Citation Nr: 1611122 Decision Date: 03/18/16 Archive Date: 03/23/16 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 service-connected bipolar disorder, prior to August 30, 2013. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disability (bipolar disorder), prior to August 30, 2013. REPRESENTATION Appellant represented by: Winona W. Zimberlin, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran, who is the appellant, 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. The Veteran's claim for a rating in excess of 50 percent for bipolar disorder was denied in the March 2008 rating decision, after which he 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's claim was denied in the September 2009 rating decision, after which he filed an NOD in September 2009, and the RO issued an SOC in June 2010. The Veteran filed a substantive appeal (via a VA Form 9) in July 2010. 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. In June 2013, the Board denied the Veteran's claim for an increased rating for service-connected bipolar disorder. Also at that time, the Veteran's claim for TDIU was remanded to the agency of original jurisdiction (AOJ) for further action, to include additional development of the evidence. The Veteran appealed the portion of the June 2013 decision in which the Board denied a higher rating for bipolar disorder to the United States Court of Appeals for Veterans Claims (Court). In February 2014, the Court granted the joint motion for remand filed by representatives for both parties, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the joint motion. After taking further action on the TDIU claim on remand, the AOJ continued to deny the claim (as reflected in a March 2014 supplemental SOC (SSOC)) and returned that matter to the Board for further appellate consideration. Notably, also in March 2014, the AOJ awarded the Veteran a 100 percent disability rating for his service-connected bipolar disorder, effective August 30, 2013. Although the RO granted the maximum, 100 percent rating from August 30, 2013, inasmuch as higher ratings for this disability and a TDIU are available prior to that date, and the Veteran is presumed to seek the maximum available benefit for a disability, the claims for a higher rating and for a TDIU, each for the period prior to August 30, 2013, remain viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Most recently, in September 2014, the Board remanded the increased rating and TDIU claims on appeal to the AOJ for further action, to include readjudication of the claims on the basis of additional evidence received without a waiver of initial RO consideration. After accomplishing the requested action, the AOJ continued to deny the claims (as reflected in an October 2014 supplemental SOC (SSOC)) and returned these matters to the Board for further appellate consideration. In January 2015, the Board denied the Veteran's claims for an increased rating for service-connected bipolar disorder and a TDIU prior to August 30, 2013. The Veteran appealed the January 2015 decision Court. In September 2015, the Court granted the joint motion for remand filed by representatives for both parties, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the joint motion. The appeal now returns to the Board for further consideration. This appeal is now being processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless, electronic claims processing systems. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. From the October 3, 2007 date of claim for an increased rating through August 29, 2013, the Veteran's bipolar disorder was manifested by hallucinations and delusions, suicidal ideation, depression, irritability, disturbances in motivation and mood, speech problems, anxiety, suspiciousness, paranoia, guilt, shame, problems with motivation and energy, and limited and superficial relationships with people outside of his family; collectively, these symptoms are of the type, and extent, frequency and/or severity to suggest no more than occupational and social impairment with deficiencies in most areas. 3. The schedular criteria are adequate to rate the Veteran's bipolar disorder from for the period from October 3, 2007, to August 30. 2013. 4. The collective lay and medical evidence indicates that, for the period from October 3, 2007, to August 30. 2013, the Veteran's service-connected bipolar disorder prevented him from engaging in substantially gainful employment. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for a 70 percent rating for bipolar disorder, from October 3, 2007, tp August 30. 2013, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9432 (2015). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for a TDIU for the period from October 3, 2007, tp August 30. 2013, are met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 2014) 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, 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. 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 his claims for a higher rating and entitlement to TDIU, 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 matters 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. The examinations afforded the Veteran were adequate to allow proper adjudication of the issues on appeal. 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 his representative on his behalf. The Board finds that no further AOJ action on either claim, prior to appellate consideration, is required. As regards the Board hearing, it is noted that in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. In this case, the Board finds that there has been substantial compliance with the duties set forth in 38 C.F.R. 3.103(c)(2), and that the hearing was legally sufficient. During the June 2011 hearing, the undersigned Veterans Law Judge identified the issues on appeal and the hearing transcript also reflects appropriate exchanges between the Veteran, his representative, and the undersigned regarding the basis for the Veteran's claims and the evidence associated with the record. The Veteran offered hearing testimony regarding the severity of his bipolar disorder, including ways in which it affects his life socially and professionally. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully discussed by the undersigned and the Veteran. See Bryant, 23 Vet. App. at 497. Although the undersigned did not explicitly suggest the submission of any specific, additional evidence, on these facts, such omission is harmless. As noted, following the hearing, the Board remanded the TDIU claim in June 2013, and remanded both claims in September 2014-primarily, for due process reasons. The Board is also satisfied that the actions requested on remand have been accomplished. In summary, the duties imposed by the VCAA have been considered and satisfied. 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 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 A. Increased Rating 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. The RO has assigned ratings 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. Under the General Rating Formula, a 50 percent rating is warranted for an 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. The Board recognizes that, in Mauerhan v. Principi, 16 Vet. App. 436 (2002), the United States Court of Appeals for Veterans Claims (Court) stated that the symptoms listed in VA's general rating formula for mental disorders is 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. However, the Court further indicated that without those examples, differentiating a 30 percent evaluation from a 50 percent rating would be extremely ambiguous. Id. at 442. In Vasquez-Claudio v. Shinseki, F.3d 112, 117 (Fed. Cir. 2013), the Court also held that a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. The Court further held that, in assessing whether a particular disability rating is warranted requires a two-part analysis, including (1) an initial assessment of the symptoms displayed by the Veteran and, if they are of the kind enumerated in the regulation and (2) an assessment of whether those symptoms result in the occupational and social impairment contemplated by that particular rating. See Id. at 118; see also March 2014 Memorandum decision. Indeed, considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (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). The Board notes, parenthetically, that VA recently updated references in its regulations to the Fifth Edition of the DSM (DSM-5). However, the changes do not apply to claims that were certified for appeal to the Board on or before August 4, 2014. See 80 Fed. Reg. 14,308 (March 19, 2015) (Applicability Date). Inasmuch as the Veteran's appeal was certified to the Board prior to August 4, 2014, the amendments are not applicable to this appeal.) The evidence pertinent to the claim for increase received on October 3, 2007 includes VA and private treatment records dated from December 2006 to August 2013, VA examination reports dated in February 2008, July 2009, June 2012, and August 2013; a December 2009 statement from Dr. J.M.; an April 2013 Vocational Counseling Assessment from T.P.L.; and various oral and written statements made in support of the Veteran's claim. Considering the pertinent evidence in light of the applicable rating criteria and governing legal authority, and after resolving all doubt in favor of the Veteran, the Board finds that a 70 percent rating, but no higher, is warranted for the Veteran's bipolar disorder from October 3, 2007, to August 30, 2013. During VA outpatient treatment in December 2006, the Veteran reported feeling distraught, down, and anxious. On objective examination, the Veteran was alert and oriented and well dressed, but he was restless with loud speech. He reported that his mood was manifested by "emotional pain" and the examiner noted that his affect was mildly pressured, although without irritability. The Veteran's thought process was logical, though circumstantial at times, but his thought content was normal as he denied experiencing suicidal or homicidal ideation or hallucinations. His insight and judgement were variously described as fair to good. The examiner noted that he attended AA two times a week. The Veteran was afforded a VA examination in February 2008, during which he reported a history of being falsely accused of a crime and imprisoned and that, because of this incident, he was emotionally numb, paranoid, depressed, and had significant feelings of guilt and shame. The VA examiner noted this event had a significant impact on the Veteran. The Veteran reported having some problems with motivation and energy and stated that he forced himself to engage in work and his artwork. He reported experiencing occasional thoughts of suicide and he also endorsed feeling irritable with other people at times. In this regard, he reported that he spent much of his time engaged in creating contemporary art work and writing poetry on his walls at home. The Veteran reported that he saw flashes of light that he believed were angels. He reported being highly spiritually and involved in Native American rituals, including sweat lodges. The VA examiner noted the Veteran did not demonstrate any inappropriate behavior and that his symptoms were similar to those documented in 2003 and 2004. The Veteran reported working full-time at his own painting business. While he reported having a concentration problem at work at times, he reported performing well at work. He denied any recent relationships but he reported having some friends, socializing with others at Al-Anon meetings, and having close contact with his parents and siblings. The examiner noted there was no difficulty with activities of daily living. Mental status examination revealed his speech was somewhat pressured and he was difficult to interrupt. His mood was very depressed and numb but his affect had good range and his cognition was intact. His thought process was logical though circumstantial, and his insight and judgment were fair. The examiner noted the Veteran had infrequent, passive suicidal ideation, without intent or plan, that paranoid ideation was evident, and that the Veteran had some delusional and grandiose content. The examiner assigned a GAF score of 54. During outpatient treatment in May 2008, the Veteran reported being socially avoidant and anhedonic, with feelings of detachment, depression, and poor concentration. He endorsed having dreams and intrusive memories, as well as being hypervigilant with heightened startle response. The Veteran reported having chronic anxiety but no panic attacks. He also reported having suicidal ideation but no plan or intent. The Veteran remained being self-employed. The examining physician noted that he lived alone and had few close friends, as his support groups were his social network. While the Veteran reported that he did not have much fun, he reported enjoying flea markets, trips to New York, and trance dancing. The examiner noted that his mood was depressed, with his affect constricted with lack of emotion. There were no indicators of hypomania or mania such as pressured speech or disturbed sleep. There was also no indication of thought disorder such as paranoia, delusions, or auditory or visual hallucinations. The Veteran's thought process was also linear and goal directed and his insight and judgement intact. The assigned GAF score was 50. In August 2008, the Veteran's mental status examination remained the same, except he described his mood as okay and the assigned GAF score was 53. During outpatient treatment in February 2009, the Veteran reported that he felt less obsessed and continued to look for peace. He was appropriately groomed and his mood was euthymic. His affect was animated but was within normal limits otherwise. His thought process was linear and goal directed and there were no indicators of mania or thought disorder, as he denied experiencing paranoia, delusions, or hallucinations. He also denied having any suicidal ideation, intent, or plan, and his insight and judgment were intact. The assigned GAF score was 60. See also December 2009 VA treatment record. During a July 2009 VA examination, the Veteran reported that he continued to be in shock and experienced paranoia due to his wrongful imprisonment. He reported developing problems with depression, guilt, shame, motivation, energy, thoughts of suicide, dreams of being back in jail, and irritability as a result thereof. He also reported some visual hallucinations with chronic mood disturbances, including depressive and hypomanic features. He described continued irritability and stated that he was frequently argumentative with others. However, the Veteran reported that he was able to cope with his problems with art and prayer and he denied any difficulty with his activities of daily living. The Veteran reported that he needed to work and he reported working 20-30 hours a week with his painting business. In this regard, the VA examiner noted the Veteran had limited difficulty in his ability to function as a painter, as he reported variable ability to obtain work but also stated that he did a good job and people liked him. He reported that, when he was not working, he spent time on his art and poetry. He reported having some friends to whom he spoke occasionally. Mental status examination revealed 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. The examiner noted he had some hyper-religiosity, as well as visual hallucinations of seeing bright lights which he believed to be angels, but he reported the hallucinations were not distressing to him. His thought process was tangential and his insight and judgment were fair. His assigned GAF score was 55. In December 2009, a private medical provider, Dr. JM, reviewed the Veteran's claims file without an examination but listed the medical evidence in detail and noted the Veteran's symptoms as documented in the evidence previously discussed in this decision. After reviewing the record, Dr. JM stated that the Veteran's service-connected psychiatric disability accounted for his periods of unemployment from 1995 to the present and rendered him individually unemployable. He noted that evidence from several of the Veteran's providers since 1995 alone was suggestive of very severe impairment of functioning due to his psychiatric disorder and that, when taking into account statements from the Veteran's sister, the "picture of a completely disabled man emerges." VA treatment records dated in 2010 reflect that the Veteran continued to endorse anxiety which, while constant, fluctuated in severity. Examiners noted that he was highly animated but that his thought process remained liner and goal-directed. His thought content was also normal as he consistently denied experiencing suicidal ideation, intent or plan, as well as no paranoia, hallucinations, or other indicators of mania. There was, however, some evidence of grandiosity. The Veteran's mood was variously described as euthymic, worried, shameful, anxious, and somewhat expansive, while his affect was variously described as animated, full, and somewhat constricted. The Veteran's insight and judgement also varied between being intact to impacted by some grandiosity. See VA treatment records dated July, August, September, and November 2010. His GAF scores were variously reported as 50, 55, 63, and 65. See id. In March 2011, the Veteran reported feeling mildly depressed with anxiety and examiners noted that he was mildly animated. His affect was full and his mood was euthymic. His mental status examination was otherwise normal, and the assigned GAF score was 65. The Veteran was afforded a VA examination in July 2012, at which time the only Axis I diagnosis 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. In this regard, the examiner noted the Veteran continued to own a house painting business and worked 15-20 hours per week. The Veteran reported that his schedule was erratic in that he may work several hours one day and then not go to a site the next day. The examiner noted the Veteran was able to maintain part time employment due to the flexibility of his business, including his ability to stop jobs or delegate work to others if there was a dispute. In fact, the Veteran reported employing a few men under him, mainly in the summer, which allowed him to come and go more easily. He reported having a panic attack on the job in 2010 and, while he was unaware of the possible trigger, he thought it was stress and subsequently reduced his work load. He also constantly monitored his work to prevent himself from getting overwhelmed or overtired. In this regard, the Veteran reported that he had difficulty dealing with people generally and had walked away from jobs because of difficulty getting along with customers, but he also reported feeling satisfied when customers were happy. Notably, the VA examiner noted that, because of the Veteran's limitations/symptoms, he was unlikely to work full time or in another capacity. The Veteran reported a close relationship with his siblings, as he stated he had an overall good relationship with his family, but reported no intimate relationship and stated he was fairly isolated outside of treatment. He reported being a recluse and experiencing paranoia, but he also stated that he wanted to feel a part of a community, attended Al-Anon meetings, and attempted to create a support group. He reported occasional feelings of hopeless and fleeting thoughts of suicide but denied any intent or current plan. He reported difficulty with motivation but 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 was painting, of feeling 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 also reported thinking that the vacuum cleaner was sending him signals or that someone may come out of the television and was 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 noted symptoms were depressed mood; anxiety; suspiciousness; panic attacks that occurred 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 and 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 denied any current suicidal ideation, homicidal ideation, and mania. He did not endorse psychotic symptoms but did report experiencing some symptoms within the previous month. The examiner noted the Veteran was not an immediate risk to himself or others and that his judgment and insight were intact. After reviewing the Veteran's treatment records and examination reports, the examiner noted a relative consistency in the Veteran's reported symptoms and functioning, and opined that it is more likely than not that the Veteran's symptoms had not significantly worsened since 2007, especially in regard to the impact of his symptoms on his functioning, which the examiner described as limited and unchanged. The examiner further opined that the Veteran is more likely than not able to continue working in his current capacity, as his job allowed the Veteran to leave when he is overwhelmed and avoid interpersonal disputes if necessary. However, the examiner opined that, 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 was psychologically fragile, and that the unlawful arrest/conviction had been overwhelming. The examiner further noted that, overall, the Veteran was isolated in that he did not report close emotional relationships but received a sense of community and purpose from the treatment courses and support groups he participated in. The examiner additionally opined that, if any of these factors such as his ability to paint was altered, it was highly likely his ability to be employed even part time would be compromised. In April 2013, a private vocational expert reviewed the Veteran's records and submitted a statement in support of the Veteran's claim wherein she detailed the evidence of record, specifically noting the Veteran's education, work history, and earnings. After noting the evidence of record, the expert stated that, based on federal guidelines, it did not appear the Veteran had been performing substantial gainful employment since 1998, with the exception of 2003. She further noted that the description of the Veteran's employment allowing him to be flexible in leaving early, arriving late, and leaving the worksite as he desires or having co-workers complete tasks for him would not be tolerated in the world of work and that this represented a person who had marked limitations in the ability to tolerate work stress, marked limitation in concentration, attention, and pace, along with a marked limitation in social functioning. In sum, she stated that the record reflected a serious level of impairment to such a level that the Veteran would not be able to sustain competitive gainful employment as of June 17, 1997 when he was hospitalized for the administration of electroshock therapy and that the record is consistent that there had been no remission since that time, nor improvement in the Veteran's functioning. She ultimately opined that, from a vocational perspective, it is more likely than not that the Veteran was unemployable within the world of work. On August 30, 2013, the same physician who conducted the July 2012 VA examination reviewed the evidentiary record and conducted an additional mental status examination of the Veteran. In addition to noting the symptoms manifested at that time, the VA examiner provided a synopsis of the Veteran's symptoms and functioning prior to that examination based upon his review of the record. In this regard, with respect to the Veteran's employment history, the examiner noted that, while the Veteran had been employed by the Danbury Highway Department, both the Veteran and his sister reported that his ability to maintain that job was largely related to his father's political connections which allowed him to perform inadequately while employed. The examiner also noted that, while the Veteran had maintained a part-time house painting business since working with the Highway Department, the evidence shows that his work schedule was erratic with varying hours, inconsistent work output and a pattern of feeling easily overwhelmed with work. The VA examiner noted that, in July 2012, the Veteran reported his earnings to be between $15,000 to $18,000, but that his 2012 tax return reflected that his adjusted gross income was actually $ 2,544. In this context, the VA examiner noted, in pertinent part, that the Veteran's income did not come close to the poverty threshold for an individual under 65 with no children, as defined by the U.S. Census Bureau, or the definition of substantial gainful activity for a self-employed individual as defined by the Social Security Administration. Accordingly, the VA examiner opined that, while the Veteran was employed, his employment was marginal and would not be considered substantial gainful employment, further noting that the evidence of record - inclusive of opinions provided by him, other professionals, the Veteran, and his sister - showed it is unlikely the Veteran would be able to work in any other capacity that involved more hours, more interactions with others, or more responsibility. Collectively, the aforementioned evidence reflects that, for the period from October 3, 2007, tp August 30. 2013, the Veteran's bipolar disorder was manifested by irritability, visual hallucinations, and speech problems, with depressed mood, anxiety, suspiciousness, and disturbances in motivation and mood. Notably, the Veteran's symptoms of paranoia, depression, guilt, shame, thoughts of suicide, irritability, and problems with motivation and energy were attributed by VA examiners and the Veteran himself to his false arrest and imprisonment, for which he was later exonerated. It was noted throughout his VA examination reports that the post-service incident accounted for a great deal of the Veteran's psychiatric symptoms. However, because the VA examiners did not explicitly distinguish between the symptoms attributable to the Veteran's service-connected bipolar disorder and the post-service incident, the Board will consider all of the Veteran's psychiatric symptoms in conjunction with his bipolar disorder. See Mittleider v. West, 11 Vet. App. 181 (1998) (holding that if it is not medically possible to distinguish the effects of service-connected and nonservice-connected conditions, the reasonable doubt doctrine mandates that all signs and symptoms be attributed to the veteran's service-connected condition). Based on the foregoing evidence and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that, from the October 3, 2007 date of claim for an increased rating through August 29, 2013, the criteria for a 70 percent, no higher rating, for bipolar disorder are met, as the Veteran's symptoms more nearly approximated occupational and social impairment with deficiencies in most areas, including work, social relations, judgment, thinking, and mood. At the outset, the Board notes the evidence dated since February 2008 shows the Veteran consistently reported experiencing suicidal ideation, which is listed in the rating schedule as a symptom of the type warranting a 70 percent rating and, in this case, represented an impairment, or deficiency, in the Veteran's thought content. The Board notes that, while the Veteran's representative did not explicitly state that the Veteran was experiencing suicidal ideation when they submitted his informal increased rating claim on October 3, 2007, the preponderance of the evidence dated since receipt of the October 2007 increased rating claim describes the Veteran's thoughts of suicide as passive and fleeting, with no intent or plan, which supports a finding that the Veteran was experiencing such symptoms when his increased rating claim was received by VA in October 2007. Importantly, the 70 percent rating does not require that suicidal ideation be more than passive in nature and the Board finds probative that the Veteran endorsed having suicidal thoughts during nearly every VA and private examination conducted since the October 3, 2007 date of claim for an increased rating, including at the February 2008 VA examination and during VA outpatient treatment in May 2008. The evidence also shows the Veteran consistently experienced depression and irritability from October 2007 to August 2013. While the evidence does not show the Veteran's depression affected his ability to function independently or appropriately, his depression was continuous during the time period in question and is shown to have resulted in self-isolation and reclusive behavior. Likewise, while his irritability did not result in violence, the Veteran reported being frequently argumentative with others and the evidence shows his irritability resulted in him walking away from jobs during the time period under consideration. There is also evidence of pressured speech as early as February 2008, as well as a difficulty establishing and maintaining effective relationships from October 2007 to August 2013, which, while not specifically contemplated by the 70 percent rating, are symptoms of the type and extent, severity, frequency and/or severity, as appropriate, that suggest deficiencies in work and social functioning during the time period under consideration. In addition to the foregoing, the evidence reflects that the Veteran experienced persistent hallucinations and delusions as early as February 2008 and thereafter, which is listed in the rating schedule as a symptom of the type warranting a 100 percent rating. After resolution of all reasonable doubt in favor of the Veteran, the Board finds that the aforementioned evidence reflects that, from the date of receipt of his increased rating claim on October 3, 2007, tp August 30. 2013, all of the Veteran's symptoms, including those specifically addressed above, resulted in occupational and social impairment with deficiencies in most areas, including work, social relations, judgment, thinking, and mood. In making this determination, the Board acknowledges that the Veteran maintained ownership of and employment with his house painting business, continued to employ people to work for him, and maintained good relationships with his siblings during the time period in question. He also sought community support and social contact with his support groups and spirituality, and sought creative outlets through art and poetry. Nevertheless, the evidence shows the Veteran's ability to maintain even part-time employment and ownership of his business was difficult and erratic as a result of his symptoms, particularly his deficiencies in social relations and mood. In this context, the Board finds probative that a private vocational expert and the August 2013 VA examiner opined that, despite his ownership of and employment with his painting business, the Veteran manifested a serious level of impairment that has prevented him from sustaining competitive or substantial gainful employment since June 17, 1997. See April 2013 statement from T.P.L.; August 2013 VA examination report. The Board also notes that, despite his ability to maintain some level of social functioning, the Veteran did not have any close relationships outside of his family during the time period in question, and the August 2013 VA examiner determined that his relationships with people in Al-Anon and group therapy were superficial. The Board acknowledges that the Veteran's symptoms do not precisely mirror the symptoms enumerated for a 70 percent rating under the general rating formula. For example, there is little or no evidence in the record of obsessional rituals, special disorientation, neglect of personal appearance and hygiene, or an inability to establish or maintain effective relationships. However, after resolving all reasonable doubt in favor of the Veteran, the Board finds that the competent, credible, and probative lay and medical evidence of record reflects that the Veteran's symptoms, especially his hallucinations and delusions, suicidal ideation, depression, irritability, and disturbances in motivation and mood, were of the frequency, severity, and duration to result in occupational and social impairment with deficiencies in most areas, including work, social relations, judgment, thinking, and mood from October 3, 2007, tp August 30. 2013 and, thus, more nearly approximated the level of functioning contemplated by the 70 percent disability rating during that time period. See Mauerhan, supra; Vasquez-Claudio, supra. To this extent, the appeal is granted. In making this determination, the Board has considered whether the increased 70 percent rating is warranted during the one-year look back period prior to the October 3, 2007 date of claim for an increased rating. See 38 C.F.R. § 3.400(o)(2) (2015). However, the Board finds that the decreased level of functioning due to more severe symptoms that are of the type contemplated by the higher, 70 percent rating is not factually ascertainable in the evidence dated prior to October 3, 2007. Indeed, the is no lay or medical evidence dated prior to October 2007 which reflects that the Veteran endorsed hallucinations and delusions, suicidal ideation, depression, and disturbances in motivation and mood or that the symptoms he manifested prior to October 2007 resulted in occupational and social impairment with deficiencies in most areas. See, e.g., December 2007 VA outpatient treatment record. Therefore, the higher, 70 percent rating is not warranted for bipolar disorder prior to October 3, 2007. The Board also finds that the Veteran's bipolar disorder did not meet, or more closely approximate, the criteria for a 100 percent rating from October 3, 2007, tp August 30. 2013. Indeed, at no relevant point did the Veteran manifest such symptoms as persistent impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own names. Moreover, while the Veteran's symptoms were severe, his ability to maintain ownership of and employment with his business and his ability to maintain some level of social functioning, albeit limited and difficult, is evidence that weighs against a finding that his symptoms resulted in or more nearly approximated total occupational and social impairment and were otherwise the type, extent and severity to warrant assignment of the maximum, 100 percent rating prior from October 3, 2007, tp August 30. 2013. In evaluating this claim, the Board has considered the GAF scores assigned from October 3, 2007, to August 2013-54 in February 2008, 53 in May 2008, 55 in July 2009, and 53 in July 2012. According to the DSM-IV, GAF scores from 51 to 60 indicate 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), which does not support the assignment of a higher 70 or 100 percent rating. Nevertheless, as noted, it is the symptoms shown, and not the assigned GAF scores or an examiner's assessment of the severity of a disability, which provides the primary basis for the assigned rating. See 38 C.F.R. § 4.126. As discussed above, the psychiatric symptoms shown from October 3, 2007, tp August 30. 2013, and the occupational and social impairment caused thereby, more nearly approximated the level of disability contemplated by the 70 percent rating. 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 were adequate to rate the disability during the time period under consideration. As discussed above, the applicable rating criteria contemplates the type, nature, and severity of symptoms and level of impairment associated with the Veteran's disability. In particular, the Veteran's symptoms of hallucinations and delusions, suicidal ideation, depression, irritability, suspiciousness, speech problems, depressed mood, and disturbances in motivation and mood are contemplated by the rating criteria. As such, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and the rating schedule is adequate to evaluate his bipolar disorder. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the service-connected bipolar disorder at issue. Further, the Board notes that, pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. However, in this case, the Veteran's bipolar disorder is appropriately rated as a single disability and, as indicated, the Board has fully considered reported functional effects of that disability in evaluating the claim for higher rating for the period under consideration. Under these circumstances, the Board finds that the holding of Johnson is inapposite here. Accordingly, the Board concludes that the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met, and that referral of the claim for extra-schedular consideration is not warranted. 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, the Board finds that, while the criteria for a 70 percent rating for bipolar disorder are met from October 3, 2007, tp August 30. 2013, there is no basis for any further staged rating of the Veteran's bipolar disorder, pursuant to Hart, and a rating in excess of 70 percent must be denied for that time period. In reaching these conclusions, the Board has resolved reasonable doubt in the Veteran's favor in assigning the higher rating from October 3, 2007, to August 29, 2013, but finds that the preponderance of the evidence is against assignment of any rating in excess of the 70 percent assigned for that time period. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v Derwinski, 1 Vet. App. 49, 53-56 (1990). B. TDIU In February 2009, the Veteran filed a formal claim seeking entitlement to a total disability rating due to unemployability caused by his service-connected bipolar disorder, which he asserted prevented him from securing or following a substantial gainful occupation. See February 2009 VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability. Nevertheless, the Board notes that the matter of the Veteran's entitlement to a TDIU may be considered a component of an increased rating claim when such is expressly raised by the Veteran or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, while the Veteran formally raised a claim of entitlement to TDIU by means of a VA Form 21-8940 received in February 2009, the evidence received in conjunction with the increased rating claim on appeal - which was received on October 3, 2007 - raises entitlement to TDIU as of that date, thereby triggering the application of Rice. Therefore, the Board will consider whether entitlement to a TDIU is warranted from October 3, 2007, to August 30, 2013, the date the AOJ awarded the Veteran a 100 percent disability rating for his service-connected bipolar disorder. See March 2014 rating decision. Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Factors to be considered are the veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). An award of a TDIU is predicated upon a claimant being unable to engage in "substantially gainful" employment which has been defined as income not exceeding the poverty threshold for one person. See Faust v. West, 13 Vet. App. 342, 356 (2000). See also 38 C.F.R. § 4.16(a) (2015); Bowling v. Principi, 15 Vet. App. 1, 7 (2001). Indeed, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Veteran's sole service-connected disability is bipolar disorder, which is now rated as 70 percent disabling from October 3, 2007, to August 30, 2013. Thus, for the applicable time period from October 3, 2007, to August 30, 2013, the percentage requirements for award of a schedular TDIU, pursuant to 38 C.F.R. § 4.16(a), are met. The Board must now determine whether the Veteran's service-connected bipolar disorder precluded substantially gainful employment for the time period under consideration. In December 2013, the Director of Compensation and Pension Service reviewed the record and specifically noted the VA examinations of record, as well as the December 2009 letter from Dr. JM and the April 2013 letter from the Vocational expert. After review of the evidence, the Director concluded that the evidence did not show the Veteran's mental condition was so severe that it impacted his ability to work in all environments. He noted the Veteran's work history was noted to be somewhat erratic, but that he was able to maintain self-employment and employ others in his painting business. He then noted that the totality of the evidence did not show the Veteran would be unemployable in all environments, including a solitary and flexible one, prior to August 30, 2013. After careful review of the evidence, the Board finds the December 2013 opinion from the Director of Compensation and Pension Service is outweighed by the other evidence of record, namely the April 2013 letter from the Vocational expert and the August 2013 VA examination report. As addressed above, the private vocational expert reviewed the record and opined that, despite ownership of and employment with his painting business, the Veteran has manifested a serious level of impairment that has prevented him from sustaining competitive or substantial gainful employment since June 17, 1997. See April 2013 statement from T.P.L. In August 2013, the physician who conducted the VA examination agreed and opined that, while the Veteran was employed, his employment was marginal and would not be considered substantial gainful employment, noting that the Veteran's income during 2012 did not come close to the poverty threshold for an individual under 65 with no children, as defined by the U.S. Census Bureau. In this context, the Board notes the evidentiary record contains an earnings summary from the Social Security Administration, which shows the Veteran's taxable income in 2003, 2004, and 2005 was $12,262, $6,153, and $5,525, respectively, all of which is below the poverty threshold for those years, as defined by the U.S. Census Bureau. While the evidentiary record does not contain evidence showing the Veteran's income from 2006 to 2012, the Board notes it is very likely his income has decreased since 2005, particularly given the evidence showing increasingly more severe psychiatric symptoms that affected his ability to work and the evidence showing that his income in 2012 was $2,544. Therefore, the Board finds that, while the Veteran maintained ownership of and employment with a part time painting business from October 3, 2007, to August 30, 2013, his employment was marginal and, thus, not substantially gainful employment, as his income did not exceed the poverty threshold for one person. Moreover, the evidence of record reflects that his bipolar disorder rendered him unemployable in any other capacity, as the Vocational expert and VA examiners determined that it is unlikely the Veteran would be able to work in any other capacity that involved more hours, more interactions with others, or more responsibility. Therefore, after resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's bipolar disorder rendered him unable to obtain and maintain substantially gainful employment for the period under consideration. As such, a TDIU for the period under consideration, from the October 3, 2007 date of claim for an increased rating to August 30, 2013, is also granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER A 70 percent rating for bipolar disorder, from October 3, 2007, to August 30. 2013, is granted, subject to the legal authority governing the payment of compensation. A TDIU, from October 3, 2007, to August 30, 2013, is granted, subject to the legal authority governing the payment of compensation. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs