Citation Nr: 0525475	
Decision Date: 09/16/05    Archive Date: 09/29/05

DOCKET NO.  00-23 399	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, 
Virginia


THE ISSUES

1.  Entitlement to a disability evaluation in excess of 10 
percent for otitis externa.

2.  Entitlement to an initial disability evaluation in excess 
of 70 percent for major depressive disorder.


REPRESENTATION

Appellant represented by:	Janet R. Walters, Agent


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Rebecca Feinberg, Associate Counsel
INTRODUCTION

The veteran served on active duty from September 1962 to 
August 1966.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from June 1999 and May 2000 rating decisions of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Roanoke, Virginia.

The veteran provided oral testimony at a hearing before the 
undersigned Veterans Law Judge at the Board in June 2001.  A 
transcript has been associated with the claims file.


FINDINGS OF FACT

1.  The veteran is currently in receipt of the maximum 
schedular evaluation available (10 percent) for his service-
connected otitis externa, and the competent evidence of 
record does not establish that this disability interferes 
with his employment, nor has it been shown to have resulted 
in hospitalization.

2.  The veteran's major depressive disorder is manifested by 
symptoms of lack of sleep, constant depression, irritability, 
social isolation, short and long term memory loss, suicidal 
and homicidal thoughts, and two near suicide attempts, but no 
violent behavior towards others, hallucinations, delusions, 
inappropriate dress or behavior, or disorientation, with a 
Global Assessment of Functioning (GAF) score no lower than 
35.

3.  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, has 
not been demonstrated by the clinical evidence.

CONCLUSIONS OF LAW

1.  The criteria for an evaluation in excess of 10 percent 
for otitis externa have not been met.  38 U.S.C.A. § 1155 
(West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6210 (2004).

2.  The criteria for an initial evaluation in excess of 70 
percent for major depressive disorder have not been met.  38 
U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, 
Diagnostic Code 9434 (2004).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Factual Background

A January 1998 VA record shows the veteran was referred for 
evaluation and possible medication for depression.  He 
reported decreased energy and motivation.  He had a depressed 
mood every day, worsening during the day.  He had difficulty 
falling and staying asleep.  He had no appetite disturbance, 
weight loss, or guilt.  On examination, the veteran was 
oriented.  His speech was slow, deliberate, and linear in 
process.  His affect was restricted in the dysphoric range.  
He had no suicidal or homicidal intent or hallucinations.  
The diagnosis was major depressive episode.

February to July 1998 outpatient records show the veteran 
continued to receive treatment for his major depressive 
episode, moderate to severe.  His speech was slow, and he had 
poor eye contact.  His affect was dysphoric and restricted in 
range.  There was no psychosis and no suicidal or homicidal 
ideation.

In April 1999, the veteran underwent VA examination.  He 
complained of depression, sleep difficulties, and memory and 
concentration problems.  He felt nervous any time he was out 
of the house and found it hard to deal with people.  He felt 
depressed a lot.  He denied crying spells or chronic feelings 
of hopelessness.

The veteran stated he had suicidal thoughts all the time but 
did not have the nerve to do it.  He had no history of 
attempts to harm himself.  He had no energy, but attributed 
that to physical inactivity.  He reported no major loss of 
interests.  Middle insomnia was his number one problem.  He 
reported only getting three to five hours of sleep per night.  
However, this was noted to be caused by tinnitus.

The veteran's appetite was good and weight was stable.  He 
reported irritability, but he denied homicidal ideation or 
violent behavior towards others.  Hallucinations and 
delusions were denied.  He was suspicious and distrustful of 
others, and at times felt as if people were against him.  He 
had a couple of friends but preferred to be alone most of the 
time, and was generally ill at east around others.  The 
veteran was currently taking medication, but did not 
participate in any counselling.

On examination, the veteran's dress, grooming, and hygiene 
were good.  He was alert and oriented.  His behavior was 
appropriate and cooperative.  He was talkative.  The 
veteran's mood was anxious and dysphoric.  He appeared to be 
tense and restless and showed memory difficulties.  Eye 
contact was good.  Speech was clear, relevant, and logical.  
His affect was appropriate but somewhat restricted.  
Psychomotor activity was within normal limits.  The veteran 
did not appear to be psychotic.  Insight was partial.  
Immediate memory was moderately impaired, and recent memory 
was markedly impaired.  Remote memory was intact.  
Concentration was good.  His fund of general information, 
abstract thinking, and judgment were intact.  The diagnosis 
was adjustment disorder with depressed mood.

A December 1999 treatment record shows the veteran continued 
to seek treatment for his depression.  The physician noted 
that he was dysphoric but did not have acute symptoms of 
depression.

In December 1999, the veteran underwent VA examination for 
mental disorders.  The veteran stated that the ringing in his 
ears made him feel nervous, hostile, and depressed.  He felt 
nervous almost all the time.  He did not report any panic 
attacks or obsessional rituals.  He felt depressed all the 
time.  He reported crying spells and suicidal thoughts.  He 
denied any history of attempts to harm himself.  He felt

hopeless and had no energy and few interests.  He stated the 
only good thing he got out of life was watching a new show on 
television.  The veteran complained of initial and middle 
insomnia, and reported sleeping only about three to four 
hours per night.  His appetite was pretty good, and he 
reported having gained fifteen pounds in the past year.  His 
weight was currently within normal limits.

The veteran was easily irritated and had homicidal thoughts 
at times, but he denied violent behavior toward others.  His 
impulse control was adequate.  Hallucinations and delusions 
were denied.  He was generally suspicious and distrustful of 
people, and tended to feel mistreated by others.  His friends 
consisted of his girlfriend, some of her family, and members 
of his family.  Otherwise, he preferred to be alone.  He was 
not in any counselling.

On clinical evaluation, the veteran's dress, grooming, and 
hygiene were adequate.  He was alert and oriented.  His 
behavior was appropriate and cooperative.  He was talkative.  
His mood was anxious, depressed, and irritable.  He was tense 
and restless, and showed only limited smiling or laughing.  
Eye contact was fair.  Speech was clear, relevant, and 
logical.  The veteran's affect was appropriate but restricted 
in range.  Psychomotor activity was within normal limits.  No 
psychotic abnormalities were noted.  Insight was fair.  
Memory was intact, and concentration was adequate.  Fund of 
general information, abstract thinking, and judgment were 
intact.  The diagnosis was major depressive disorder.

In December 1999, the veteran also underwent VA examination 
for ear disease.  He reported having last sought treatment 
for ear infections two years before.  He had some medicine he 
kept to keep the infections down.  He did not know the name 
of the medicine.  The last time he had a prescription for it 
was two years ago, but he kept getting refills.  However, 
there was no record of this at the VA facility.  He said he 
used the drops once a month.  The veteran described his right 
ear as halfway stopped up.  He had no history of malignancy 
or surgery for his ears.

On examination, the auricles were normal.  The external 
canals had some dry, scaly areas.  There was no discharge.  
There was some mild irritation in the canals.  The drums 
appeared normal.  His nose and throat were normal.  The 
diagnosis was that there was some evidence of chronic otitis 
externa noted with dry scaling of the ear canals, with mild 
irritation and no drainage.

In June 2001, the veteran testified before the undersigned.  
His representative stated that his depression was 
considerably higher than before.  He was treated, but his 
representative, also his girlfriend, had not seen any 
improvement.  The veteran stated that the otitis externa was 
in both ears.  He stated that the VA examiner saw no 
infection, but that his private examiner did.  He used drops 
to fight infections.  He had no surgery on either ear.  The 
inside of his ear canals was dry and flaky.  They itched 
every day.  There was dry skin that fell out of them.  Any 
sort of water getting into his ear caused it to become 
infected.

As to his depression, the veteran stated that he could not 
remember things.  He saw the psychiatrist every three months.  
He took medication every day.    The veteran did not feel 
comfortable in large crowds or around a lot of people.  He 
stated that he did not feel like living anymore.  All he did 
was sit on the couch and watch television.  Most of the time 
he could only concentrate on the ringing in his ears.  

In January 2002, the veteran again underwent VA examination 
for ear disease.  He stated that since service he had 
experienced recurring right ear infections.  He said he had 
them about every three to four weeks, and they required 
treatment.  He had no malignant disease of the ear, and the 
only treatment was directed towards infectious disease.

On examination, the external ear and auditory canal were 
within normal limits, as was the tympanic membrane on the 
right.  The left external ear and external auditory canal 
were normal to appearance.  The tympanic membrane was densely 
scarred on the left with some loss of landmarks, but no 
active disease was present.  There was no discharge from 
either ear, and there was no evidence of cholesteatoma.  The 
diagnoses were congenital deformity, left inner ear, with 
essentially total sensorineural hearing loss, and a history 
compatible with external otitis on the left with no active 
disease at present.  It was thought reasonable to expect that 
the problems with the right ear were related to water getting 
in the ear, with secondary external otitis.

In March 2002, the veteran underwent another VA mental 
disorders examination.  He was in outpatient treatment at VA.  
He also took medication.  He reported feeling anxious all the 
time because of his tinnitus.  He had panic attacks 
characterized by hot flushes, feeling confused, urges to run, 
dizziness, and increased heart rate.  He had experienced 
three such attacks in the past month.  They lasted for five 
to ten minutes, and disrupted his activities during that 
period.  He reported no obsessive or ritualistic behavior 
which interfered with routine activities.  He stated that he 
felt depressed all the time.  He had crying spells.  He had 
suicidal thoughts all the time.  He gave a history of two 
near suicide attempts.  He was very pessimistic about his 
future considering his problems.  He watched television, but 
otherwise had no interests or activities.

The veteran complained of initial and middle insomnia, and 
reported sleeping only three to four hours per night.  He 
complained of chronic fatigue.  The fatigue reduced his 
motivation to be more active.  His appetite was good, and his 
weight was stable and within normal limits.  He reported 
excessive irritability but denied any homicidal ideation, 
violent or assaultive behavior, or impaired impulse control.  
Hallucinations and delusions were denied.  The veteran had 
had a live-in girlfriend for a number of years.  He had a few 
friends in the past, but they did not come around much 
anymore because of his irritability.  He denied having 
friends he associated with regularly.  Other than for 
necessary errands, he did not leave his house.  His 
irritability and depressed moods impaired his relationship 
with his girlfriend.  

On clinical evaluation, the veteran's dress, grooming, and 
hygiene were adequate.  He was able to maintain minimal 
personal hygiene and other basic activities of daily living.  
He was alert and oriented to person, place, and time.  Short-
term memory was mildly impaired.  Long-term memory appeared 
to be unimpaired.  The veteran was cooperative and 
responsive.  There was no inappropriate behavior during the 
interview.  Eye contact was fair.  Speech was unspontaneous 
and limited.  There were no irrelevant, illogical, or obscure 
speech patterns.  The veteran's affect was depressed.  
Psychomotor activity was within normal limits.  Concentration 
was moderately impaired.  Abstract thinking and judgment 
appeared to be unimpaired.  There was no impairment of 
thought processes or communication.

The diagnosis was major depressive disorder.  The examiner 
opined that the description of the symptoms for a 70 percent 
rating most closely equalled the severity of the veteran's 
depression.  He demonstrated suicidal thoughts; near 
continuous depression affecting the ability to function 
independently, appropriately, and effectively; difficulty in 
adapting to stressful circumstances; and an inability to 
establish and maintain effective relationships.  The 
veteran's GAF score was 40.

VA outpatient reports dated from April to December 2004 show 
the veteran continued to receive treatment for his major 
depressive disorder.  He described his mood as stable as long 
as he took his medication.  His grooming and hygiene were 
good.  He was alert and oriented.  The veteran's thoughts 
were goal-directed and logical.  He reported no 
hallucinations or delusions.  Insight and judgment were 
normal.  The diagnosis in October 2004 was dysthymic 
disorder, chronic, and his GAF score was 45.  It was noted 
that, while he previously had suicidal ideation, he denied 
any current plan or intent.  His GAF score in April 2004 was 
35.

II.  Analysis

A.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2004).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) 
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2004); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA 
notice must inform the claimant of any information and 
evidence not of record (1) that is necessary to substantiate 
the claim; (2) that VA will seek to provide; and (3) that the 
claimant is expected to provide; and (4) must ask the 
claimant to provide any evidence in her or his possession 
that pertains to the claim, in accordance with 38 C.F.R. 
§ 3.159(b)(1).  VCAA notice should be provided to a claimant 
before the initial unfavorable agency of original 
jurisdiction (AOJ) decision on a claim.  Pelegrini v. 
Principi, 18 Vet. App. 112 (2004); see also Mayfield v. 
Nicholson, 19 Vet. App. 103 (2005).

In the Mayfield case, the U.S. Court of Appeals for Veterans 
Claims addressed the meaning of prejudicial error 
(38 U.S.C.A. § 7261(b)), what burden each party bears with 
regard to the Court's taking due account of the rule of 
prejudicial error, and the application of prejudicial error 
in the context of the VCAA duty to notify (38 U.S.C.A. 
§ 5103(a)).  Considering the decisions of the Court in 
Pelegrini and Mayfield, the Board finds that the requirements 
of the VCAA have been satisfied in this matter, as discussed 
below.

In Pelegrini, the Court held, in part, that a VCAA notice, as 
required by 38 U.S.C.A. § 5103(a), must be provided to a 
claimant before the initial unfavorable agency of original 
jurisdiction (AOJ) decision on a claim for VA benefits.  In 
the present case, the unfavorable AOJ decisions that are the 
basis of this appeal were already decided and appealed prior 
to VCAA notice.  The Court acknowledged in Pelegrini that 
where, as here the § 5103(a) notice was not mandated at the 
time of the initial AOJ decision, the AOJ did not err in not 
providing such notice.  Rather, the appellant has the right 
to content complying notice and proper subsequent VA process.  
Pelegrini, 18 Vet. App. at 120.

Here, the Board finds that any defect with respect to the 
timing of the VCAA notice requirement was harmless error.  
Although the notice was provided to the appellant after the 
initial adjudication, the appellant has not been prejudiced 
thereby.  The content of the notice provided to the appellant 
fully complied with the requirements of 38 U.S.C.A. § 5103(a) 
and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  Not 
only has the appellant been provided with every opportunity 
to submit evidence and argument in support of his claims and 
to respond to VA notices, but the actions

taken by VA have essentially cured the error in the timing of 
notice.  Further, the Board finds that the purpose behind the 
notice requirement has been satisfied because the appellant 
has been afforded a meaningful opportunity to participate 
effectively in the processing of his claims.  For these 
reasons, it is not prejudicial to the appellant for the Board 
to proceed to finally decide this appeal.

In January 2002, August 2003, and September 2004 letters, the 
RO informed the appellant of its duty to assist him in 
substantiating his claims under the VCAA, and the effect of 
this duty upon his claims.  In addition, the appellant was 
advised, by virtue of a detailed September 2000 statement of 
the case (SOC) and December 2002, March 2003, and May 2005 
supplemental statements of the case (SSOCs) issued during the 
pendency of this appeal, of the pertinent law, and what the 
evidence must show in order to substantiate his claims.  We 
therefore believe that appropriate notice has been given in 
this case.  The Board notes, in addition, that a substantial 
body of lay and medical evidence was developed with respect 
to the appellant's claims, and that the SOC and SSOCs issued 
by the RO clarified what evidence would be required to 
establish entitlement to increased ratings.  The appellant 
responded to the RO's communications with additional evidence 
and argument, thus curing (or rendering harmless) any 
previous omissions.  Further, the claims file reflects that 
the May 2005 SSOC contained the new duty-to-assist regulation 
codified at 38 C.F.R. § 3.159 (2004).  See Charles v. 
Principi, 16 Vet. App. 370, 373-74 (2002).  All the above 
notice documents must be read in the context of prior, 
relatively contemporaneous communications from the RO.  See 
Mayfield, at 125.

The Board concludes that the notifications received by the 
appellant adequately complied with the VCAA and subsequent 
interpretive authority, and that he has not been prejudiced 
in any way by the notice and assistance provided by the RO.  
See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); 
VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)).  Likewise, it 
appears that all obtainable evidence identified by the 
appellant relative to his claims has been obtained and 
associated with the claims file, and that neither he nor his 
agent has identified any other pertinent evidence, not

already of record, which would need to be obtained for a fair 
disposition of this appeal.  Thus, for these reasons, any 
failure in the timing or language of VCAA notice by the RO 
constituted harmless error.

Accordingly, we find that VA has satisfied its duty to assist 
the appellant in apprising him as to the evidence needed, and 
in obtaining evidence pertaining to his claims, under both 
former law and the VCAA.  The Board, therefore, finds that no 
useful purpose would be served in remanding this matter for 
yet more development.  Such a remand would result in 
unnecessarily imposing additional burdens on VA, with no 
additional benefit flowing to the veteran.  The Court of 
Appeals for Veterans Claims has held that such remands are to 
be avoided.  See Winters v. West, 12 Vet. App. 203 (1999) (en 
banc), vacated on other grounds sub nom. Winters v. Gober, 
219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. 
App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 
(1994).  In fact, the Court has stated, "The VCAA is a 
reason to remand many, many claims, but it is not an excuse 
to remand all claims."  Livesay v. Principi, 15 Vet. App. 
165, 178 (2001) (en banc).

It is the Board's responsibility to evaluate the entire 
record on appeal.  See 38 U.S.C.A. § 7104(a) (West 2002).  
When there is an approximate balance in the evidence 
regarding the merits of an issue material to the 
determination of the matter, the benefit of the doubt in 
resolving each such issue shall be given to the claimant.  38 
U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2004).

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court 
of Appeals for Veterans Claims held that an appellant need 
only demonstrate that there is an "approximate balance of 
positive and negative evidence" in order to prevail.  The 
Court has also stated, "It is clear that to deny a claim on 
its merits, the evidence must preponderate against the 
claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), 
citing Gilbert.


B.  Applicable Law

Disability ratings are based upon schedular requirements that 
reflect the average impairment of earning capacity occasioned 
by the state of a disorder.  38 U.S.C.A. § 1155.  Separate 
rating codes identify the various disabilities.  38 C.F.R. 
Part 4 (2004).  In determining the level of impairment, the 
disability must be considered in the context of the entire 
recorded history, including service medical records.  38 
C.F.R. § 4.2 (2004).

An evaluation of the level of disability present must also 
include consideration of the functional impairment of the 
veteran's ability to engage in ordinary activities, including 
employment.  38 C.F.R. § 4.10 (2004).  Also, 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.  38 
C.F.R. § 4.7 (2004).

C.  Otitis Externa

The veteran's otitis externa is currently rated 10 percent 
disabling under the criteria of 38 C.F.R. § 4.87, Diagnostic 
Code (DC) 6210 (2004).  Under that code, chronic otitis 
externa is rated 10 percent disabling with swelling, dry and 
scaly or serious discharge, and itching requiring frequent or 
prolonged treatment.  Id.  That is the only disability rating 
associated with that diagnostic code.  Therefore, there is no 
possible increased rating under the criteria for that code.

In order to afford the veteran the highest possible 
disability rating, the Board has evaluated his claim under 
all applicable diagnostic codes.  However, the veteran has 
not been diagnosed with any other ear diseases that would 
warrant a rating under other codes.  Furthermore, he is 
already separately rated for tinnitus and hearing loss, 
claims which are not on appeal at this time.

Finally, the Board has considered whether the case should be 
referred for extra-schedular consideration under 38 C.F.R. § 
3.321(b)(1) (2004).  In this respect, the Board notes that 
the medical evidence fails to show, and the veteran has not 
contended, that he has required frequent periods of 
hospitalization for his otitis externa.  In sum, there is no 
indication in the record of such an unusual disability 
picture that application of regular schedular standards is 
impractical, especially in the absence of any allegation of 
marked interference with employment due to the veteran's 
otitis externa.  Therefore, the Board finds that the criteria 
for submission for an extra-schedular rating pursuant to 38 
C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 
Vet. App. 237 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); 
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

Consequently, the Board finds that the evaluation assigned in 
this decision adequately reflects the clinically established 
impairment experienced by the veteran.  As the evidence 
preponderates against the claim for an increased rating for 
the veteran's otitis externa, the benefit-of-the-doubt 
doctrine is inapplicable, and an increased rating must be 
denied.  38 U.S.C.A. § 5107(b); Gilbert, supra.

D.  Depression

The Board here notes that this is a case in which the veteran 
has expressed continuing disagreement with the initial rating 
assignment.  The U.S. Court of Appeals for Veterans Claims 
has addressed the distinction between a veteran's 
dissatisfaction with the initial rating assigned following a 
grant of entitlement to compensation, and a later claim for 
an increased rating.  See Fenderson v. West, 12 Vet. App. 
119, 126 (1999).  The Court noted that the rule from 
Francisco v. Brown, 7 Vet. App. 55, 58 (1994) as to the 
primary importance of the present level of disability, is not 
necessarily applicable to the assignment of an initial rating 
following an original award of service connection for that 
disability.  Rather, the Court held that, at the time of an 
initial rating, separate ratings could be assigned for 
separate periods of time based upon the facts found - a 
practice known as assigning "staged" ratings.

In Meeks v. West, 12 Vet. App. 352 (1999), the Court 
reaffirmed the staged ratings principle of Fenderson, and 
specifically found that 38 U.S.C.A. § 5110 (West 2002) and 
its implementing regulations did not require that the final 
rating be effective the date of the claim.  Rather, the law 
must be taken at its plain meaning, and the plain meaning of 
the requirement that the effective date be determined in 
accordance with facts found is that the disability rating 
must change to reflect the severity of the disability as 
shown by the facts from time to time.

The veteran's major depressive disorder is currently rated 70 
percent disabled under the criteria of 38 C.F.R. § 4.130, 
Diagnostic Code 9434 (2004).

Under the general rating formula for mental disorders, a 70 
percent rating is warranted when there is occupational and 
social impairment with deficiencies in most areas, such as 
work, school, family relations, judgment, thinking, 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 worklike 
setting); and the inability to establish and maintain 
effective relationships.  Id.

A 100 percent rating is warranted if there is total 
occupational and social impairment, due to such symptoms as: 
gross impairment in thought processes or communication; 
persistent delusions or hallucinations; gross 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.  Id.

The Global Assessment of Functioning is a scale reflecting 
the psychological, social, and occupational functioning on a 
hypothetical continuum of mental-health illness.  See Richard 
v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and 
Statistical Manual of Mental Disorders (4th ed. 1994).  A GAF 
score of 41 to 50 is defined as denoting serious symptoms 
(e.g., suicidal ideation, severe obsessional rituals, 
frequent shoplifter) or any serious impairment in social, 
occupational, or school functioning (e.g., no friends, unable 
to keep a job).  A score of 31 to 40 is defined as some 
impairment in reality testing or communication (e.g., speech 
is at times illogical, obscure, or irrelevant) or major 
impairment in several areas, such as work or school, family 
relations, judgment, thinking, or mood (e.g., depressed man 
avoids friends, neglects family, and is unable to work; child 
frequently beats up younger children, is defiant at home, and 
is failing at school).  See Carpenter v. Brown, 8 Vet. App. 
240, 242-244 (1995).

The record shows that the veteran manifested a constant 
depressed mood, with decreased energy and motivation.  He 
consistently had problems sleeping.  With respect to the 
criteria specified for the 100 percent disability rating, the 
veteran repeatedly denied any delusions or hallucinations, in 
April and December 1999 and March 2002.  The record never 
shows that he demonstrated grossly inappropriate behavior.  
In fact, he was described as exhibiting appropriate behavior 
during all three of his VA examinations.  While the veteran 
reported some irritability and noted homicidal thoughts in 
December 1999, he repeatedly denied any violent behavior 
towards others in the April and December 1999 and March 2002 
VA examination reports.  He did note repeated suicidal 
thoughts, and in March 2002 reported two near attempts.

Throughout the course of this claim, the medical evidence has 
not documented the veteran's ever demonstrating an inability 
to take care of his activities of daily living.  His dress 
and hygiene were described as adequate in April and December 
1999, and March 2002.  He was also shown to be oriented in 
January 1998, December 1999, and March 2002, and was never 
described as disoriented.  While the medical evidence of 
record does show the veteran had some problems with short-
term memory, there is no evidence that this included memory 
loss for his own name, the names of close friends and 
relatives, or his occupation.

Given the above, the Board finds that the veteran, throughout 
the appeal period, never demonstrated the majority of the 
criteria necessary for a 100 percent disability rating.  
While his symptoms closely relate to the criteria necessary 
for a 70 percent rating, they do not correlate to those 
required for a 100 percent disability rating, as described 
above.

The Board notes that the lowest GAF score ever assigned to 
the veteran was 35.  This score closely relates to a 70 
percent evaluation for major depressive disorder.  The 
description of a GAF score of 35 gives no indication that the 
veteran should be awarded a 100 percent disability rating.  
In fact, the Board notes that, had the examiners considered 
the veteran to be more disabled, they would have assigned 
lower GAF scores which would have demonstrated that fact.  In 
our opinion, a GAF score of 35 does not correlate to a 
disability rating higher than 70 percent.

The Board recognizes that the veteran believes that his major 
depressive disorder symptoms are worse than demonstrated by a 
70 percent disability rating.  His sincerity is not in 
question.  However, while the veteran is certainly capable of 
providing evidence of symptoms, a layperson is generally not 
capable of opining on matters requiring medical knowledge, 
such as the degree of disability produced by the symptoms or 
the condition causing the symptoms.  See Robinette v. Brown, 
8 Vet. App. 69, 74 (1995); Heuer v. Brown, 7 Vet. App. 379, 
384 (1995); Espiritu v. Derwinski, 2 Vet. App. at 494 (1992).  
See also Harvey v. Brown, 6 Vet. App. 390, 393-94 (1994).

Consequently, the Board finds that the evaluation assigned in 
this decision adequately reflects the clinically established 
impairment experienced by the veteran.  As the evidence 
preponderates against the claim for an increased rating for 
the veteran's major depressive disorder, the benefit-of-the-
doubt doctrine is inapplicable, and an increased rating must 
be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra.

Finally, in view of the Court's holding in Fenderson, the 
Board has considered whether the veteran was entitled to a 
"staged" rating for his service-connected disability, as 
the Court indicated can be done in this type of case.  
However, upon reviewing the longitudinal record in this case, 
we find that, at no time since the filing of the veteran's 
claim for service connection, in November 1998, has his major 
depressive disorder been more disabling than as currently 
rated under this decision.




ORDER

A disability evaluation in excess of 10 percent for otitis 
externa is denied.

An initial disability evaluation in excess of 70 percent for 
major depressive disorder is denied.




___________________________
	ANDREW J. MULLEN
	Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs