The examiner added that the Veteran may need assistance in managing his financial affairs due to hypomania periods. He listed the following Axis I diagnoses: bipolar disorder with depressive and hypomanic, possibly manic symptoms; anxiety disorder, with generalized anxiety and agoraphobia; and alcohol abuse. He also noted an Axis II diagnosis of an unspecified personality disorder. He assessed a GAF of 52 over the past three to six months. In October 2007, the Veteran provided his employment history. He had intermittently worked at various jobs with none lasting for more than a few months. In November 2007, his former employer confirmed that he worked from January to April 2007. He resigned his position. The Veteran disputed the former employer's report. He stated that the employer did not make any accommodations (extra restroom breaks, etc) for the side effects of his medications. He brought physician notes to his supervisor's attention in support his accommodation requests. He resigned because the employer was forcing him to be evaluated by their physician. He often missed work due to his medication side effects of fatigue and inability to concentrate. In March 2008, the Veteran asserts that his service connected bipolar disorder warranted a higher rating and a TDIU award. He believed he met the criteria for a 70 percent rating. Contemporaneous VA treatment records showed that the Veteran continued to have significant struggles with basic social and occupational functions. A GAF of 45 was listed. The Veteran's roommate submitted a September 2008 statement. He knew the Veteran for a long time, but did not realize the extent of the Veteran's psychiatric problems until they lived together. He described the Veteran as irritable with constant mood swings, irregular sleep patterns, isolative behaviors, and agoraphobic on a regular basis. He and the Veteran's mother had to monitor the Veteran. The Veteran filed his notice of disagreement in September 2008 and contended that his bipolar disorder warranted a 70 percent disability rating. In August 2009, the Veteran again asserted that he met the criteria for a 70 percent rating. He cited his continued employment difficulties due to his psychiatric problems. His psychotropic medication caused side effects that interfered with his occupational performance. He was unemployed, divorced, and had an estranged relationship with his two daughters. VA September 2009 treatment records show that the Veteran believed his current lithium dose did not fully control his moods and reported nausea side effects. The examiner ordered a new medication and warned about its potential side effects. He continued to list GAF as 45. In August 2011, the Veteran's mother submitted the Court order giving her guardianship over the Veteran's two children. At the August 2011 hearing, the Veteran's mother recalled that as early as fall 2002 she observed the Veteran to have alternating mania and depressive states. Upon further research, she suspected that the Veteran might have bipolar disorder. Her husband forced the Veteran out of their house due to his irritable behavior. Due to his employment difficulties, he was homeless for several months. The Veteran stated that he initially declined treatment because he was informed by a military physician that he had an untreatable personality disorder. His mother recalled him having significant side effects when he was initially placed on lithium. On several occasions, the Veteran's mother took the Veteran to the VA clinic when he appeared to have reached a crisis state. Currently, if she did not hear from him every few days, she would start to panic over his safety. The Veteran denied any overt suicidal ideation, but noted that others worried about his potential for violence due to his extremely irritable moods. He reported that the psychotropic medication had bad side effects. He continued to have frequent panic attacks and almost always had one when he was in public. Although he was currently employed, he worked alone and had non stressful job duties. He had trouble leaving his house and made his fiancé run any necessary errands. His mother reported that it was difficult for him to visit his children since they did not want to expose the children to his irritability. She assumed responsibility for the children since the Veteran could not support them financially or emotionally. The Veteran stated that he could not properly manage his financial affairs. During hypomanic episodes, he would spend all of his money. His mother had to provide financial support. Currently, his fiancé managed his finances. His mother continued to be concerned about his capacity for self-harm if he was left alone for a prolonged period. The Veteran acknowledged having self harm thoughts on a daily basis. At his current job, he had missed five days out the four month period he had been employed. His mother believed he had a sheltered work environment to accommodate his special needs. The Veteran believed that despite medical treatment, his overall functioning had not changed. The Veteran contends a 70 percent rating is warranted. 38 C.F.R. § 4.130, DC 9432. Resolving all reasonable doubt in the Veteran's favor, the Board agrees. Initially, the Board notes that the Veteran has been shown to have a personality disorder. 38 C.F.R. § 3.303(c). However, the record does not show any clear differentiation between psychological symptoms attributed to the personality disorder and service connected bipolar disorder. When the service connected and non-service connected symptoms are not clearly distinguishable, all symptoms will be attributed to the service connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). The Veteran described his bipolar symptoms as rather static at the August 2011 hearing. He could not recall any noticeable period of improvement or deterioration. A longitudinal review of the record supports his reports. The symptoms exhibited at the May 2003 VA examination are roughly similar to those demonstrated in July 2007 and reported at the August 2011 hearing. They include severely labile moods, sleep disturbances, panic attacks, anxiety attacks, and self harm/ suicide ideations. The July 2007 VA examiner also noted unspecified perceptional disturbances. Medication has been of limited benefit in controlling these symptoms. None the treating clinicians or VA examiners have ever questioned the Veteran's veracity reporting his symptoms. The Board considers his reports credible and consistent with the record and suggestive that he has had relatively static symptoms throughout the claims period. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995). The Veteran's bipolar symptoms are of such a severity as to have been productive of deficiencies in work, school, family relationship, judgment, thinking, and mood. Vazquez-Claudio, 713 F.3d at 116-17; 38 C.F.R. § 4.130, DC 9432. The Veteran has only had intermittent employment. He has repeatedly left jobs due to his own irritability or his employer's inability to accommodate his special needs. (See October and November 2007 Veteran reported employment history). He has not been able to complete post secondary coursework to advance his employment capabilities. His severe behavioral problems have led to his divorce, estrangement from his children, financial problems, and a period of homelessness. Although he is currently engaged, he continues to have limited contact with his children due to his labile mood. It also appears that he has persistent self-isolative periods due to panic and anxiety attacks which necessitate his fiancé to perform many activities of daily living on his behalf. His mother reports that he needs close monitoring to ensure he does not harm himself during any depressive episode. Examiners have provided various GAF scores ranging from 45 to an isolated finding of 65 for bipolar disorder in May 2003. Generally, his GAFs have been 50 and 45. Such assessments are suggestive of serious symptoms. The Board has considered whether a total rating is warranted. 38 C.F.R. § 4.130, DC 9432. Here, the Veteran has not demonstrated complete loss for social and occupational function due to his bipolar symptoms. He has been able to maintain intermittent employment in what appears to be a sheltered or accommodative environment. He maintains a relationship with mother and has a fiancé with whom he lives. While the Veteran has serious symptoms resulting in deficiencies in most areas of function, he has not demonstrated complete social and occupational impairment. For these reasons, the Board finds that the Veteran's overall bipolar symptomatology picture does not approximate the total rating criteria. See id. In summary, the Veteran has demonstrated severe bipolar symptoms productive of deficiencies in most areas of functioning. Although the evidence between 2003 and 2007 is scant, the Veteran has credibly described his symptoms as static. Resolving all reasonable doubt in the Veteran's favor, the Board grants a 70 percent initial rating for bipolar disorder for the entire claims period. 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9432. Extraschedular considerations The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that the severity of the Veteran's service-connected bipolar disorder is fully contemplated by the rating criteria regardless of whether such symptoms are considered as part of an individual disability or based upon the combined effects of all service connected disabilities. Mittleider, 11 Vet. App. at 181. The symptoms are productive of labile mood, irritability, and agoraphobia, among others and results in deficiencies in most areas of social and occupational function. The degree of disability exhibited for bipolar disorder is contemplated by the rating schedule as a 70 percent schedular rating is given. Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration for the Veteran's initial increased rating claim. 38 C.F.R. § 4.16(b); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial rating of 70 percent for service connected bipolar disorder is granted. REMAND As noted, the issue of TDIU is on appeal as part of the initial rating claim. Roberson, 251 F.3d at 1384 (2001); Rice, 22 Vet. App. at 447. TDIU is precluded for any period of gainful employment, which is generally defined as annual earnings above the poverty threshold. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (proof of unemployment is necessary to raise a TDIU claim); 38 C.F.R. § 4.16. However, 38 C.F.R. § 4.16 further elaborates: Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Here, the record shows that the Veteran has had intermittent employment and requires disability accommodations. At the hearing, the Veteran asserted that his current job could be characterized as sheltered employment. More development is necessary for this claim as instructed below. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify all medical treatment records for his service connected bipolar disorder since March 2010 and furnish appropriate authorization for the release of private medical records. Take the necessary steps to obtain all records of VA treatment for these disabilities. Efforts to obtain VA records must continue until they are obtained, or it is reasonably certain that they do not exist or that further efforts would be futile. If the Veteran fails to furnish any necessary releases for private treatment records, he should be advised to obtain the records and submit them to VA. If any requested records cannot be obtained, inform the Veteran of this fact, of the efforts made to obtain the records and of any additional efforts that will be made with regard to his appeal. 2. Request that the Veteran complete an updated VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability for all periods of employment since October 2007. 3. After associating all newly generated pertinent medical records above with the claims folder, schedule a VA psychiatric examination for the Veteran to determine the current severity of his bipolar disorder and employability. The claims folder, Virtual VA/ VBMS efolder, and the remand must be made available to and reviewed by the examiner in conjunction with the examination. All symptomatology should be described in detail. The examiner should also provide a Global Assessment of Functioning score for the Veteran's bipolar disorder. The examiner should also provide an opinion concerning the impact of the Veteran's psychiatric disability on his ability to work, to include whether it renders him unemployable, considering his educational and occupational background, without regard for any nonservice-connected disorders. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the examiner's conclusions. The results proffered by the examiner must reference the complete claims file and any inconsistent past opinions given. 4. After completion of the above, the RO/AMC should review the record and readjudicate the Veteran's claim in light of any additional evidence added to the record assembled for appellate review. If any benefit sought remains denied, the Veteran and his representative should be issued an appropriate supplemental statement of the case and afforded the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters 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 Supp. 2012). ______________________________________________ JOHN L. PRICHARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs