Citation Nr: 1647204 Decision Date: 12/19/16 Archive Date: 12/30/16 DOCKET NO. 13-25 432A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 70 percent for service-connected bipolar disorder with major depressive disorder (psychiatric disability) prior to June 11, 2015. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and nephew ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1961 to January 1965. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Pittsburgh, Pennsylvania Department of Veteran Affairs (VA) Regional Office (RO) that continued a 70 percent rating for the Veteran's psychiatric disability. A subsequent October 2015 rating decision increased that rating to 100 percent from June 11, 2015. Thus, the rating from that date is moot and is not before the Board. In June 2016, a Central Office hearing was held before the undersigned; a transcript of the hearing is associated with the record. The matter of entitlement to special monthly compensation (SMC) was also previously on appeal, but the Veteran expressly limited his appeal to the matters listed above in his September 2013 substantive appeal. Therefore, the SMC claim is not before the Board. FINDINGS OF FACT 1. By November 2015 correspondence and at the June 2016 hearing, prior to the promulgation of a decision in the matter, the Veteran indicated he wished to withdraw his appeal seeking a TDIU rating; there are no questions of fact or law remaining in these matters. 2. From June 17, 2010, the evidence shows that the Veteran's psychiatric disability has been manifested by symptoms such as disorientation of time and place, auditory hallucinations, paranoid reactions and delusions, manic and depressive phases, memory lapses, unstable affective emotional functioning, panic, inability to maintain organizational structure, and incoherent cognition that may reasonably be interpreted as consistent with total occupational and social impairment, as contemplated in the relevant rating criteria. CONCLUSIONS OF LAW 1. Regarding the claim of entitlement to a TDIU rating, the criteria for withdrawal of an appeal by the Veteran have been met; the Board has no further jurisdiction in this matter. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). 2. A 100 percent rating is warranted for the Veteran's service-connected psychiatric disability from June 17, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.130 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits, and applies to the instant claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Inasmuch as this decision dismisses the matter involving a TDIU rating, there is no reason to belabor the impact of the VCAA on the matter; any notice or duty to assist omission is harmless. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA's duty to notify was satisfied by June 2011 and December 2011 letters. He has had ample opportunity to respond and has not alleged that notice was less than adequate. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In addition, the Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. A VA examination was conducted in June 2015 in conjunction with this claim, and the report of that examination reflects consideration of the record and examination of the Veteran. Although no VA examination was conducted during the specific period remaining on appeal (prior to June 11, 2015), the Veteran has submitted sufficient private medical evidence to discern an accurate disability picture for his psychiatric concerns during that time. Moreover, it would be impossible for VA to remedy that lack of examination during that time. Critically, the Veteran has not alleged any duty to assist deficiency, or alleged that pertinent records remain outstanding. Moreover, the Board notes that the only treatment the Veteran receives is from non-governmental providers, and the ultimate burden is on the Veteran to ensure that pertinent records of such treatment are submitted for consideration. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). Therefore, and particularly in light of the largely beneficial disposition of this matter, the Board finds that VA's duty to assist is met. The Board notes that it has reviewed all of the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Withdrawn Claim for TDIU The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C.A. § 511(a) is subject to a decision by the Secretary. 38 U.S.C.A. § 7104. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn by the appellant or by his authorized representative at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204. A withdrawal of an appeal is effective when received. 38 C.F.R. § 20.204(b)(3). Here, the Veteran perfected an appeal seeking a TDIU rating, but indicated both in November 2015 correspondence and at the June 2016 hearing that he wished to withdraw that appeal. As such, the Board finds that there remains no allegation of error in fact or law for the Board's consideration, it has no further jurisdiction in this matter, and the appeal thereof must be dismissed. Increased Rating The Veteran contends that his psychiatric disability causes significant impairment due to symptoms including panic, depression, and disorientation to time and place that warrants a rating in excess of 70 percent. Legal Criteria In a claim for increase the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating the level of disability of an increased rating claim begins one year before the claim was filed. As the instant claim for increase was received on April 5, 2011, the period for consideration is from April 5, 2010 to the present. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Veteran's PTSD is rated according to the General Rating Formula for Mental Disorders. The only rating higher than 70 percent under the relevant criteria is the maximum 100 percent rating. Under those criteria, 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board is also precluded from differentiating between symptoms attributable to PTSD and those associated with nonservice-connected mental health disorders absent clinical evidence clearly showing such distinction. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Effective August 4, 2014, VA also amended the regulations regarding the evaluation of mental disorders by removing outdated references to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). The amendments replace those references with references to the more recently issued fifth edition of the DSM (DSM-5). Under the DSM-5 criteria, clinicians do not typically assess Global Assessment of Functioning (GAF) scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. As the Veteran's appeal was certified after August 4, 2014, GAF scores will not be discussed in the analysis below. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Factual Background At the outset, the Board notes that there have been several psychiatric diagnoses noted in the record, including some not explicitly noted as service-connected and personality elements (which are typically not compensable). However, there is no clinical evidence that the symptoms or impairment he suffers can be distinguished between service-connected and nonservice-connected sources. In fact, the weight of the evidence indicates the Veteran's various problems are either intertwined with or otherwise associated with his service-connected bipolar disorder. Thus, under Mittleider, the Board will consider the entirety of the Veteran's psychiatric disability impairment in the factual background and analysis that follows. Notably, this also affords him the most sympathetic and broadest possible scope of review. A June 2010 private psychiatrist's letter (from a Dr. Olik) indicates the Veteran was under inpatient psychiatric care from May 2008 to June 2008. The discharge diagnosis was depressive episode with accentuated personality in remission. Follow-up care was provided at one-month intervals. Discrete deficits were noted in the "space-time perception" with negative consequences in the scope of activities of daily living (ADLs) that could not be deemed age-appropriate onset of mnestic-cognitive deficits, especially since, apart from that, no further abnormal psychiatric parameters could be demonstrated with certainty. A March 2011 letter from Dr. Olik again confirms the Veteran underwent "stationary" psychiatric and neurological treatment from May to June 2008. The diagnosis at the time was a temporary diminishing depressive episode with accentuated personality. He was then treated at monthly intervals, and during that time displayed a "discrete deficiency of orientation within the time-space frame with corresponding negative consequences in the context of everyday life activities" that could not be related to age-appropriate onset of mnestic-cognitive deficiencies (i.e., dementia). A July 2011 letter from Dr. Olik essentially duplicates the June 2010 and March 2011 letters. However, it added that, aside from his depressive episode, the Veteran had mostly adequate affective-emotional modeling with strong fluctuations and recurring states of depression, feelings of loneliness, and failure. There was no significant content-related or formal thought disorder, deficit of motivation and psychomotor function, or impulse control deficit noted at the time. An August 2011 statement from a Dr. Zehner indicates the Veteran reported a history of affective bipolar psychosis with a subdepressive episode. At the time, he was not being treated or taking any medication. He reported that he was admitted for psychiatric care in 2008 at a psychiatric unit. The doctor noted the discharge report indicated he was admitted for a depressive episode. The Veteran reported that he had experienced multiple manic as well as depressive phases, including four prior attempted suicides, with the most recent in 2008. He also reported experiencing intermittent acoustic hallucinations during which he heard voices and endorsed heightened paranoid reactions. Dr. Zehner's examination noted the Veteran was awake, conscious, fully oriented, and approachable. He freely provided information. His mood was somewhat depressed, but he appeared to have "lighted in the interim." Affectation was weak and animation did not seem significantly reduced (though his history alluded to manic phases and euphoric moods, increased animation, grandiose ideas and reduced need for sleep, and depressive phases with reduced mood, feelings of inadequacy, powerlessness, and feelings of guilt). His formal thought processes were orderly, albeit long-winded. At the time, there was no indication of thought or perceptual disturbances. Attentiveness was slightly reduced, however. Memory was not significantly reduced. At the time he had no indication of acute thoughts of suicide. In January 2012, the Veteran said he experienced a flashback while in the waiting room before a psychiatric examination in July 2011 that related to his military service. He said that for over forty years, he had been waging an internal battle "against all and every influence in my surroundings which could trigger acute crisis and severe reoccurrence of mental disorders and syndromes with accompanying depression." Coping had become more difficult since his last acute crisis in 2008. He said he had experienced time and space disorientation almost daily, which caused further extreme depression. He also reported memory lapses and symptoms of paranoid schizophrenia that often cause him great discomfort and fear. Specifically, he said he senses that people nearby bear ill will towards him and that he heard their voices, feelings, and the "qualms of their disparaging remarks and prejudices towards [him]." A February 2012 addendum from Dr. Zehner indicates the Veteran's affective bipolar psychosis with subdepressive episode affected his ability to function socially as well as professionally, BUT varied according to the severity of the "respective illness episode." Dr. Zehner noted that he had reviewed the discharge report from his last psychiatric confinement at the Specialty Hospital for Psychiatry and Neurology and numerous documented discussions between the Veteran and medical professionals. He noted the subdepressive episode diagnosed at the time of prior examination was most likely related to his affective bipolar psychosis. In August 2013, the Veteran was mildly sullen and mildly dysphoric. However he communicated clearly. The following month, Dr. Olik provided a letter certifying that the Veteran was diagnosed with a latent panic disorder (within bipolar disorder) on September 3, 2013. Dr. Olik's provider notes indicate the Veteran called and was in a panic and anxious over his appeal. However, he was fully oriented and conscious at the time. The note does indicate his affective emotional level was unstable and his thought content was mildly incoherent (though without clear suicidal tendencies). An addendum later that month indicated the latent panic disorder previously diagnosed had worsened, and mental competence to perform was severely impaired. Near the end of September 2013, private records indicate the Veteran felt overwhelmed due to persisting stress with "authorities." He hardly had an appetite or thought of anything besides his appeal. In a contemporaneous statement, the Veteran emphasized that his monthly consultations should reveal time-space disorientation which acted as a detriment to his daily functioning. On an October 2013 house visit, the Veteran said he was "not well" and exhausted. He reported orientation problems were increasing with respect to place and time, with negative consequences for activities of daily life. He was not on medication. He reported worsening vision due to overexposure to his computer screen. The provider noted his electricity was about to be cut off in November and the apartment had no organized structure (though it was clean). A note later that month indicates the Veteran reported feeling "severe mental stress." August 2014 notes from Dr. Olik indicate the Veteran had recently undergone an ordeal with tenants that he could only remove after several extensive efforts. This had left him somewhat traumatized and irritated. December 2014 notes indicate the Veteran reported another incident with a troublesome tenant, and dealing with it required a lot of energy. In February 2015, the Veteran said he felt humiliated and almost traumatized because authorities had been "reportedly making trouble." His social benefits had been cut mistakenly, among other problems, and the continuous battle with respect to his chronic psychiatric disease was "taking too much energy." In March 2015, Dr. Olik noted the Veteran was more composed and organized, but "not always adequate on an affective emotional level." Subsequent notes indicate the Veteran had prior psychiatric crises even before his May 2008 hospitalization. The Veteran continued to have regular therapeutic sessions every one to two months that repeatedly found "noteworthy mental vulnerability and instability that influence the psychiatric performance parameters," including "mnestic-cognitive, affective emotional, [and] competence of planning and structuring." A March 2015 letter indicates that regular therapy sessions repeatedly showed abnormal emotional vulnerability and instability which influenced his psychiatric performance parameters to varying degrees. Later that month, private treatment notes indicate the Veteran was mildly driven and restless with noteworthy mnestic cognitive deficits (because they were more marked than usual). He reported he was meant to go for a medical evaluation on April 20, 2015, but did not feel able to do that due in particular to increasing orientation deficits in time and place. In an April 2015 letter, Dr. Olik certified that the Veteran had been suffering for more than ten years from increasing latent orientation deficits, especially with respect to situation and time. He indicated the "independent performance of longer trips and rides" was becoming "increasingly problematic" with "sometimes unknown ending." A May 2015 record notes that a recent accident and injury of his left arm had caused additional mental irritation which led to a "manifest instable affective emotional condition." The Veteran wanted to apply for rehabilitation on an inpatient basis, to include psychotherapy, and asked for an urgent home visit since he was mentally stressed and had symptoms of panic. On the requested home visit, the provider noted the Veteran had an "inadequate affective emotional level" and that his cognitive level was "jumping, but not coherent." However, there was no sign of acute endangerment to himself or others. At the June 2016 hearing, the Veteran contended that medical documentation in the claims file should show that a 100 percent rating is warranted back to the date of claim (April 5, 2011). He said he was compelled to file a claim for increase because he had a strong disorientation about time and space that had been "sort of a problem" for much of the last eight years. He indicated that his psychiatrist should have confirmed that for the last eight years the Veteran had been experiencing disorientation problems. The Veteran's nephew testified that the Veteran could not navigate or get around. He indicated that in 2010 he moved to Arizona, and his uncle visited him. He said he noticed that during that time, his uncle was disoriented and had to be hospitalized because of a "nervous breakdown." The Veteran indicated he had been experiencing a lot of bipolar symptoms with suicidal tendencies. His nephew added that he had to navigate for them while traveling to the hearing because the Veteran had a tendency to wander and would not stay oriented to where they were, which he felt was consistent with the way the Veteran behaved during his 2010 crisis. Analysis As a matter of law, the Veteran is fully competent to report much of the symptomatology and impairment considered when evaluating psychiatric symptoms, as they are often evaluated based on subjective report, and are all subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Furthermore, given the consistency of the Veteran's testimony, both internally and with Dr. Olik's notes over the years, the Board can find no reason to question the veracity of the Veteran's statements in the record. The evidence fairly consistently shows, from as early as June 2010, that the Veteran has had a number of troubling psychiatric symptoms indicative of severe impairment. While there is no indication that he is necessarily grossly inappropriate, in persistent danger of hurting himself, grossly unable to communicate, or unable to maintain minimum personal hygiene, Mauerhan specifically states that the analysis should not focus on matching the specific symptoms found or listed in the criteria, but rather the frequency, severity, and duration of the symptoms and impairment contemplated by the 100 percent rating. See also 38 C.F.R. § 4.126(a). Still, it is notable that disorientation to time and place is very clearly the most pressing concern, as such symptom is specifically noted in the criteria for a 100 percent rating, and therefore wholly consistent with the disability picture contemplated therein. Furthermore, the Veteran has presented competent and credible lay testimony that, at one point during the period on appeal, he was experiencing such disorientation daily. The Board finds that the gravity of debilitation resulting from such frequent disorientation to time and place is readily apparent; thus, on its face, such pathology could quite easily and reasonably cause one to be totally occupationally and socially impaired. Dr. Olik's records also specifically note that, particularly toward the end of the appeals period, his disorientation made independent travel increasingly problematic. Such finding is significant because loss of independence in a variety of functional spheres is a critical common thread underlying the disability picture contemplated by the 100 percent criteria. In addition to his disorientation, there is also evidence of cognitive deficits threatening his ability to function independently (i.e., manic-depressive episodes, strong fluctuations in mood and recurring depression, unstable emotional functioning, memory lapses, and incoherent thoughts or cognition). Of particular significance is the fact that Dr. Zehner noted auditory hallucinations and increased paranoid reaction. Moreover, the Veteran later expounded upon that by specifically reporting that he often felt that people nearby bore "ill will" towards him, and that he could hear their feelings and "the qualms of their disparaging remarks and prejudices"). This suggests that the reported "paranoid reactions" and hallucinations may, at times, tread the line between reality and delusion. Furthermore, Dr. Olik's October 2013 house visit notes indicated the Veteran was on the verge of having his electricity shut off by authorities and that, while clean, his apartment had no discernable organizational structure. This suggests some degree of financial incompetence or difficulty managing his affairs (i.e., activities of daily living) and incoherence of thought processes or cognition (i.e., logical disorganization). Such findings are consistent with explicit notations throughout the record of "greatly impaired mental competence" or general incoherence. Significantly, the June 2015 examination report that formed the basis for the October 2015 grant of a 100 percent rating specifically notes that the Veteran is technically competent to manage his own affairs and finances, but often requires help, suggesting his level of functioning was not markedly different in June 2015 (when VA has already conceded he met the criteria for a 100 percent rating) than previously. Considering the above in addition to the gross orientation deficits noted above, the Board finds that-during the period on appeal-the evidence is at least in relative equipoise as to whether the Veteran's psychiatric disability caused impairment consistent with that contemplated by a 100 percent rating. In so finding, the Board acknowledges that the Veteran maintained a dogged pursuit of his appeal and proactively sought treatment for his problems, indicating retention of some functioning. However, one need not be wholly dysfunctional to warrant a 100 percent rating under the schedular criteria, and nothing in the regulations would support such an assertion. Moreover, it would directly contradict VA's implicit concessions here-awarding a 100 percent rating based on the June 2015 examiner's report despite his finding of technical competent noted above inherently accepts that one may be totally occupationally and socially impaired while retaining some functioning. As noted in the legal criteria set out above, VA's governing regulations provide for the preservation of an effective date as early as one year before the date a claim for increase is received. 38 C.F.R. § 3.400(o)(2). This is intended to allow Veterans the flexibility to maintain an earlier effective date without having to file immediately when a disability worsens. In reviewing this case, the Board already noted that the notations of gross disorientation to place and time date back to June 2010 (specifically, June 17, 2010). As such, the Board finds that a 100 percent rating is warranted from that date. However, as there is simply no substantive evidence pertinent to a psychiatric disability dated between April 5, 2010 and June 17, 2010, a higher rating prior to June 17, 2010 is not warranted. Extraschedular Considerations The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis for the above disabilities. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is, thus, found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. Here, the Veteran's psychiatric disability is rated based on symptoms such as impairments of memory and thoughts, delusions, hallucinations, disorientation, mood swings, and their associated functional impairment. The Veteran has not alleged or presented with any symptoms or impairment that present a unique disability picture not contemplated by the rating criteria. Therefore, those criteria are wholly adequate, and referral for extraschedular consideration is not warranted. Accordingly, resolving all remaining reasonable doubt in the Veteran's favor, the Board finds that a 100 percent rating is warranted for the Veteran's psychiatric disability from June 17, 2010 (but no earlier). To the extent that the Board finds a higher rating is not warranted prior to that date, the preponderance of the evidence is against the Veteran's claim, and the benefit of the doubt rule does not apply. ORDER The appeal seeking a TDIU rating is dismissed. A 100 percent rating is warranted for the Veteran's psychiatric disability from June 17, 2010 (but not earlier). ______________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs