Citation Nr: 1330474 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 03-15 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an effective date prior to July 20, 2001, for the award of a 70 percent rating for service-connected bipolar disorder. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability status post right hydrocelectomy as due to medical treatment provided by the Department of Veterans Affairs Medical Center on August 25, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts that increased the rating for the service-connected bipolar disorder from 10 percent to 70 percent, effective from July 20, 2001. The Board remanded this issue to the RO for further development in July 2005. In August 2008 the Board issued a decision that denied the claim, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In December 2009 the Court issued an Order granting a Joint Motion of the Parties to vacate the Board's decision and return the case to the Board for further consideration. In September 2010 the Board issued a decision that again denied an earlier effective date for the 70 percent rating, and the Veteran again appealed to the Court. The Court issued a Memorandum Decision in October 2011 vacating that decision and returned the case to the Board. The Board issued a decision in September 2012 that partially granted the appeal by increasing the disability rating for the period on appeal from 10 percent to 50 percent but not more. The Veteran again appealed to the Court. In January 2013 the Court issued an Order granting a Joint Motion for Partial Remand that left the increased 50 percent rating in place but vacated the Board's denial of a 70 percent rating. The case has now been returned to the Board for further consideration. The issue of entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability status post right hydrocelectomy 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. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. During the course of the appeal prior to May 19, 1999, the Veteran's bipolar disorder symptoms presented a disability picture that approximated considerable occupational and social impairment, but did not approximate severe occupational and social impairment or deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. 2. From May 19, 1999 the Veteran's bipolar disorder symptoms presented a disability picture that more nearly approximated occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for an effective date of May 19, 1999 for the award of a 70 percent rating for bipolar disorder have been met. 38 U.S.C.A. §§ 5110, 5107 (West 2002); 38 C.F.R. § 4.132, Diagnostic Code 9206 (1996); 38 C.F.R. §§ 3.156(b), 3.400, 4.130, Diagnostic Code 9432 (2012). 2. The criteria for an effective date earlier than May 19, 1999 for the award of a 70 percent rating for bipolar disorder have not been met. 38 U.S.C.A. §§ 5110, 5107 (West 2002); 38 C.F.R. § 4.132, Diagnostic Code 9206 (1996); 38 C.F.R. §§ 3.156(b), 3.400, 4.130, Diagnostic Code 9432 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist 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 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b). VCAA 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). Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in an August 2005 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for an earlier effective date, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. A May 2008 supplemental statement of the case advised the Veteran of how disability evaluations and effective dates are assigned, and the types of evidence which impacts those determinations. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing an error is harmful or prejudicial normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's VA treatment records, available private treatment records, and examination reports from the period under review. Because this is a retrospective review of the Veteran's disability prior to July 2001, current medical records would not provide relevant evidence and remand to obtain such records is not required. Similarly, current examination is not required because the Veteran's current symptoms are not at issue. The most recent Joint Motion for Partial Remand (JMR), as incorporated by the Court's Order, expressed no issues regarding duties to notice and assist. The Board is confident that if any VCAA defects existed in its September 2012 decision, such defects would have been brought to the Court's attention in the interest of judicial economy. Applicable Legal Principles In general, unless specifically provided otherwise, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final adjudication, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. With regard to claims for increase, VA laws and regulations provide that the effective date "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor, "unless specifically provided otherwise." 38 U.S.C.A. § 5110(a). Section 5110(b)(2) provides otherwise by stating that the effective date of an increased rating "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." Under 38 C.F.R. § 3.400(o)(1), except as provided in paragraph (o)(2), the effective date is "date of receipt of claim or date entitlement arose, whichever is later." Paragraph (o)(2) provides that the effective date is the "[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from such date otherwise, date of receipt of claim." See Harper v. Brown, 10 Vet. App. 125 (1997). Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The rating criteria for bipolar disorder changed effective from November 7, 1996. The JMR indicated that for this appeal both the old and new must be considered from November 7, 1996. Bipolar disorder (manic, depressed or mixed) was previously assigned Diagnostic Code (DC) 9206 and was rated under the General Rating Formula for Psychotic Disorders, 38 C.F.R. § 4.132, DCs 9201-9210 (1996). The rating criteria in relevant part were as follows. A rating of 100 percent was assigned for active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. A rating of 70 percent was assigned for lesser symptomatology, such as to produce severe impairment of social and industrial adaptability. A rating of 50 percent was assigned for considerable impairment of social and industrial capability. The rating criteria prior to November 1996 also contained General Rating Formulae for Organic Mental Disorders (DCs 9300-9325) and for Psychoneurotic Disorders (DCs 9400-9411) but these were not applicable to psychotic disorders, as bipolar disorder was then classified. From November 1996, bipolar disorder has been classified as a mood disorder and rated under the criteria of 38 C.F.R. § 4.130 (schedule of ratings - mental disorders), DC 9432 (bipolar disorder). In relevant part, the rating criteria are as follows. A rating of 50 percent is assigned for ooccupational 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. A rating of 70 percent is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A rating of 100 percent is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. One factor which may be considered is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (DSM-IV)); see also Richard v. Brown, 9 Vet. App. 266 (1996). GAF scores ranging between 61 and 70 reflect 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 generally functioning pretty well, and has some meaningful interpersonal relationships. A score of 51 to 60 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 peer or coworkers). A GAF score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep job), while a GAF score of 31 to 40 indicates major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). See Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) ((DSM-IV)). In any claim for higher ratings, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability herein decided. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In sum, the Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to the disability. Factual Background The Board's decision in September 2010 determined that the period under appellate review began one year prior to July 20, 2001. However, in response to the Court's Memorandum Decision in October 2011 indicating that the provisions of 38 C.F.R. § 3.156(b) applied in this case, the Board readjudicated the appeal in September 2012 based on review of the entire period since service connection was initially granted (i.e., from May 1992 to July 2001). The Veteran presented for initial VA psychological screening in March 1992 complaining of depression, sporadic substance abuse and difficulties with relationships. He endorsed previous hospitalizations for manic-depressive disorder and stated his mind was not usually where it was supposed to be. He stated he was currently studying for a Master's Degree and ordination in theology; he had previous employment selling insurance and teaching children. He stated he had held a number of jobs but was usually successful in the things he had tried. The Veteran had a psychological assessment in May 1992 by the National Center, Post Traumatic Stress Disorder (NC/PTSD) at the Boston VA Medical Center (VAMC). The Veteran reported having become increasingly distant, isolative, and suspicious of others since returning from Vietnam. He reported keeping weapons and staying in the house a great deal. He had been married and divorced twice and had been in relationships with several other women. He received a bachelor's degree in the 1970s and was currently a divinity student at Harvard Divinity School. He was working as a childcare worker with HIV-infected children in the Children's AIDS Program at Boston City Hospital, where he had been for the past four years. Since discharge from service he had held approximately 16 jobs. The Veteran had been employed the majority of his time since discharge, but appeared to be underemployed relative to his skills and training. The Veteran reported experiencing recurrent and distressing recollections four or five times per week. He dissociated to memories of Vietnam two or three times per week. He had markedly diminished interest in significant activities, including sports, hobbies, and social gatherings. He reported experiencing emotional numbness one third of the time. He felt marked irritability and intense anger. He experienced hypervigilance. He reported sub-threshold difficulties in concentration. The examiner noted that it seemed clear the Veteran suffered a great deal due to his anxiety, depression, and suspiciousness. He tended to minimize his pain when reporting to others and felt misunderstood because other people did not fully recognize his suffering. His reserve, suspiciousness, and tendency to isolate all helped confirm his disconnectedness from others. The examiner diagnosed PTSD; bipolar disorder; and, cannabis and alcohol dependence, both in remission. The examiner assigned a current Global Assessment of Functioning (GAF) score of 51, and noted the highest GAF score from the past year had been 55. A VA medical certificate later in May 1992 shows the Veteran presented complaining of mood swings ranging from depression to over-activity. He endorsed passive suicidal thoughts. The Veteran reported he was currently a divinity student at Harvard University but that he could not complete his examinations because he was unable to focus on his studies. Examination showed the Veteran to be tense but cooperative, mildly-to-moderately depressed and without pressured or abnormal speech although he complained of "racing thoughts." The Veteran was oriented times three. The clinician entered an impression of bipolar disorder/PTSD and stated that a bed would be reserved for the Veteran the following week. Thereafter, the Veteran received inpatient psychiatric treatment at Boston VA Medical Center for approximately one week in May-June 1992. The intake note observed that this was the Veteran's first psychiatric admission at VA but he had multiple previous admissions at non-VA facilities. The Veteran was admitted voluntarily, complaining of fleeting olfactory hallucinations, strange tingling sensations in the extremities, inability to concentrate, feeling of being anxious and out-of-control, decreased sleep and appetite and need for isolation. On admission, the Veteran was neatly dressed, pleasant, intelligent, and articulate with some tangentiality. He was oriented in all spheres, was no longer experiencing any tingling in his arms and legs, and denied current olfactory, auditory or visual hallucinations. He admitted a history of alcohol use and many associated arrests but he denied using alcohol except minimally over the past six years and reported his last marijuana use was one month earlier. His mood was anxious and hedonic but he denied any suicidality. The Veteran reported he lived alone but had frequent interaction with his girlfriend, who is the mother of his son and lived separately from him. The Veteran reported he was currently a graduate student and having held multiple jobs from which he had been terminated due to his speaking or acting against perceived injustices on the part of his employers. He associated the origin of these impulses with what he believed was an unjust imprisonment during service. During his hospital stay the Veteran became distressed with what he defined as "behavioral management." He asked to be discharged the day after admission and reluctantly signed an against-medical-advice (AMA) form and agreed to remain for 72 hours. He later reported more discomfort with the ward routine and said he was feeling more able to resume his work at home. He said his concentration had improved and the hallucinatory symptoms had abated. A few days later, he rescinded his AMA but still requested discharge. He was released overnight to deal with an emergency at his home. He returned the next day and was discharged. At discharge, he was no longer endorsing olfactory and tactile symptoms and no longer felt confused. He was eating well and, with the help of Klonopin, was sleeping well. He felt confident about returning to his home, job, and school work. The Veteran was noted to be competent and able to manage his own affairs. Discharge diagnosis was PTSD and history of bipolar disorder (Axis I) and paranoid personality disorder (Axis II). The Veteran had a psychopharmacology consultation at NC/PTSD in June 1992 for the purpose of discussing possible medication to manage his mood swings. The Veteran described depression, a tendency to isolate and inability to cope with pressured situations. He reported moments of feeling like he was racing and out of control, between which he crashed and stayed at home, feeling hopeless and helpless. He reported episodes of dissociation and feeling threatened or vulnerable. Mental status examination (MSE) showed the Veteran's mood to be depressed and pessimistic, although he did not display a sad affect consistent with reported mood but rather seemed quite cheerful and able to smile easily and laugh appropriately. His affect was varied and reasonably appropriate to content. On the first interview, his thought process was quite circumstantial, but it was better organized during the second interview. Similarly, his speech was less pressured during the second interview than in the first. There were no delusions or hallucinations. The Veteran admitted to a passive wish to die much of the time but denied active suicidal or homicidal ideation. Formal cognitive examination was not performed but the Veteran appeared to be grossly intact. The examiner, a psychiatrist, diagnosed bipolar disorder, PTSD and alcohol abuse in remission. The psychiatrist also characterized the Veteran as "mildly symptomatic." During follow-up at NC/PTSD later in June 1992 the Veteran reported things had settled down. He was sleeping better, but still only 4-6 hours per night. He felt as though his racing thoughts were returning to baseline but were not quite there yet. The Veteran reported he was not staying at home all day anymore and that he was currently working 30-35 hours per week and that this was going well. However, he did not socialize much. MSE was notable for some vagueness and excessive distraction. Affect was relaxed and generally appropriate. The Veteran submitted a statement in November 1992 asserting his day-to-day activities were disturbed, in that he would start for a destination but inexplicably go elsewhere; he also did impulsive things like quit his job or give up his apartment without any plan for what he would do thereafter. On 3-4 occasions per month the Veteran would feel like he was in another dimension or another world; these episodes in duration from several hours to several days. The Veteran also complained of emotional alienation and periods of uncontrollable depression alternating with periods of manic activity sometimes accompanied by heavy use of alcohol. The Veteran stated his psychiatric disturbance would likely prevent him from achieving his occupational ambition of becoming an ordained Episcopalian priest. A July 1994 treatment note by a psychologist at the National PTSD Center, Boston VAMC, states the Veteran had been seen on various dates between July-November 1993. Earlier phases of the treatment were emotion-focused, which was difficult for the Veteran. The subsequent focus was monitoring and intervention with the Veteran's depressed mood and general lack of motivation or productivity. The Veteran was quite happy with his success in increasing activity levels and accomplishing various tasks; the Veteran felt he had made substantial gains and desired to terminate treatment. Review of VA medical records from October 1994 through January 1995 generally reveals depression, agitation and isolation. Among the most notable findings from these records were that the Veteran had gone on several drinking binges and had been estranged from his wife and children. The Veteran reported in October 1994 that he had been unemployed for several months, but in December 1994 he reported he had been employed in a temporary job for the past several weeks. The Veteran had a VA psychiatric examination on May 19, 1999, performed in support of his claim of entitlement to service connection for PTSD. The examiner reviewed the claims file and noted the Veteran's subjective history and documented history at length. The examiner noted that after service the Veteran obtained a Bachelor of Arts degree from the University of Massachusetts, following which he worked in a stock brokerage, an insurance company, an inn and an AIDS research facility; in each of these positions the Veteran had reacted negatively to perceived abuse and injustice committed by his supervisors and at some point made an issue out of these perceived abuses by dramatic displays of anger and dyscontrol. The Veteran's course of adjustment over the years had been steadily downward. The Veteran reported that he was current expending every effort to stay out of psychiatric hospitals and to avoid further psychotropic medications. The Veteran denied being treated at that time for any psychiatric condition and stated he was living with his spouse and two children. He currently worked full-time as a computer support specialist, in which he made an annual salary of $29,500, but he stated he was not happy and that at least four times per week he wondered about a "hidden agenda" at his workplace and whether he was about to be victimized again. The examination report describes the Veteran as dressed in a shirt, tie, and slacks. His personal hygiene seemed to be good, but there was an air of dishevelment as well. His beard was untrimmed and his clothing was almost wildly mismatched. His speech was well articulated and of good volume, and he was personable and appropriate in his interactions with the examiner. The Veteran was able to understand and respond to the examiner's questions and was oriented to all spheres, but his actual answers were lengthy and rambling and made either little sense or were so impossibly vague that the examiner was unable to draw any firm conclusions about what the Veteran was actually saying. The Veteran tended to repeat certain phrases over and over again such as "going to pieces," "bowing out" or "things out of hand." The more specific the question became the more vague and tangential the responses were; this became particularly evident when the examiner asked about work, interpersonal relationships, the use of alcoholic or drugs or the presence of suicidal ideation. The examiner stated it was impossible to determine what the realities were or what the Veteran was trying to communicate. The examiner noted the Veteran denied problems with drugs or alcohol but these contentions were contradicted by objective evidence of record. The Veteran had little insight into the nature of his difficulties but appeared to be focused on his belief that he was being treated unjustly. The Veteran's thinking and judgment were both questionable, and it was difficult to see how he could come to logical conclusions about anything. It was apparent from the Veteran's history and current functioning that he was highly sensitive to any kind of slight and would regularly exaggerate such slights into a major concerted effort to do him harm. The Veteran stated the past year had been better than most, but admitted nonetheless that at least four times per week he felt himself to be talked about and at imminent risk of again being victimized. The examiner stated the Veteran's overall mood was a kind of hovering, hostile dysthymia, ready to burst into episodes of hypomanic dyscontrol. It was unclear to what extent the Veteran was contemplating suicidal or homicidal intent; the Veteran's usual pattern was to burst out in angry verbal displays and then flee the situation. The Veteran had a long history of sleep difficulties. The Veteran seemed to have little interest in supportive relationships. The Veteran was frequently absent from his home for periods of 5-6 weeks, usually prompted by feelings of his own worthlessness. The Veteran endorsed feeling "run down" most of the time, which is why he was currently resisting psychotropic medications. The examiner stated it was unclear whether the Veteran was capable of clear, objective thinking. Certainly, his educational and occupational history since discharge from service showed capacity for such functioning, but he was currently obsessed with two ideas: first, that he must find some kind of safe haven for the periods of time when he felt overwhelmed by the stress of these injustices that were committed in the world and on him personally; and, second that there were these injustices and they, at times, were clearly targeting him for abuse. The Veteran was determined to be competent for VA purposes. The examiner stated the Veteran did not have PTSD, but diagnosed bipolar disorder type 2 (Axis I) and paranoid personality disorder (Axis II) and assigned a current GAF score of 70. Analysis Based on the above, the Board finds that the Veteran's overall symptomatology from May 29, 1992, through May 18, 1999, most closely approximated the level of functioning that is consistent with a 50 percent disability rating, under both the old and the new rating criteria, as applicable. Only the old rating criteria may be applied to the period prior to November 7, 1996. As noted above, both criteria may be considered from November 7, 1996 to July 2001. During the period May 1992 through May 18, 1999, the Board finds that when considering the "old" rating criteria, the Veteran had considerable impairment in his ability to establish or maintain effective relationship with people, as indicated by his two divorces and intermittent estrangement from his children. The record also reflects considerable industrial impairment in that the Veteran had intermittent bouts of unemployment, and that when employed he was underemployed based on his educational level. Thus, the current 50 percent rating is appropriate. The Board does not find that the Veteran's disability during the period from May 29, 1992 through May 18, 1999, approximated "severe impairment of social and industrial adaptability" as required under the old criteria for a 70 percent rating. During the period the Veteran had generally effective relationship with his girlfriend and his children, which disproves a severely impaired ability to establish and maintain effective or favorable relationships with people. The Veteran was also shown to have maintained several of his jobs for several years and to be taking graduate-level coursework in college, which disproves severe impairment in his ability to obtain or retain employment. Significantly, the NC/PTSD in June 1992 characterized the Veteran's disability as "mildly symptomatic" and in July 1994 the Veteran was so satisfied with his progress that he asked to terminate VA psychiatric treatment. In sum, the evidence of record does not show severe impairment of social and industrial adaptability as required by the rating criteria applicable during the period. The most recent Joint Motion, as incorporated by the Court's Order, directed the Board to discuss whether the May 1992 NC/PTSD assessment notation that the Veteran had held 16 jobs since discharge constitutes evidence of entitlement to a 70 percent rating under the old criteria. The NC/PTSD treatment note in question shows the Veteran to be currently employed in a position he had held for four years, which actually demonstrates a high degree of current occupational stability. The reference to "approximately 16 jobs" (by the Veteran's reckoning) in approximately 16 years (from discharge in 1972 to his current job in approximately 1988) does not represent excessive job turnover, given that during the period the Veteran was also attending college. Moreover, the Veteran's occupational functioning during the period contemporaneous to the claim is more probative of his functioning level for compensation purposes than his more remote job history. The Board accordingly finds the May 1992 treatment note does not establish entitlement to a 70 percent rating under the old rating criteria. In considering the severity of the Veteran's symptoms during the period under review the Board has considered the GAF scores that were assigned. While a GAF score is not the sole basis for assigning a disability rating, it provides a clinical indicator of the patient's functional ability. 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). In May 1992 the Veteran was assigned a GAF score of 51, which indicates a moderate level of severity. This score is consistent with the symptoms shown on examination as well as with the criteria for the currently-assigned 50 percent rating. Accordingly, the GAF score, when considered with the other evidence of record, does not support a 70 percent rating for the period prior to May 19, 1999, under the old criteria. Turning to the period from November 7, 1996 wherein the new rating criteria apply, the evidence of record that addresses his psychiatric disability consists solely of the VA examination in May 1999. The Veteran was currently living in a family consisting of himself, his spouse and four children, which does not indicate impairment of family relations. Further, the Veteran was currently earning $29,500.00 per year, which is well above the 1999 poverty threshold of $16,500.00 for a family of four, as established by the United States Department of the Census. However, the Veteran's course of adjustment over the years was described as having been "steadily downward." During examination the Veteran demonstrated two of the specific symptoms associated with the 70 percent rating under the current criteria (difficulty in adapting to stressful circumstances and speech that was intermittently illogical, obscure or irrelevant). The other symptoms associated with the higher rating were note shown. The Veteran did not manifest suicidal ideation, obsessional rituals, near-continuous panic or depression, spatial disorientation or inability to establish and maintain effective relationships. While the examiner noted there was an air of dishevelment about him, the Veteran was noted to have good personal hygiene. Further, the Veteran was oriented, well articulated, personable, and appropriate in his interactions. However, the Veteran's mood was observed as hostile and ready to burst into episodes of hypomanic dyscontrol. It was noted that the Veteran was frequently absent from his home for periods of 5-6 weeks, usually prompted by feelings of his own worthlessness. The examiner stated that it was unclear whether the Veteran was capable of clear, objective thinking. The examiner indicated the Veteran's judgment and thinking were both "questionable" but did not show any associated functional impairment, and found the Veteran to be able to manage his own affairs. Upon consideration of the record as a whole, the Board finds that beginning May 19, 1999, the evidence reflects that the Veteran's psychiatric symptomatology more nearly approximates the rating criteria for a 70 percent rating. Although the May 1999 VA examiner assigned a GAF score of 70, the Veteran's symptoms, to include tangential speech and questionable thinking and judgment, reflect a higher level of impairment than is suggested by such score. Accordingly the Board assigns that GAF score low probative value. The Board has considered the Veteran's lay assertions as to the severity of his psychaitric disorder during the course of the appeal. However, his lay evidence does not show a degree of severity that approximates the criteria for a 70 percent rating prior to May 19, 1999. The Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his psychiatric disability. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). In this case, the manifestations of the service-connected psychiatric disability are contemplated by the schedular criteria. Indeed, the Board has considered all of his psychiatric symptomatology and its impact on occupational and social functioning, not just those symptoms enumerated in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. Accordingly, referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not in order. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In summary, the Board concludes that the criteria for a 70 percent evaluation for the Veteran's bipolar disorder prior to May 19, 1999 have not been met, but that a 70 percent rating is warranted from that date. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine, and applied it to grant the appeal in part. However, as the preponderance of the evidence is against the remainder of the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An effective date prior to May 19, 1999, for the award of a 70 percent evaluation for service-connected bipolar disorder is denied. An effective date of May 19, 1999 for the award of a 70 percent evaluation for service-connected bipolar disorder is granted, subject to the rules and regulations governing the payment of VA monetary benefits. REMAND The RO issued a rating decision in January 2012 that denied compensation under 38 U.S.C.A. § 1151 for status post hydrocelectomy. The Veteran submitted a timely Notice of Disagreement (NOD) in March 2012. There is no indication in the claims file or in Virtual VA that the RO has issued a Statement of the Case (SOC) in regard to this issue. When the claimant has filed an NOD and there is no SOC on file for that issue, the Board must remand, not refer, the issue to the RO for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). Thereafter, the RO should return the claim to the Board only if appellant perfects his appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: The RO/AMC should issue to the Veteran and his representative an SOC on the claim for entitlement to compensation under 38 U.S.C.A. § 1151 for status post hydrocelectomy, so that the Veteran may have the opportunity to complete an appeal on this issue (if he so desires) by filing a timely substantive appeal. The issue should only be returned to the Board if a timely substantive appeal is filed. 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 Supp. 2012). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs