Citation Nr: 1815289 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 12-27 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased evaluation in excess of 70 percent disabling for Bipolar Disorder (previously Dysthymia with Generalized Anxiety Disorder and Panic Attacks). 2. Entitlement to service connection for migraine headaches, to include as secondary to bipolar disorder. 3. Whether the Veteran's Notice of Disagreement (NOD) was timely filed to an earlier effective date for total disability based on individual unemployability (TDIU). 4. Entitlement to TDIU for the period prior to August 23, 2007. REPRESENTATION Veteran represented by: Ralph J. Bratch, Attorney at Law ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel INTRODUCTION The Veteran had active duty service in the U.S. Navy from June 1991 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision issued by the Regional Office (RO) in Los Angeles, California. Jurisdiction is currently with the RO in Pittsburgh, Pennsylvania. The Veteran was scheduled for a travel-board hearing in March 2017; however, the Veteran withdrew his request for a hearing in correspondence dated January 2017. The Board notes that the Veteran has a separate appeal with regard to the issue of whether his Notice of Disagreement (NOD) was timely filed to an earlier effective date for TDIU. Although the case has not been certified to the Board, of record is a February 2013 Notification Letter rejecting the Veteran's NOD. The Veteran subsequently timely filed an NOD to the Notification Letter. Additionally, a Statement of the Case (SOC) and timely substantive appeal are of record. Therefore, the Board has retained jurisdiction of this case and the claim has been decided herein. See 38 C.F.R. § 19.35 (VA Form 8, Certification of Appeal, is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue). The issues have been recharacterized on the title page accordingly. FINDINGS OF FACT 1. The Veteran's bipolar disorder (previously Dysthymia with Generalized Anxiety Disorder and Panic Attacks) manifested to a degree of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and mood, but not total occupational and social impairment. 2. The Veterans migraine headaches are not etiologically related to service nor are they proximately caused by his bipolar disorder. 3. The Veteran's NOD was filed timely on January 16, 2009. 4. For the period prior to August 23, 2007, the Veteran's psychiatric disorder rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 70 percent for bipolar disorder (previously Dysthymia with Generalized Anxiety Disorder and Panic Attacks) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9432, 9433 (2017). 2. Service connection for migraine headaches, to include as secondary to bipolar disorder, is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310 (2017). 3. The Veteran filed a timely NOD to a December 2008 Notification letter granting TDIU effective August 23, 2007. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302 (2017). 4. For the period prior to August 23, 2007, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was satisfied by way letters sent in May 2005 and April 2006 to the Veteran that fully addressed all notice elements. The letters were sent prior to adjudication and informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini, 18 Vet. App. at 112. Additionally, the Veteran has not raised the issue of improper notice; therefore, the Board finds that the VCAA duty to notify was fully satisfied as to the Veteran's claim. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA has fulfilled its duty to assist the Veteran. Service treatment records, private treatment records identified by the Veteran, and VA medical treatment records, have been obtained. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Additionally, VA examinations were conducted in March 2007, January 2008, and March 2014. The examiners made all required clinical findings and provided sufficient information. 38 C.F.R. § 3.159 (c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Thus, the Board finds that the examinations and opinions are adequate to adjudicate the Veteran's claims discussed herein. The resulting opinions were based on thorough examinations, appropriate diagnostic tests, and reviews of the Veteran's medical history. Moreover, they contain sufficient information to allow the Board to apply the relevant statutes, regulations, and rating criteria. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Therefore, the VA examinations are fully adequate for adjudication purposes, and VA has met its duty to assist in obtaining VA examinations or medical opinions with respect to the issues on appeal. Increased Rating for Psychiatric Disorders Disability evaluations (ratings) are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2017). Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). The Veteran's bipolar disorder (previously Dysthymia with Generalized Anxiety Disorder and Panic Attacks) has been evaluated as 70 percent disabling for the period on appeal under Diagnostic Codes 9432 and 9433. Diagnostic Codes 9432 and 9433uses the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). Under the General Rating Formula, a 70 percent evaluation is warranted when there is 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The maximum schedular rating of 100 percent is warranted when there is 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a) (2017). The rating agency shall assign an evaluation based on all 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. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b) (2017). Use of the term "such symptoms as" in § 4.130 indicates that the list of symptoms that follows is "non-exhaustive," meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir.2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because "[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology," and because the plain language of the regulation makes clear that "the veteran's impairment must be 'due to' those symptoms," 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." Vazquez-Claudio, 713 F.3d at 116-17. Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), p. 32. Scores ranging from 41 to 50 are assigned when there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 51 to 60 reflect more 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). See 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the DSM-IV for rating purposes). Lower numbers on the GAF scale reflect more severe symptoms; higher numbers reflect less severe symptoms. The Board notes that although the DSM has been updated with a 5th Edition ("DSM-V"), to include GAF scores being dropped due to their "conceptual lack of clarity," the Board notes that several of the Veteran's examinations include the use of GAF scores prior to the update; therefore, the Board will use these scores in the analysis set forth below. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a Veteran or obtained on his behalf be discussed in detail. As the evidence of record is significant, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Bipolar Disorder A factual background of the evidence shows that in June 2004, the Veteran received a personality test for purposes of child custody litigation. Results showed that the Veteran was extremely guarded and self-favorable in his approach to the inventory. Symptoms and personality characteristics determined that the Veteran has a mixed profile including hysteroid, paranoid, and histrionic elements. The examiner explained that the Veteran covers his shortcomings and is suggestible. She further noted that the Veteran tests as extroverted. Further notes indicated that the Veteran has a dissociative lack of self-awareness, low tolerance for frustrations and demands which may lead to sudden angry outburst, and that his anxiety would come in brief episodes. The examiner recommended treatment with anti-anxiety agents. In December 2005 while incarcerated, the Veteran complained of panic attacks that wake him up at night. He reported feeling "stressed" and complained of mental health issues, but denied suicidal ideation. The examiner noted that the Veteran had good eye contact, was calm, and cooperative and seemed concerned about why he was there. The examiner discussed relaxation techniques to use when feeling stressed. However, in January 2006 while incarcerated, the Veteran was placed in a safety-cell after making a suicidal statement. The Veteran denied suicidal ideations and noted "I was just having a bad day this morning...." In July 2006, the Veteran was admitted for hospitalization as being a danger to himself due to depression, with suicidal ideas, flashbacks, and being homeless. The Veteran reported that he was afraid to be by himself, he got confused, and was losing himself. The examiner noted that the Veteran exhibited decreased concentration, memory, depressed mood, anxious affect, and that he was tearful, shaky, and confused. The examiner also noted that the Veteran denied hallucinations and delusions, and that while he presents as suicidal, he was manipulative with his suicidal statement noting "I would rather die than do probation or go to jail." The examiner diagnosed the Veteran with depressive disorder NOS and offered new medications with less side effects, to include Seroquel and Zoloft for depression. The Veteran also requested a transfer to the VA hospital for a psychiatric evaluation. The examiner noted that at discharge, the Veteran appeared cooperative, more goal-directed and clear-thinking, but judgment and insight still appeared to be limited. From January 2007 to June 2007, the Veteran received treatment from a private physician in which the examiner diagnosed the Veteran with PTSD and Borderline Personality Disorder. In a June 2007 mental health questionnaire for the Veteran, the examiner noted that the Veteran presents with a visible degree of hyper-vigilance and arousal, and that he maintained a rigid and defensive posture. The Veteran was highly guarded, mistrustful and suspicious of the intentions of others. The examiner also noted that the Veteran's living conditions have deteriorated; however, he requires little assistance in caring for himself. He is easily frustrated and angered when encountered resistance. The examiner further noted that the Veteran has authority issues and does not work well in structured environments. In March 2007 the Veteran received a VA examination for mental disorders. The Veteran reported that he has never had his own place since leaving the military. He has drifted around the country living in numerous states, and is currently unemployed. The Veteran reported that he previously worked as a cab driver, construction worker, and day laborer, and has had difficulty maintaining jobs due to his severe anxiety disorder. The Veteran reported he likes to go fishing and that he lifts weights and goes to the gym occasionally. The Veteran denied suicidal ideation (SI) at the time, but reported that he has had suicidal ideation in the past and took an overdose of Tylenol in 2006. The Veteran admitted having auditory hallucinations, panic attacks, and severe anxiety which interfere with his daily activities. The examiner noted that the Veteran was well-groomed and cooperative throughout the examination, but that he did appear to be slightly anxious and agitated at the beginning of the interview. The examiner further noted that the Veteran was in moderate emotional distress throughout the examination, tearful intermittently, and appeared depressed. The Veteran was alert and oriented to time, place, and person, and his recent and past memory appeared to be grossly intact. The examiner noted that the Veteran has the ability to maintain activities of daily living (ADLs), there was no memory impairment both to short-term or to long-term memory, no sleep impairment, and there was no obsessive or ritualistic behavior which interferes with routine activities. There appeared to be impairment in impulse control, particularly aggressive impulses that affect his mood. The examiner noted that the Veteran has had difficulty maintaining relationships and maintaining a job for any significant length of time, and frequently, when he gets yelled act by a supervisor, he acts out and becomes aggressive towards the supervisor which has led to his discharge. The examiner diagnosed the Veteran with dysthymia, and generalized anxiety disorder with panic attacks, and noted a GAF score of 55. The examiner opined that the Veteran was in the moderate to severe range of occupational and interpersonal functioning. The Veteran received a VA examination in January 2008. The Veteran reported that he gets panic attacks when people get angry at him, and that he becomes violent. He further reported periods of time when he has hyperactivity for a couple of days with decreased need for sleep. The Veteran reported that he is not receiving any treatment for his psychiatric condition, and over the past year, he has received psychotherapy for his mental condition as often as 1 time per week and the response has been poor. The Veteran reported that after service, his employment included Home Depot for three months and the relationship with the supervisor and co-workers was poor, resulting in him being fired for violent behavior. He reported that he punched a co-worker in the face. The Veteran also reported working at PetSmart for 3 months and that the relationship with his supervisor and co-workers was poor, also resulting in him being fired. The Veteran reported that he is currently not working and has not worked for six years since he was last terminated. The examiner noted that orientation was within normal limits, appearance and hygiene were not appropriate and show signs of neglect. The examiner further noted that the Veteran's behavior was appropriate, affect and mood was normal, and there was no evidence of delusions, hallucinations, obsessional rituals, or suicidal/homicidal ideation. The Veteran's memory was within normal limits. The examiner noted that the Veteran has panic attacks which occur less than once per week. The examiner diagnosed the Veteran with Bipolar II Disorder noting that the old diagnosis of Dysthmia with Generalized Anxiety Disorder and Panic Attacks was an erroneous diagnosis. The examiner assigned a GAF score of 49 and further found that the Veteran was not capable of managing his benefit payments because he is mentally unable to handle the payment prudently. Additionally, the examiner found that the Veteran is unable to establish and maintain effective work/school and social relationships because of his Axis II disorder of Borderline Narcissistic and Antisocial traits. The examiner opined that he has occupational and social impairment with deficiencies in most areas such as work, school, family relations, thinking, judgment, and mood. The examiner supported this conclusion noting that the Veteran has symptoms of impaired impulse control, difficulty in adapting to stressful circumstances and the inability to maintain effective relationships. He further noted that the Veteran has no difficulty understanding commands and appears to pose no threat of persistent danger or injury to self or others. With regard to functional impairment on the Veteran's ability to perform physical and sedentary activities of daily living, the examiner noted that the Veteran has a problem with accepting criticism, with structure and rage in general, that have prevented him from maintaining employment or relationships. In December 2008, a psychiatry attending note showed that the Veteran presented to the Coatesville VAMC for a refill of his medication. The Veteran reported that he was in Pennsylvania visiting with his sister with plans to return to California in January 2009. The Veteran reported that he was running out of his medication, which is prescribed in California. He acknowledged symptoms of anxiety, feeling out of focus, and tiredness which improves when he takes his medication. The examiner noted the Veteran's mood was anxious, and affect appropriate. The Veteran denied suicidal/homicidal ideations, hallucinations, and delusions. The examiner diagnosed the Veteran with dysthymia, anxiety disorder, and PTSD by history, and assigned a GAF score of 60. The examiner renewed the Veteran's prescription and recommended that the Veteran follow-up with VA in California when he returns. In January 2009, the Veteran presented for an appointment with a social worker for an evaluation of competency. The social worker noted that the Veteran was casually dressed in clean appropriate clothing, and neatly groomed. The Veteran reported that he has been living independently in California for over a decade and managing his money by himself without incident. He further reported that he has never missed a rent or car insurance payment. The Veteran described in detail his process of money management noting that he tracks all his bills in a log book, listed in order of priority; crosses them off as he pays them, and lives on what is left over. He reported that he has not had financial difficulty paying his bills until awarded his 100 percent in which he used his large lump sum payment to repay family members. The Veteran explained that he made financial plans based on an increase in service-connected payments which did not happen as expected. The Veteran reported that he would like to leave California to live in Pennsylvania near his family, and that he is currently living with his sister in exchange for household chores such as babysitting and fire-wood chopping while continuing to pay rent in California so as to not put his landlord in a financial bind. The Veteran further noted that he had letters of support from his landlord and family members whom he paid back in California, and that he has been seeing a private psychologist on a weekly basis for a long time. However, the Veteran also reported that he does not see psychiatrists regularly. The attending psychiatrist reviewed the social worker's report, including statements from the Veteran's sister and mother substantiating the Veteran's bill tracking system, and declared the Veteran competent to manage his own money. In December 2010, the Veteran presented to the Portland VAMC requesting assistance with his anxiety. The Veteran reported being seen in the mental health clinic, but that he did not like the provider. The Veteran requested medication for his anxiety, noting that he has not had anything for over a year now, and that he does not feel any differently today than he has for the past year. The examiner reported that the Veteran appears well, cooperative, in no acute distress, speech pressured, and thoughts tangential. The examiner referred the Veteran back to mental health to see a new provider, and did not prescribe new medications. In January 2011, the Veteran requested medications from the mental health clinic of the Portland VAMC. The Veteran was informed that a mental health evaluation would be required, from which he refused. The Veteran requested a transfer of care from the previous doctor he saw. In an April 2011 patient advocate note, the Veteran called requesting medications. The Veteran advised that he has been off his medications since October 2009 and that he has been able to receive medications from other VA facilities. The Veteran expressed a desire to access mental health care, and acknowledged that he would have to be fully evaluated and followed before medications can be considered. Subsequently in April 2011, the Veteran received a mental health evaluation. The Veteran reported being upset at his treatment and that he feels he needs to get his pills. He further reported that being on medication makes his life "more intact," and when he doesn't have his medication, his life is "all over the place." The Veteran reported that he spends time by himself, and that he walks around everywhere. He reported that his brother is an apartment manager, and that he communicates with him and came to Portland because of that connection. He noted that he calls his parents every day and that he has a good relationship with them. The examiner noted that the Veteran was notably tangential, pressured in speech, very energetic, and animated psychomotorically. The examiner further noted that the Veteran's speech was hyperverbal, affect labile with anger and frustration, with no active suicidal/homicidal ideations. In February 2013, the Veteran reported that he feels "the same" after having been taking Quetiapine nightly. He reported that his thoughts are still "all over" but improved since the addition of Quetiapine. The Veteran further reported the inability to focus, and denied paranoia, hallucination, and suicidal/homicidal ideations. The Veteran reported a history of violence and some ill will towards people, but that he has no plan or intent to harm himself or others, and tries to avoid these rages by taking his meds and avoiding contact with people. The Veteran reported that he is okay if he takes his meds, and that he is sleeping better, but noted irritability and racing thoughts, but less so on Quetiapine. The examiner noted that the Veteran's hypomania appeared improved, no pressured speech, and less distractibility. Despite hypomanic symptoms, the Veteran did not display anything that would make him an imminent danger to himself or others. The examiner diagnosed the Veteran with bipolar disorder and assigned a GAF score of 55. In December 2013, the Veteran requested psych meds because he was traveling to Pennsylvania to stay with his family for the month of January. He reported that the meds are helping control his anxiety, but he still feels panicked when he gets around a large group of people. In March 2014, the Veteran received a Disability Benefits Questionnaire (DBQ) for mental disorders at the Portland VAMC. The Veteran reported moving in the area in November 2009, and that he currently resides in a shared residence with roommates in which he has been in this living situation for three years. The Veteran further reported that he is unemployed, he is able to perform all ADLs, and his mental health is stable with his current medication of clonazepam, clonidine, lorazepam, quetiapine, and sertraline, and that he has limited activities where he stays at home and sleeps a lot. The examiner noted that the Veteran exhibited symptoms of depressed mood, anxiety, panic attacks more than once a week, and difficulty adapting to stressful circumstances, including work or a work-like setting. The examiner further noted that the Veteran complained of frequent racing thoughts, and anxiety with panic attacks. The examiner found that the Veteran exhibited occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, and that the Veteran was not capable of managing his financial affairs. In a May 2014 mental health discharge note, the Veteran reported moving to California in June, and that his anxiety has been mostly stable except for recent severe anxiety when he was working in the yard and got dehydrated and passed out. He further reported that his bipolar symptoms have been stable and sleep is stable. The Veteran denied suicidal/homicidal ideations, hallucinations, and noted that he feels that his medications are working and is satisfied with the treatment provided. The examiner noted that the Veteran was linear and coherent, thought process did not include signs of psychotic process, and his mood was stable. Cognition was alert and grossly oriented, and insight and judgment were fair. The examiner reported having worked with the Veteran from July 2013 to present and that the Veteran has declined past referrals to VA groups due to severe anxiety in crowds. In April 2015 during an emergency room visit, the Veteran reported that his anxiety and panic symptoms are generally unchanged, and that he has had at least five panic attacks in the past week. He reported that his attacks are often when other people are around and when something is irritating him. He further reported that he prefers to stay home and that his roommates have noticed an increase in his anxiety level. The Veteran noted that he would be going to California soon to visit a friend with cancer. The examiner noted that the Veteran's eye contact was fair, affect was irritable, and thought process was linear. The Veteran was cooperative with no abnormal movements, and no suicidal/homicidal ideation, delusional content, or obsessions. The examiner diagnosed the Veteran with panic disorder with agoraphobia. A June 2015 medication management note showed that the Veteran reported being concerned about memory problems with the zolpidem. The Veteran reported that his anxiety has improved since starting the Buspirone, which he has been taking since his last visit. He further reported that he continues to take all of his other meds, but he very appropriately recognizes the need to try to "get off meds" now that he is on several. He reported intermittent episodes of irritability and some panic, noting that he had a problem at McDonald's last week when he got angry with staff. The Veteran reported that he still does not like being around people, but that he is generally able to tolerate it better. The Veteran denied any depressive symptoms, and suicidal/homicidal ideation. He reported that he plans to go to California again on July 1st to visit his friend with cancer and will return September 4th. The Veteran requested to have his refills sent to that address while he's there. In October 2016, the Veteran presented to the urgent care complaining of insomnia and anxiety, and noted that he has run out of his medication of Klonopin. The examiner noted that the Veteran has been coming frequently to urgent care and has gotten refills for Klonopin. The examiner educated the Veteran on the process of having to see a psychiatrist on a regular basis to normalize his medications, and that this would be the last medication that he would get in urgent care. The examiner informed the Veteran of the possibility of being admitted for detox from Klonopin. The examiner noted that the Veteran appeared casually and appropriately attired, lethargic, and he presented with poor hygiene. The examiner further noted that orientation was alert and oriented x 3, affect/mood was appropriate and euthymic, thought production was goal-directed, and the Veteran had no thought disorders. The Veteran had poor concentration, poor insight and judgment, and poor impulse control. The Veteran did not exhibit delusions, hallucinations, or suicidal/homicidal ideations. The examiner diagnosed the Veteran with Bipolar Disorder and provided the Veteran with one week of clonazepam until his further appointment in November. The examiner further instructed the Veteran to come back to urgent care if he felt he was in any danger. In November 2016, a Psychiatry Attending Note revealed that the Veteran was seen in urgent care multiple times for anxiety and anxiety attacks. The examiner noted that the Veteran consistently misses appointments and the Veteran explained that he is always travelling. The examiner educated the Veteran on pseudo-addiction, and informed the Veteran that he had a problem with benzodiazepines, in which the Veteran was argumentative and disagreed. The examiner prescribed the Veteran Ativan while in urgent care for extreme anxiety, and also to take home. The examiner encouraged the Veteran to keep his appointments and informed the Veteran that he could not get refills on his medications for the appropriate care if he did not have a steady psychiatrist. Upon examination, the examiner noted that the Veteran denied suicidal/homicidal ideations, and there were no thought disorders present, delusions/hallucinations, or concerns with the Veteran's safety. The Veteran appeared casually and appropriately attired, was argumentative and defensive, alert and oriented x 3, affect was appropriate and mood was anxious. The Veteran's attention, concentration, and memory was intact, but the Veteran exhibited fair insight with poor judgment. The examiner diagnosed the Veteran with Bipolar disorder, anxiolytics and sedative dependence. In reviewing the evidence above and the remaining evidence of record, the Board finds that a higher rating is not warranted at any time during the period on appeal. As mentioned above, a higher rating would require that the Veteran exhibit symptoms of total social and occupational impairment; however, the evidence shows that while the Veteran's symptoms have been severe, his symptoms more nearly approximate the criteria for a 70 percent rating as his symptoms did not totally impair his social and occupational ability, nor were they of the severity, frequency, or duration that would warrant a higher rating. The Board notes that prior to 2007, the evidence is limited as to the Veteran's occupational and social functioning. As mentioned previously, the evidence shows that a personality test was given to the Veteran in June 2004 which, in short, determined that the Veteran was extremely guarded with personality characteristics of hysteroid, paranoid, and histrionic elements. While the examiner recommended treatment with anti-anxiety agents, there is no evidence within the examination that suggest that the Veteran exhibited total social or occupational impairment. Other earlier evidence of record include testimony from the Veteran and his family members who all testified that the Veteran cannot maintain a job for a long period of time due to the Veteran's aggressiveness, his inability to focus, and his inability to get along with people. The evidence shows that the Veteran worked intermittently as a cab driver, in construction, at Pet Smart, and at Home Depot. Social Security records show that the Veteran was employed, albeit in a limited fashion, until 2003. The Board recognizes that various examiners have also noted that the Veteran has had difficulty maintaining a job for any significant length of time due to poor impulse control and due to the Veteran's aggressiveness towards people when being yelled at. The Board acknowledges that the evidence does show a degree of severe impairment in this regard, but not to the level of total impairment. Additionally, the Veteran's occupational impairment alone does not equate to total social and occupational impairment warranting a higher rating. While the Veteran idealized suicide in 2006, the Board finds that the Veteran's suicide ideations was a result of the Veteran's incarceration as evidenced by the Veteran's statement of "I would rather die than do probation or go to jail." Additionally, the examiner noted that although the Veteran presents as suicidal, he was manipulative with his suicidal statement. Further, the Veteran noted that "I was just having a bad day." Other evidence of record shows that the Veteran consistently denied suicidal ideations throughout the remainder of the appeal period, and that his psychiatric symptoms did not rise to the level of total social and occupational impairment. For example, during treatment with a private physician in 2007, the Veteran reported that he requires little assistance in caring for himself. In his March 2007 VA examination, the Veteran reported that he has never lived on his own, and that he lived with a woman from 1995 to 2003. He further reported that he goes fishing and that he goes to the gym occasionally. The examiner noted that the Veteran had the ability to maintain his ADLs, there was no memory impairment, no obsessive or ritualistic behavior, and no sleep impairment. The examiner also found that the Veteran had moderate to severe occupational and interpersonal functioning. During the Veteran's January 2008 VA examination, the Veteran reported panic attacks less than once per week, and that he gets violent when people make him angry. The examiner noted symptoms of impaired impulse control, difficulty adapting to stressful circumstances, the inability to maintain effective relationships, and determined that the Veteran was incompetent to manage his finances prudently. The examiner also assigned a GAF score of 49, indicative of serious symptoms. Alternatively, in December 2008, the Veteran received a GAF score of 60, indicative of moderate symptoms, after the Veteran denied suicidal/homicidal ideations, delusions, and hallucinations, but reported symptoms of anxiety, feeling out of focus, and lethargy. Similarly, after being declared incompetent to handle his finances, the Veteran asserted otherwise during a competency evaluation in January 2009. The Veteran appeared in clean and appropriate clothing, neatly groomed, and explained that he had been living independently in California for over a decade with the ability to manage his money without incident. He further explained his money management process with specific details and offered letters of support from family and his landlord to substantiate his assertions. The Veteran further noted that he wanted to move near his family in Pennsylvania, and that he was currently living with his sister where he would babysit and do other chores in exchange. The attending psychiatrist ultimately determined that the Veteran was competent. The Board notes that the Veteran's assertions of his ability to live independently and manage his own money, coupled with the Veteran's ability to babysit, live with his sister with no problems, and his desire to be near his family, all indicate that the Veteran did not exhibit total social and occupational impairment. Moreover, throughout the appeal period, the Veteran has consistently denied delusions, hallucinations, and suicidal/homicidal ideation, aside from the suicidal statements made in 2006, and his acknowledgement of hallucinations in his March 2007 examination. However, the isolated suicidal statement and one report of hallucinations are not of the frequency or duration necessary that would warrant a higher rating. While the Veteran has consistently endorsed anxiety and panic attacks, the Veteran attributes these symptoms to being around other people or when something irritates him. Additionally, the Board notes that the evidence suggests that the Veteran developed an addiction to his medication causing him to visit the urgent care on numerous occasions with complaints of anxiety, panic attacks, and/or migraine headaches. As noted above, the Veteran was refused medication in November 2016 after it was noted that the Veteran has had a pattern of seeking refills of Clonazepam through urgent care visits at the Coatsville VAMC. When the Veteran was finally examined by a psychiatrist, the examiner determined that the Veteran had a problem with benzodiazepines, and the Veteran was offered admission for detox. Therefore, the validity of the Veteran's reported psychiatric symptoms of anxiety and panic attacks are challenged as it appears the Veteran merely reported these symptoms to obtain medications. Nonetheless, the evidence shows that the Veteran has exhibited moderate to severe psychiatric symptoms throughout the appeal period. Overall, the examiners noted that the Veteran shows symptoms of impaired impulse control, difficulty maintaining relationships, and difficulty adapting to stressful situations, including work or a work-like setting. Other symptoms noted included depression, anxiety, and panic attacks in which none were related to the Veteran's military service. In addition, the Veteran reported panic attacks occurring sparingly such as when people get angry at him. In January 2008, he reported panic attacks occurring less than once a week. Further the March 2007 examiner found that the Veteran's psychiatric symptoms were in the moderate to severe range of occupational and interpersonal functioning, and the January 2008 and March 2014 examiners both found that the Veteran exhibited social and occupational impairment with deficiencies in most areas. Likewise, the Veteran's GAF scores varied to include scores of 49, 55, and 60, indicative of moderate to serious symptoms. Considering the above, the Board finds that the Veteran's psychiatric symptoms did not cause total occupational and social impairment, nor were his reported symptoms of the severity, frequency, or duration that would warrant a higher rating. While the Veteran's symptoms were severe, they did not totally impair the Veteran as the Veteran lived with other individuals for most of the appeal period and maintained a good relationship with his family. The evidence also shows that the Veteran traveled extensively between California, Portland, and Pennsylvania visiting family and friends. Further, while the Veteran does exhibit symptoms of impaired impulse control, the inability to maintain relationships, and the inability to adapt to stressful situations, the Veteran does not exhibit persistent symptoms such as delusions, hallucinations, or suicidal ideations, and his panic attacks are intermittent and not frequent. Moreover, the Veteran's numerous complaints of anxiety were the result of substance dependence as opposed to his underlying psychiatric condition. In conclusion, the Board finds that the preponderance of the evidence is against a finding of an increased rating greater than 70 percent; there is no reasonable doubt to be resolved, and accordingly, the claim is denied. See 38 U.S.C. § 5107 (a); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for Migraines The Veteran seeks service connection for his migraine headaches to include as secondary to his bipolar disorder. After a review of the evidence, the Board finds that service connection is not warranted. The Veteran's service treatment records (STRs) are silent for any complaints, treatment, or diagnosis for headaches. The Veteran's post-service records include the following medical treatment for his headaches. In March 2007, the Veteran had a General Medical Examination in which he reported that he gets headaches three to four times per week which last until he takes Tylenol. He further reported the headaches are never totally disabling and are not associated with trauma in any way. The Veteran denied dizziness, convulsions, memory loss, paralysis, loss of consciousness, change in sensation, or poor concentration. A neurologic examination showed cranial nerves intact, heel/toe/tandem walk was performed adequately, negative Romberg's, and sensory examination was normal throughout. The examiner diagnosed the Veteran with epididymitis non-disabling and noted that the Veteran is in generally good health without significant medical disabilities. In March 2014, the Veteran received a VA examination for his headaches. The Veteran reported having headaches after he left service, but does not know when. He further reported that after leaving service, he did not receive much healthcare until 2008 when he was started on medications for his bipolar disorder. He reported having a headache in the front of his head associated with some dizziness, and that it makes his vision blurry. He further reported his headaches occur about two to three times a week and he uses Sumatriptan 2 to 3 times a week. The Veteran reported pain on both sides of his head, non-headache symptoms, changes in vision, less than one day, and that he has prostrating attacks of migraine headache pain, less than once every two months. The examiner noted an onset of headaches after the Veteran's time in the military, and that his headaches began prior to receiving medications for his mental health conditions which was in 2008. The examiner further noted that the Veteran's headaches have not changed in frequency or severity due to his bipolar medications. The examiner referenced a September 2012 CT scan which was unremarkable and concluded that the Veteran's headaches are not aggravated by the medications the Veteran takes for his bipolar disorder, and that the headaches are not due to or related to his time in service. The examiner supported his conclusion noting that the Veteran began having headaches after leaving service much earlier than when he began taking medications for his bipolar disorder. Also in March 2014, the Veteran was seen in the emergency department with a complaint of a headache on the left side of his head with blurry vision that has been present for three days. The Veteran was given a toradol injection and recommended that he follow-up with his regular doctor. In April 2015, the Veteran presented to the emergency room with a complaint of headaches for two weeks and dizziness. The Veteran reported that he "passed out this morning." The following day, the Veteran received a neurology consult for his migraines. The Veteran reported having had migraines for the past twenty years since leaving service and that they occur in the left temporal, right temporal, or can alternate in between. He reported that his headaches have been associated with slurred speech, photophobia, dizziness, generalized weakness, blurry vision, and loss of consciousness in the past. He further reported that he gets headaches regularly two to three times a week, and is not on any prophylactic medication, but he does have sumatriptan and naproxen that he tries to take sparingly when he gets headaches. The Veteran reported that his most recent episode of headaches has been going off and on for the past two weeks. The examiner recommended a one week follow-up to discuss a prophylactic regimen and an MRI. The Veteran's MRI results revealed no acute intracranial abnormality. On November 13, 2016, the Veteran presented to the emergency department complaining of a migraine and reporting that he ran out of medications. The Veteran requested a toradol injection and a refill of his clonazepam, in which he was given both; however, the examiner noted that the emergency room would not be providing any more refills to the Veteran. In reviewing the evidence, the Board finds that service connection is not warranted on a direct or secondary basis. Although the Veteran has a current diagnosis of migraine headaches, the Veteran's STRs are silent as to any complaints, treatment, or diagnosis of headaches while in service, and the Veteran himself indicated in his March 2007 VA examination that his headaches began after service. The record is silent as to any evidence that shows the Veteran's migraines began or are causally related to his military service; therefore, service connection is not warranted on a direct basis. With regard to whether service connection is warranted on a secondary basis, the Board finds that the evidence does not support this contention. The Veteran contends that his migraines are caused by his bipolar disorder and/or medications he takes for his bipolar disorder; however, the examiner in his March 2014 examination found that the two conditions are unrelated as the Veteran's migraines began after service and prior to receiving medications for his bipolar disorder. The examiner further found that since taking medication for his bipolar disorder, the Veteran's headaches have not changed in severity or frequency. Additionally, the Veteran himself reported that he began medication for his bipolar disorder in 2008, while the evidence shows complaints of headaches as early as 2005. Further, the Veteran's CT scans and MRIs have been negative for any type of intracranial abnormality. Moreover, the evidence of record is significant for various trips to the emergency department with complaints of headaches and requests for toradol injections and clonazepam which seems to show evidence of drug-seeking behavior. This notion is further supported by a November 18, 2016 nurse practitioner entry which noted a pattern of urgent care visits and a denial of further refills until the Veteran was examined. Additionally, on November 28, 2016 in a psychiatry attending note, the examiner educated the Veteran on pseudo-addiction and ultimately diagnosed the Veteran with bipolar disorder, anxiolytics, and sedative dependence. As a result of these findings, like the Veteran's psychiatric condition, the evidence suggesting drug dependence challenges the validity of the Veteran's many reports of headaches. Therefore, as the evidence does not show that the Veteran's headaches are causally related to service or proximately caused by his bipolar disorder, the preponderance of evidence weighs against the claim, and service connection on a direct and secondary basis is denied. TDIU Timeliness of Notice of Disagreement (NOD) The Veteran contends that he filed a timely NOD to the effective date of TDIU granted in the September 2008 rating decision. The Board notes that except in the case of simultaneously contested claims, a claimant, or his or her representative, must file a NOD with a determination by the agency of original jurisdiction within one year from the date that the agency mails notice of the determination to him or her. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302 (a). In this case, the RO granted TDIU in a rating decision dated September 2008, and a Notification Letter was mailed on December 19, 2008. While the RO found that the Veteran's February 25, 2010 correspondence served as the Veteran's untimely NOD, the Board notes that this correspondence was merely a status letter as to the Veteran's previously submitted NOD. The record shows a previous letter from the Veteran's representative dated January 7, 2009, and date-stamped by VA on January 16, 2009 titled "Notice of Disagreement with Rating Decision of September 9, 2008." The letter specifically notes that the Veteran disagrees with the September 9, 2008 rating decision granting individual unemployability with the established effective date of August 23, 2007. The Board notes that a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a NOD. While special wording is not required, the notice of disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201. Here, the letter was specific in stating that the Veteran disagreed with the RO's effective date for TDIU, and VA acknowledged receipt of the letter well within the year period for filing. Therefore, as the letter constitutes a valid NOD, the Board finds that the NOD was timely filed and received by VA within the one year period. Merits Claims for TDIU are considered claims for an increased rating, thus the determination of the effective date for TDIU claims is the date the claim was received or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o) (2017); 38 U.S.C. § 5110(a), (b). In essence, the Veteran has contended that he is unemployable due to his psychiatric condition since the date he filed his claim for that condition, thus, the date of claim for TDIU is May 21, 1999. The RO determined that entitlement arose on August 23, 2007, the currently assigned effective date, and thus, as the later of the two dates, that date was assigned. Accordingly, the proper effective date in this case will turn on when entitlement arose for TDIU, and if it arose prior to August 23, 2007. Based on the evidence, the Board finds that the Veteran was unable to secure or follow substantial gainful employment for the duration of the appeal period, beginning at least on May 21, 1999. To determine when entitlement arose, the Board must look at the criteria for the award of TDIU. TDIU is granted where service-connected disabilities are so severe that it is impossible for the Veteran to secure or follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration is given to the Veteran's level of education, special training, and previous work experience. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is currently rated at 70 percent disabling for his bipolar disorder; therefore, the Veteran's rating for his service-connected disability meets the threshold criteria for consideration of a TDIU. 38 C.F.R. §§ 4.16 (a). As mentioned previously, the Veteran was granted TDIU effective August 23, 2007; as such, the Board's analysis will focus on the time period prior to this date. Additionally, the Veteran has been rated at 70 percent disabling since May 21, 1999, therefore, the Board may decide the matter for that time period in the first instance. As noted in previous discussion, the evidence shows that the Veteran worked intermittently as a cab driver, in construction, at Pet Smart, and at Home Depot. Social Security Administration records show that the Veteran was employed until 2003, although the Veteran has reported not having worked since he was last terminated in 2002. In 1999 statements, and in later testimony from 2000 and 2002, the Veteran and his family members testified that the Veteran cannot maintain a job for a long period of time due to the Veteran's aggressiveness, his inability to focus, and his inability to get along with people. The Veteran's mother reported that the Veteran would get into fist fights at his jobs and ultimately, would get fired. In the April 2000 hearing, the Veteran's brother described the Veteran as a "raving lunatic" noting that the Veteran cannot be around people at all. The Veteran's brother also noted that he worked with the Veteran in construction and that the Veteran could not focus on one thing for very long as he gets distracted. He further noted that if someone looks at him the wrong way, "he will literally lose his mind." The Veteran's girlfriend also testified that the Veteran cannot "hold down a job" and that he cannot work with people. The Board notes that lay witnesses such as the Veteran's family members are competent to report symptoms and the Veteran's behavior. However, lay testimony must be considered and weighed against the other evidence of record. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In doing so, the Board finds the statements are credible as they are consistent with the evidence of record. The Board notes that the examiner from the Veteran's personality test in 2004 noted that the Veteran had a low tolerance for frustrations and demands which may lead to sudden, angry outbursts. Similarly, in January 2007, a private physician found that the Veteran is easily frustrated and angered when encountered resistance. The examiner further found that the Veteran has authority issues and does not work well in structured environments. Further, in March 2007, the examiner found that the Veteran has had difficulty maintaining relationships and also maintaining a job due to becoming aggressive towards the supervisor after being yelled at. Therefore, the Board finds that the lay and medical evidence consistently shows that the Veteran's aggressive and violent behavior, impaired impulse control, and his inability to maintain relationships and adapt to stressful situations prevented the Veteran from obtaining substantial gainful employment. The Board has considered that the Veteran did not receive medication for his diagnosed bipolar disorder until 2008; therefore, the Veteran's psychiatric would likely be uncontrolled; thus, resulting in aggressive behavior. Moreover, the Board notes the Veteran's work history has been intermittent, as detailed above, and his educational history includes completion of high school, with special education classes for History and English. The Veteran also attended a trade school for the last 2 years of high school studying diesel mechanic work. Having considered the evidence, the Board finds that the Veteran's service-connected psychiatric disorder rendered him unable to obtain or maintain substantially gainful employment at least from March 21, 1999, and thus, an earlier effective date is warranted. Accordingly, a TDIU is granted effective May 21, 1999, subject to the laws and regulations governing the payment of benefits. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased evaluation in excess of 70 percent disabling for Bipolar Disorder (previously Dysthymia with Generalized Anxiety Disorder and Panic Attacks) is denied. Entitlement to service connection for migraine headaches, to include as secondary to a bipolar disorder is denied. The Board having determined that an NOD was timely filed in response to an earlier effective date for TDIU, the benefit sought on appeal is granted. Entitlement to an effective date of March 21, 1999, for the award of TDIU, is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs