Citation Nr: 21002823 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 17-23 860 DATE: January 15, 2021 ORDER Entitlement to an effective date earlier than July 10, 2015, for the reinstatement of the 10 percent evaluation of service-connected status post right ankle subtalar joint arthrodesis (hereafter referred to as a "right ankle disability") is dismissed. Entitlement to a disability rating in excess of 10 percent for service-connected right ankle disability is dismissed. Entitlement to an effective date earlier than February 19, 2015, for the 70 percent evaluation for service-connected bipolar I disorder is denied. Entitlement to an effective date earlier than February 19, 2015, for the award of total disability based on individual unemployability (TDIU) is denied. Entitlement to an effective date earlier than June 8, 2009, for the award of special monthly compensation (SMC) at the housebound rate is denied. Entitlement to an effective date earlier than February 19, 2015, for basic eligibility to dependents’ educational assistance (DEA) is denied. Prior to July 12, 2018, entitlement to a disability rating in excess of 70 percent for service-connected bipolar I disorder is denied. FINDINGS OF FACT 1. At his July 14, 2020, hearing, the Veteran withdrew the issue of entitlement to an effective date earlier than July 10, 2015, for the reinstatement of the 10 percent evaluation of service-connected right ankle, and said withdrawal was explicit, unambiguous, and done with a full understanding of the circumstances. 2. At his July 14, 2020, hearing, the Veteran withdrew the issue of entitlement to a disability rating in excess of 10 percent for service-connected right ankle, and said withdrawal was explicit, unambiguous, and done with a full understanding of the circumstances. 3. The December 2009 rating decision is final, as it adequately evaluated the evidence submitted during the one-year appellate period to the October 2008 rating decision, also finalizing the October 2008 decision. 4. The Veteran was awarded an effective date of February 19, 2015, for the award of TDIU—the day he filed his increased rating claim for his service-connected bipolar I disorder. 5. Prior to June 8, 2009, the Veteran did not have a single disability rated as totaling disabled with other conditions rated as 60 percent or more disabling. 6. The Veteran did not have a service-connected disability that is both total and permanent in nature until February 19, 2015. 7. Prior to July 12, 2018, the Veteran’s service-connected bipolar I disorder more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to an effective date earlier than July 10, 2015, for the reinstatement of the 10 percent evaluation for service-connected right ankle disability are met. Acree v. O’Rourke, 891 F.3d 1009, 1012 (Fed. Cir. 2018). 2. The criteria for dismissal of entitlement to a disability rating in excess of 10 percent for service-connected right ankle disability are met. Acree v. O’Rourke, 891 F.3d 1009, 1012 (Fed. Cir. 2018). 3. The criteria for entitlement to an effective date earlier than February 19, 2015, for the 70 percent evaluation for service-connected bipolar I disorder are not met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.156(b). 4. The criteria for entitlement to an effective date prior to February 19, 2015, for the award of TDIU are not met. 38 U.S.C. § 5110(a), (b)(3); 38 C.F.R. § 3.400(o)(2), 4.16(a). 5. The criteria for entitlement to an effective date earlier than June 8, 2009, for the award of SMC at the housebound rate are not met. 38 U.S.C. §§ 1114(s), 5110(a); 38 C.F.R. § 3.350(i). 6. The criteria for entitlement to an effective date earlier than February 19, 2015, for basic eligibility to DEA are not met. 38 U.S.C. §§ § 3501(a)(1)(A)(ii), (D)(i), 5110(a); 38 C.F.R. §§ 3.807(a)(1)–(2), 21.3021(a)(1)(iii), (3)(i). 7. Prior to July 18, 2018, the criteria for entitlement to a 100 percent disability rating for service-connected bipolar I disorder are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9432. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2003 to October 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. A Board hearing was conducted via video conference with the RO in Salt Lake City, Utah. A transcript of this hearing is contained within the electronic claims file. See July 14, 2020, Hearing Transcript (Tr.). The Veteran originally was awarded service connection for his bipolar disorder in an October 2008 rating decision; he was awarded a 50 percent disability rating effective October 14, 2007. The Veteran did not appeal this decision. In a June 2009 statement, the Veteran stated he was having more problems with his bipolar condition. Based on this correspondence, VA afforded, in July 2009, the Veteran an updated examination and subsequently denied, in a December 2009 rating decision, the Veteran’s request for an increase. The Veteran did not appeal that decision. The instant increase rating claim was filed in February 2015. A July 2015 rating decision on appeal denied the Veteran’s request, and the Veteran timely appealed via his November 2015 Notice of Disagreement. In an August 2016 rating decision VA awarded the Veteran 70 percent rating for his bipolar and entitlement to TDIU and DEA, all effective February 19, 2015—the date of his increase rating claim. The RO also acknowledged that the Veteran previously qualified for SMC at the housebound rate from June 8, 2009, to September 1, 2009. The Veteran subsequently appealed these awards. During the pendency of the appeal, VA issued an August 2018 rating decision in which it awarded the Veteran a 100 percent rating for his bipolar, effective July 12, 2018. Voluntary Dismissal For oral withdrawal of claims at a hearing, the withdrawal must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action by the appellant. Acree v. O’Rourke, 891 F.3d 1009, 1012 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 57–58 (2011). At the Board hearing, the undersigned Veterans Law Judge (VLJ) asked the Veteran whether he (the undersigned) was correct in stating that the Veteran wished to withdrawal the two claims regarding the right ankle. The Veteran replied “Yes.” The undersigned continued: “And you understand that you’ll lose the effective date, once you withdraw this issue?” The Veteran replied in the affirmative. Tr. at 2. The undersigned proceeded to lay out the remining issues on appeal, and Counsel confirmed that the characterization of the issues remaining in appellate status were correct. Id. at 2–3. Thus, the Board finds that the Veteran’s withdrawal of these issues is explicit, unambiguous, and done with a full understanding of the consequences. Therefore, the withdrawals are deemed valid. See Acree, 891 F.3d at 1012. As the regulations make clear, the withdrawal of an appeal “will be deemed a withdrawal of the Notice of Disagreement [(NOD)] as to all issues to which the withdrawal applies.” 38 C.F.R. § 20.205(c). With no valid NOD, the issues of entitlement to an effective date earlier than July 10, 2015, for the reinstatement of the 10 percent evaluation of service-connected right ankle disability and entitlement to a disability rating in excess of 10 percent for service-connected right ankle condition are dismissed. Earlier Effective Date Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). A claim means a written or electronic communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by VA submitted on an application form prescribed by the Secretary. 38 C.F.R. § 3.1(p). A supplemental claim is defined as “a claim for benefits under laws administered by the Secretary filed by a claimant who had previously filed a claim for the same or similar benefits on the same or similar basis.” 38 U.S.C. § 101(36). A complete claim is one on an application form prescribed by the Secretary that (1) provides the name of the claimant, relationship to the veteran (if applicable), and sufficient information for VA to verify the claimed service (if applicable); (2) is signed by the claimant or representative; (3) identifies the benefit sought; and (4) lists a description of the symptoms or medical conditions on which the benefit is based. 38 C.F.R. § 3.160(a). 1. Entitlement to an effective date earlier than February 19, 2015, for the 70 percent evaluation for service-connected bipolar I disorder is denied. Within this appeal, Counsel has argued that VA erred by not granting an increased rating back his initial date of service connection. Specifically, Counsel posits that, although the Veteran did not appeal the October 2008 rating decision, that his June 2009 statement regarding increased severity of his bipolar, as well as a July 2009 VA examination, incorrectly was construed only as a claim for increase. In Counsel’s view, VA should have made a factual determination whether the lay statement and VA examination constituted new and material evidence under 38 C.F.R. § 3.156(b), thereby tolling the finality of the October 2008 rating decision, keeping his original claim pending to this day. See generally April 25, 2016, Appellant’s Memorandum. To support his argument, Counsel cites to Beraud v. McDonald, 766 F.3d 1402 (2014). While Counsel is correct in summarizing the facts and conclusion of that case, it is distinguishable from the case at bar. In Beraud, the RO denied, via a December 9, 1985, notification letter, the Veteran’s service-connection claim for headaches based on the fact that service medical records could not be located and the Veteran’s failure to respond to a previously issued November 12, 1985, letter stating as such. Id. at 1403. On December 16, 1985, before the expiration of his appellate period, the veteran submitted a letter, indicating the location of additional service records; the RO never responded to that letter. Id. The veteran filed three requests to reopen the headache claim, all of which were denied, either on the merits or because new and material evidence had not been submitted. Id. at 1403–04. In August 2004, the veteran again filed and finally was awarded service connection for headaches, effective August 27, 2004—the date of his most recent filing to reopen. The Veteran appealed, arguing that his effective date should be the date of his initial claim in 1985. The Board denied that appeal, finding that the 1985 and subsequent 1992 and 2002 decisions were final and binding. Id. The veteran appealed to the United States Court of Appeals for Veterans Claims (Court), arguing that the RO’s failure to determine whether his December 16, 1985, letter constituted new and material evidence under 38 C.F.R. § 3.156(b) tolled the finality of the December 1985 decision. Id. The United States Court of Appeals for the Federal Circuit (Federal Circuit) in Beraud ultimately held that, because “VA never determined whether the medical records Beraud referred to in his December 1985 letter constituted new and material evidence, as required by § 3.156(b), his 1985 claim remains pending.” Id. at 1407. In Beraud, VA failed altogether to address the veteran’s statement regarding the location of other service medical records. Here, however, VA specifically listed as evidence reviewed the Veteran’s statement that his bipolar condition worsened, as well as the July 2009 VA examination. The latter heavily was discussed by the RO. Thus, the RO implicitly held that the evidence submitted was new and material. Indeed, there would be no point in discussing the substantive nature of the evidence, if the RO otherwise thought it was redundant or duplicative in nature. Simply because the RO did not use the magic words “new and material evidence,” does not mean that its finality is vitiated. To the contrary, it is necessary to discuss regulations pertinent to effective dates only when new benefits have been awarded. Because VA determined that an increase was not warranted, after addressing the evidence, it would be a futile exercise to discuss whether that evidence is new and material. Indeed, the Board instead finds that Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) is controlling in this case; Beraud provided a succinct summary of that case: In Bond, the VA awarded a veteran service connection for posttraumatic stress disorder. 659 F.3d at 1363. Within one year of that award, the veteran requested an increased rating based on additional medical records he had obtained. Id. The VA regarded the later request as a new claim. Id. Thus, while the VA awarded the veteran a higher rating, it did so with an effective date that corresponded to his second claim. Id. at 1364–65. The veteran argued before the Veterans Court that the effective date should have been the date of his initial claim because the decision thereon never became final, as the VA never determined whether the medical records he submitted were new and material under § 3.156(b). Id. The Veterans Court disagreed, finding that the VA did not need to make that determination because it treated his submission as a new claim, which then became final. Id. This court reversed, holding that § 3.156(b) requires the VA to determine whether subsequently submitted materials constituted new and material evidence relating to an earlier claim, regardless of how the VA characterizes that later submission of evidence. Id. at 1368. We reasoned that the VA’s characterization of Bond’s submission as a new claim did not “foreclose the possibility that [the submission] may have also contained new and material evidence pertaining to” the initial claim. Id. Beraud, 766 F.3d at 1405. Like the veteran in Bond, our Veteran here submitted a request for increase within the one-year appellate period. Unlike the Bond veteran, however, our Veteran subsequently was not awarded an increase, even though VA did review the additional evidence submitted. Thus, it was not necessary for the RO in this case to assess whether such evidence was new and material. To be clear and summarize, Beraud and Bond show us that either one of two scenarios can trigger 38 C.F.R. § 3.156(b). In the Beraud hypothetical, VA ignores altogether evidence submitted by a veteran during his appellate period, failing to assess whether that evidence is new and material, tolling the finality of that decision if future benefits are awarded. Bond shows another possibility: that VA receives evidence within the one-year appeal period, reassess the veteran’s claim, awards additional benefits, but otherwise fails to consider whether that evidence was new and material thereby relating back to the original filing for effective date purposes. Counsel attempts to create a hybrid scenario where (1) the Veteran submits additional evidence during the one-year appellate period, (2) that evidence substantively is reviewed by the RO, and (3) the RO denies additional benefits without specifically stating whether the additional evidence is new and material. For the reasons discussed above, the Board is not persuaded that VA has failed its obligation under 38 C.F.R. § 3.156(b) or the caselaw construing it. As such, the Board finds that the Veteran’s claim for an earlier effective date for the award of his 70 percent rating for his service-connected bipolar disorder is denied. 2. Entitlement to an effective date prior than February 19, 2015, for the award of TDIU is denied. TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation claims apply. Hurd v. West, 13 Vet. App. 449 (2000); Norris v. West, 12 Vet. App. 413, 420 (1999). The effective date of an award for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). Where the schedular rating is less than total, a total disability rating for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, that disability shall be ratable at 60 percent or more. If there are two or more disabilities, then there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran was awarded TDIU solely based on his bipolar disorder. See August 18, 2016, Rating Decision (“Upon De Novo Review of the evidence, entitlement to individual unemployability is granted because you have been found unable to secure or follow a substantially gainful occupation as a result of your service-connected disability of bipolar I disorder. Entitlement is granted effective February 19, 2015, which is the date of receipt of your claim and the date you met the schedular requirements.”). Because of the Board’s determination herein that the Veteran’s original increased rating claim for his bipolar disorder has not remained pending since he was awarded service connection, any possible inferred TDIU claim at that time also cannot be said to have remained pending. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Thus, the law noted above applies. In this case, the Veteran filed the instant increase rating claim for his bipolar disorder on February 19, 2015, and the subsequent medical evidence and employment verification forms shows that the Veteran has not been able to secure or follow a substantially gainful occupation due to his service-connected bipolar. Therefore, the Veteran generously was awarded the date he filed—February 19, 2015—so his appeal is denied. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). 3. Entitlement to an effective date earlier than June 8, 2009, for the award of SMC at the housebound rate is denied. Counsel makes no argument for an effective date earlier than June 8, 2009, for the award of SMC at the housebound rate. The issue of entitlement to SMC is treated like a claim for increased compensation and is part and parcel of an increased rating claim; entitlement is an inferable issue anytime a veteran is asking for an increase in benefits. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). SMC is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Veteran was awarded SMC at the housebound rate from June 8, 2009, to September 1, 2009, because, during that time, the Veteran was receiving a temporary total rating for his service connected right ankle, pursuant to 38 C.F.R. § 4.30, as well as a combined rating of 60 percent for his service-connected bipolar disorder and tinnitus. Even assuming facts most favorable to the Veteran, he legally is not entitled to an effective date earlier than June 8, 2009, for SMC. Even if the Board granted back to October 14, 2007, a 100 percent disability rating for the Veteran’s bipolar disorder, he did not have any other service-connected condition or conditions that separately combined to a 60 percent or more rating until he was awarded, under 38 C.F.R. § 4.30, the temporary total rating for his right ankle. Thus, under no scenario is SMC at the housebound rate earlier than June 8, 2009, legally permissible. Therefore, the Veteran’s appeal on this matter is denied. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). 4. Entitlement to an effective date earlier than February 19, 2015, for basic eligibility to DEA is denied. Counsel makes no argument for an effective date earlier than February 19, 2015, for the award of DEA. Eligibility for DEA benefits requires an underlying service-connected disability that is both total and permanent in nature. 38 U.S.C. § 3501(a)(1)(A)(ii), (D)(i); 38 C.F.R. §§ 3.807(a)(1)–(2), 21.3021(a)(1)(iii), (3)(i). The RO, in its August 18, 2016, rating decision, determined that the Veteran was entitled to an effective date for DEA that coincided with the date of his TDIU rating for his service-connected bipolar disorder—February 19, 2015. As the Board herein already has stated, it does not find that the October 2008 rating decision has remained pending until the present. That determination forecloses the possibility of finding that the Veteran had a service-connected disability that is both total and permanent in nature prior to February 19, 2015. Therefore, he currently receives DEA benefits as early as possible, and his claim on this matter is denied. See 38 U.S.C. § 3501(a)(1)(A)(ii), (D)(i); 38 C.F.R. §§ 3.807(a)(1)–(2), 21.3021(a)(1)(iii), (3)(i). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. While a veteran’s entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. 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 veteran. 38 C.F.R. § 4.3. For psychiatric disabilities, a 100 percent disability rating contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant a particular rating, but are not meant to be exhaustive, and the Board need not find all, or even some, of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442–43 (2002). If the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a specific rating, the appropriate, equivalent rating will be assigned. Id. at 443. The rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed. Cir. 2013). Associated with the Veteran’s Social Security Administration (SSA) records is a January 2015 mental impairment questionnaire completed by Dr. A.J. Most notable on that questionnaire, Dr. A.J. states that the Veteran has impulsivity with decrease in productivity, poor performance and productivity, poor stress tolerance, and interpersonal relationship problems. The Veteran also struggles with poor sleep, has difficulty learning, and is forgetful; Dr. A.J. notes that the Veteran suffers from occupational circumstantial dysfunction. A March 2015 VA examination report noted mental examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. The Veteran was noted to have occupational and social impairment with reduced reliability and productivity. The examiner noted that, with respect to social functioning, the Veteran lives with his current girlfriend and her three children. Any discord in their relationship is attributable to her “‘poor self-image’” and “‘history of abuse.’” The Veteran has limited social interactions outside caring for his girlfriend’s children, and his hobbies include watching television and playing on the computer. The Veteran currently is unemployed. Since September 2014, he worked in technical support at a local high school but was terminated following an arrest for driving under the influence (DUI). The Veteran denied all occupational difficulties while there. Prior to that job, the Veteran worked in a junkyard and a Halloween store where he similarly denied occupational difficulties. The examiner provided the following summary of her interaction with the Veteran: [The Veteran] was last evaluated by C&P on 7/22/09. Results of that evaluation indicated that [the Veteran] was diagnosed with Bipolar I Disorder, Predominantly Depressed, without Psychotic Features. He continues to meet the DSM5 criteria for Bipolar I Disorder, Most Recent Episode Depressed, Mild. This is a progression from his previous diagnosis. During the current evaluation, [the Veteran] endorsed a similar pattern of symptomatology as described in the previous evaluation. The [V]eteran continues to report symptoms and functional impairment consistent with mild Bipolar Disorder. He did not describe any significant changes in severity/frequency of symptoms or functional impairment since the time of the last exam. Reader is referred to body of report and DBQ where symptoms are delineated. [The Veteran] did not report a history of any traumatic stressors since the last exam. There was no obvious impairment in thought process or communication observed during this assessment. Furthermore, he did not endorse any current or recent suicidal or homicidal ideation. Finally, [the Veteran] is not deemed capable of managing VA benefits independently. In March 2016, the Veteran submitted a letter from Dr. A.J., who has been treating the Veteran since January 2009. Dr. A.J. notes that the Veteran has experienced episodic symptoms of psychosis, severe mood swings, including severe depression, and neglect of selfcare. According to Dr. A.J., the Veteran has made several failed attempts to maintain steady employment and to return to school. The Veteran’s prognosis is guarded–grim. An August 2016 VA examination report noted mental examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. The Veteran was noted to have occupational and social impairment with reduced reliability and productivity. There was no change to the Veteran’s social interactions/relationships. The Veteran subsequently retained his technical job at the local high school in August 2015 but later was terminated in February 2016. The Veteran noted that, during that time, he was able to get along well with coworkers. The only noted symptom was disturbances of motivation and mood. For behavioral observations, the examiner stated: Veteran reported that he has been experiencing a predominantly depressive mood state more days than not, which worsened following his termination from his job. His reported energy level was low. He endorsed experiencing difficulties initiating sleep, and reportedly accrues approximately five hours of sleep per night. Veteran described experiencing a decreased appetite, but a 50 pound weight gain since last exam. He denied experiencing any manic or hypomanic episodes since last exam. [The Veteran] continues to endorse ongoing symptoms associated with Bipolar I Disorder, Most Recent Episode Depressed, Mild. During today’s evaluation, he reported symptoms consistent with this diagnosis. The [V]eteran did not endorse criteria consistent with any additional DSM-5 disorders. The examiner also stated the following: With regard to the [V]eteran’s ability to function in an occupational environment, he would likely be able to complete technical support work without difficulty. While he noted that he was terminated from his previous position, he denied that the reasons for termination were due to his diagnosed and service connected disorder. Further, he remarked that he was able to get along well with others, and complete his job related tasks in a timely manner. He noted that he had only previously been let go from the same position due to pending legal issues, and was eventually rehired. Evidence suggests that the [V]eteran would likely be able to function well and complete all employment tasks, particularly in a tech support role, without difficulty or impairment. [The Veteran] did not report a history of any traumatic stressors since the last exam. There was no obvious impairment in thought process or communication observed during this assessment. Furthermore, he did not endorse any current or recent homicidal ideation. He denied current suicidal ideation, and noted that he typically experiences daily suicidal ideation without plan or intent. Finally, Mr. [REDACTED] is capable of managing VA benefits without assistance. VA medical center (VAMC) records span through the entire period on appeal and reveal that the Veteran was undergoing routine mental health appointments. By and large, these records reveal that the Veteran mostly struggled with anger issues and bouts of depression/irritability brought on by his relationship with his now wife and his stepchildren. The records reveal that, through a large portion of 2017, the Veteran continued to work on these relationships and routinely was having suicidal ideation. By early 2018, however, the records show improvement in the Veteran’s condition. A March 12, 2018, entry noted the Veteran was making positive progress; April 2018 entries document that the Veteran is not as temperamental as he used to be and that his anger is decreasing. By May 2018, he described his mood as 10/10 and anxiety of only 2/10. There was no suicidal ideation, mania, or psychosis. At his hearing, much of the Veteran’s testimony focused on the severity of his condition in the past (times during which this Board has determined are not on appeal) and the present severity. Reviewing the evidence of record, the Board does not find that, prior to July 18, 2018, the evidence of record discloses total social and occupational impairment as contemplated by the rating criteria. Dr. A.J.’s January 2016 assessment of the Veteran in the SSA records states that he has difficulty with interpersonal skills and would experience problems in the work force such as a decrease in productivity; he also has poor stress tolerance and difficulty with learning. Dr. A.J. ultimately believes that the Veteran, due to his poor work history, is unemployable. These findings, however, are underscored by the March 2015 VA examination and the Veteran’s own endorsements. There, the Veteran denied occupational difficulties with three previous jobs, none of which were lost for reasons due to his psychiatric symptoms. Similar circumstances were confirmed by the Veteran during the August 2016 VA examination. True enough Dr. A.J.’s March 2016 letter noted that the Veteran has experienced episodic symptoms of psychosis, severe mood swings, including severe depression, and neglect of selfcare, she also notes that she has treated the Veteran since 2009. She does not delineate which symptoms were experienced when, and a large portion of that period is a time that the Board has determined is not on appeal. As such, the Board finds that Dr. A.J.’s letter provides little in the way of discerning the Veteran’s symptoms for the period on appeal. Nevertheless, the Board acknowledges that VA determined, as of February 19, 2015, the Veteran’s bipolar rendered him unable to secure or follow a substantially gainful occupation. The rating criteria, however, requires both total occupational and social impairment, and the Board does not find that the latter is met. VAMC records and examinations show a pattern of mild–moderate discord between the Veteran and his wife regarding various issues between them and over parenting styles. Treatment notes verify that the Veteran continually worked with routine medical providers on ways to work through his marital problems and repair his relationship with his wife through communication and stress/anger management. Through much of 2016 and 2017, the Veteran routinely endorsed passive thoughts of suicidal ideation, and the Board finds that the Veteran’s current 70 percent rating contemplates that symptomatology. Towards the end of the appellate period (May 2018) the Veteran’s providers were noting improvement in his symptoms, and the Veteran himself endorsed low anxiety, a normal, non-depressed mood, without suicidal ideation, mania, or psychosis. In the Board’s view, the Veteran’s psychiatric condition has begun to improve, not worsen. As noted earlier, when the Veteran was working and interacting with others, he endorsed no problems with coworkers. Thus, while the Veteran may experience symptoms that limit his ability to be efficient and productive at work, the evidence does not show that his psychiatric symptoms result in total social impairment. While the Veteran endorses limited social interaction with others, he has shown that he can mend personal relationships with others. Thus, the Board finds that the Veteran’s service-connected bipolar I disorder more closely approximates occupational and social impairment in most areas. See 38 C.F.R. § 4.130, DC 9432. (SIGNATURE ON NEXT PAGE) JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.