Citation Nr: 1754516 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-05 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an evaluation in excess of 10 percent prior to May 11, 2017 and in excess of 70 percent thereafter for bipolar 2 disorder (previously rated as adjustment disorder with depressed mood). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1987 to October 1987, from March 1992 to April 1992, and from April 1994 to January 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In July 2017, the Veteran and his wife testified in a videoconference before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. Prior to May 11, 2017 the Veteran's bipolar disorder manifested by mild memory problems, depressed mood, suicidal ideation, difficulty in establishing and maintain effective work and social relationships, inability to establish and maintain effective relationships and suicidal ideation. 2. From May 11, 2017 the Veteran's bipolar disorder manifested by depressed mood, anxiety, suspiciousness, chronic sleep impairment, impairment of short-and-long term memory, flattened affect, circumstantial, circumlocutory or stereotyped speech, speech intermittently, illogical, obscure, or irrelevant, difficulty in understanding complex commands, impaired judgement, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a work like setting, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. CONCLUSIONS OF LAW 1. Prior to May 11, 2017 the criteria for an increased disability rating in excess of 10 percent for bipolar disorder have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9432 (2017). 2. From May 11, 2017 the criteria for an increased disability rating in excess of 70 percent for bipolar disorder have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9432 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in an August 2012 letter. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017). Concerning the duty to assist, the record reflects that the VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service treatment records, private treatment records, and VA examination reports. The Veteran was provided a hearing before a VLJ in July 2017. As there is no allegation that the hearing provided to the Veteran was deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). The Veteran was afforded VA examinations in September 2012, May 2017, and July 2017.. To that end, when VA undertakes either to provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The September 2012, May 2017, and July 2017 VA examination reports reflect that the VA examiners reviewed the claims file, personally interviewed and examined the Veteran, including eliciting a history, conducted in-person examinations with appropriate testing, and answered all relevant questions. The Board finds that the September 2012, May 2017, and July 2017 VA examination reports are thorough and adequate and provide a sound basis upon which to base a decision with regard to the issue of an increased disability rating for bipolar disorder. Based on the foregoing, the Board finds that all relevant documentation has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the issue on appeal. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). II. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25(2016). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14(2017). It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence, which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. 303. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by, or on behalf of, the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Under the General Rating Formula for Mental Disorders, a 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is provided when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is provided when there is evidence that the psychiatric disability more closely approximates 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 inability to establish and maintain effective relationships. Id. A 100 percent rating requires evidence of 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. Id. The use of the term "such as" in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing Veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated 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." It was further noted that" § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Factual Background and Analysis On an August 2012 VA Form 21-4138, the Veteran wrote that he was currently receiving 10 percent for his service-connected disability. He felt that his chronic adjustment disorder had increased significantly and it also impaired his physical health. In September 2012, the Veteran was afforded a VA examination. The examiner indicated that the Veteran had considerable difficulty with his primary support group. However, he did not have problems related to his social environment, with his 3-4 friends. The Veteran reported that his current boss had become a friend. He denied having educational or housing problems. He denied current occupational problems or economic problems. The examiner noted that the Veteran's vulnerability to stressors, included having depressed mood, was an aspect of his personality disorder NOS that was caused by significant development abuse. The examiner noted that the Veteran's symptoms included depressed mood, difficulty in establishing and maintain effective work and social relationships, inability to establish and maintain effective relationships and suicidal ideation. The examiner indicated that the Veteran's level of occupational and social impairment was due to mild or transient symptoms, which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner concluded that the Veteran continued to have an adjustment disorder with depressed mood. His depression arises, however, only when he was unemployed or experiencing interpersonal conflict or loss of a family member. During such times of significant stress, there was an occupational and social impairment. During 2013, the Veteran continued treatment for his mental health condition. A June 2013 VA mental health note documented the Veteran complained that he was depressed and was having mild memory problems. The Veteran reported that he had suicidal thoughts, when he felt he was no use to his wife. However, the examiner noted that the Veteran denied any intent or plan on the suicidal ideation. The examiner indicated that he was just passing thoughts. Notably, during the 2013 mental health visits during the mental evaluations, the Veteran's memory was intact short and long term. His appearance was always neat and groomed. He was oriented to time, place, and manor. He denied any homicidal ideations, hallucinations, and delusions. In May 2017, the Veteran was afforded another VA examination. The Veteran was diagnosed with Bipolar 2 disorder and unspecified personality disorder. The Veteran reported that he was married in 2005 to his current wife. He reported that the marriage was positive. The Veteran currently reported that he had no significant relationships with his family other than his wife. He indicated that the rest of his family had "disowned him and he had no interest in a relationship with any of them." His only current relationship was with his wife. The Veteran denied having any homicidal or suicidal ideations. He also denied having delusions or hallucinations. The examiner indicated that the Veteran's symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, impairment of short-and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks, flattened affect, circumstantial, circumlocutory or stereotyped speech, speech intermittently, illogical, obscure, or irrelevant, difficulty in understanding complex commands, impaired judgement, impaired abstract thinking, disturbances and mood difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a work like setting, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner commented that the Veteran's mood symptoms seemed to range from irritable to depressed. The examiner commented that the Veteran did not display depressed symptoms during the evaluation. The examiner indicated the Veteran's symptoms caused a level of occupational and social impairment with deficiencies in most areas, such as work, school, family, relations, judgment, thinking, and/or mood. The Veteran testified in the July 2017 Board hearing. The Veteran testified that he had panic attacks and hallucinations. He reported before May 11, 2017 he suffered from all the symptoms except suicidal thoughts. He reported that he had lack of appetite, sleeping impairment, had difficulty concentrating, and felt overwhelmed with information and dealing with social trends and technology. The Veteran reported that he did not enjoy doing anything anymore. He indicated that he was somewhat isolated. He testified that he had at least 40 jobs since he got out of service. The Veteran stated that he was not seeing a social worker at the time of the hearing. He further indicated that he only saw someone for the VA examination in 2017 and that he was receiving treatment from the VA in 2011 and 2012. In a July 2017 letter, the Veteran provided a list of symptoms that concerned him. He wrote that the symptoms affected him greatly because of the high frequency they happened. He wrote that it was difficult to get started and sometimes it was because of his lack of ability to focus and get motivated. He wrote that his symptoms included forgetfulness, being easily distracted, sadness, lack of motivation, lack of ability to focus, lack of ability to keep up with technology, feeling overwhelmed, avoiding people or significant tasks that resulted in social interaction. In July 2017, the Veteran was afforded another VA examination. The examiner diagnosed the Veteran with adjustment disorder with depressed mood and unspecified personality disorder. The examiner reported that the symptoms that were attributed to the Veteran's adjustment disorder included transient depressed mood in response to a specific stressor. The examiner indicated that the stressor for the Veteran was unemployment. The examiner commented that he did not agree with previous examiners that the Veteran was bipolar. He noted that the Veteran did not endorse symptoms consistent with bipolar disorder (e.g.., "abnormally and persistently elevated, expansive or irritable mood and abnormally and persistently increased activity or energy"). He denied any suicidal thoughts, homicidal thoughts, hallucinations, or delusions. He denied any periods of time during which he experienced decreased need for sleep, racing thoughts, increased goal directed activity, increased self-esteem or grandiosity, pressured speech, and/or excessive involvement in activities with high potential for painful consequences. He concluded that the Veteran did not meet criteria for bipolar disorder. He further noted that the Veteran had evidence of irritability, particularly in his interpersonal relationships. However, evidence supported that his irritability was related to his personality disorder. He opined that the Veteran's adjustment disorder with depressed mood displayed symptoms of chronic sleep impairment and depressed mood. He opined that his symptoms caused an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal). A. Prior to May 11, 2017 Based on the evidence of record the Board finds that the Veteran's symptomatology prior to May 11, 2017 to August 28, 2012 more nearly approximates the criteria for the currently assigned 10 percent disability rating under Diagnostic Code 9411. 38 C.F.R. § 4.130. The Board recognizes that the Veteran's adjustment disorder with depressed mood and bipolar disorder produces a range of symptoms. These symptoms include mild memory problems, depressed mood, suicidal ideation, difficulty in establishing and maintain effective work and social relationships, inability to establish and maintain effective relationships and suicidal ideation. However, prior to May 11, 2017, there the weight of the evidence does not demonstrate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), and mild memory loss (such as forgetting names, directions, recent events) to warrant a 30 percent rating. While the Veteran endorsed problems with mild memory loss and depressed mood, they were found to be only present when the Veteran was unemployed. The Veteran was afforded a VA examination in 2012. The September 2012 VA examiner opined that the Veteran's level of occupational and social impairment was due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Furthermore, the examiner commented that the Veteran continued to have an adjustment disorder with depressed mood. His symptom of depression, however, was only when he was unemployed, was experiencing interpersonal conflict, or loss of a family member. During such times of significant stress, there was an occupational and social impairment. The 2012 VA examiner reported that he did not have any symptoms related to his adjustment disorder and the Veteran denied being depressed. The Veteran reported that he was able to maintain several relationships and did not report any conflict at his current job. The Veteran received mental health treatment through the VA throughout 2013. Throughout 2013 period, the Veteran reported some mild memory loss, depressed mood, and suicidal ideations. The VA 2013 mental health examiners indicated that the Veteran only suicidal thoughts when he felt he was not contributing to his marriage. Notably, the June 2013 examiner further noted that the Veteran denied any intent or plan on his suicidal thoughts. The examiner commented that the suicidal thoughts were just passing thoughts. During this June 2013 visit, the Veteran was oriented, his process was logical, speech was pressured, and he had depressed mood. Throughout his VA 2012 examination and 2013 VA mental health visits, the Veteran denied any delusions, hallucinations, and suicidal intent. The Veteran was always oriented to time, place, and manor. The Veteran's appearance was always neat, with good hygiene, and well groomed. His thought process was logical, with his judgement being from poor to fair. During this period, mental status examinations repeatedly found the Veteran alert, attentive, and fully oriented. No perceptual disturbances were noted and no unusual thought content was verbalized. His memory was intact during evaluations. During this period, he reported that he had a good relationship with his wife and friends. The Veteran during this period denied panic attacks, sleep impairments, or anxiety. An October 2014 VA primary care note documented that the Veteran was screened for depression and was negative. Based on the above, the Board finds that prior to May, 11, 2017, the Veteran's adjustment disorder with depressed mood and bipolar 2 disorder was manifested by an occupational and social impairment was due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication, which more approximated a 10 percent disability rating. The Board notes that there VA treatment records from 2015 and 2016; however, they are not relevant to the Veteran's claim. B. From to May 11, 2017 Applying the relevant diagnostic criteria to the medical evidence, the Board finds that the Veteran's bipolar disorder does not meet the criteria for a rating in excess of 70 percent from May 11, 2017. See 38 C.F.R. § 4.130, DC 9432. The evidence of record during that time showed the Veteran exhibited symptoms such as a depressed mood, anxiety, suspiciousness, chronic sleep impairment, impairment of short-and-long term memory, flattened affect, circumstantial, circumlocutory or stereotyped speech, speech intermittently, illogical, obscure, or irrelevant, difficulty in understanding complex commands, impaired judgement, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a work like setting, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence, which warrants no more than a 70 percent rating. The evidence during this time period does not indicate that his bipolar disorder more closely approximated the criteria for a 100 percent rating. The evidence reflects the Veteran denied suicidal or homicidal thoughts in the May 2017 and July 2017 VA mental evaluations. Although in the July 2017 hearing, the Veteran testified that he had hallucinations and panic attacks. However, he denied panic attacks or hallucinations during his May 2017 or July 2017 VA examinations. Furthermore, the Veteran testified that he was depressed, however after a review of the medical records he was able to function to care and provide for himself and his wife. The Veteran reported multiply times that he was able to complete household tasks and he maintained activities of daily living. Moreover, during this time period during all examinations and evaluations, the examiners indicated that the Veteran was well groomed and that his hygiene was appropriate. During all examinations and evaluations, the Veteran was pleasant and cooperative. He was never found to be confused and he demonstrated that his memory was intact on all mental status examinations. Also, the Veteran demonstrated that he was alert and oriented to time, place, person, and situation. The Veteran reports that he is unable to maintain relations with others; however, the Veteran reported on multiple occasions that he maintains relationships with his wife. Notably, the May 2017 examiner commented that the Veteran's mood symptoms seemed to range from irritable to depress. The examiner commented that the Veteran did not display depressed symptoms during the evaluation. However, the medical records suggested that his depression symptoms increase when he is unemployed. The examiner during the May 2017 examination diagnosed the Veteran with bipolar 2 disorder and unspecified personality disorder. The May 2017 examiner opined that the Veteran's bipolar symptoms had an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The July 2017 examiner opined that his adjustment disorder symptoms had an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal). Based on the above, the Board finds that from May 11, 2017, the Veteran's adjustment disorder with depressed mood and bipolar 2 disorder was manifested by an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood, which more approximated a 70 percent disability rating. In summary from May 11, 2017, the competent, lay and medical evidence reflects the Veteran's bipolar and adjustment disorder manifested by an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood due to symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, impairment of short-and-long term memory, flattened affect, circumstantial, circumlocutory or stereotyped speech, speech intermittently, illogical, obscure, or irrelevant, difficulty in understanding complex commands, impaired judgement, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a work like setting, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. The frequency and severity of his symptoms do not rise to the level of total occupational and social impairment. Thus, the preponderance of the evidence is against the assignment of a disability rating in excess of 70 percent. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.132 Diagnostic Code 9432 (2016). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an evaluation in excess of 10 percent prior to May 11, 2017 for bipolar 2 disorder (previously rated as adjustment disorder with depressed mood) is denied. Entitlement to an evaluation in excess of 70 percent thereafter for bipolar 2 disorder (previously rated as adjustment disorder with depressed mood) is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs