Citation Nr: 1126591 Decision Date: 07/15/11 Archive Date: 07/21/11 DOCKET NO. 06-33 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating higher than 40 percent for service-connected Hepatitis C with cirrhosis. 2. Entitlement to an initial rating higher than 10 percent for service-connected depressive disorder NOS (not otherwise specified). 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from August 1968 to August 1970. These matters come before the Board of Veterans' Appeals (BVA or Board) from May 2006 and April 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In the May 2006 rating decision, the RO granted an increased evaluation of 20 percent for Hepatitis C, effective March 8, 2005. In an August 2006 rating decision, the RO granted an increased evaluation of 40 percent for Hepatitis C, also effective March 8, 2005. Despite the grant of this increased evaluation, the Veteran has not been awarded the highest possible evaluation. As a result, he is presumed to be seeking the maximum possible evaluation. The issue remains on appeal, as the Veteran has not indicated satisfaction with the 40 percent rating. A.B. v. Brown, 6 Vet. App. 35 (1993). The Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO in February 2007; a transcript of that hearing is of record. In the April 2009 rating decision, the RO granted entitlement to service connection for depressive disorder NOS, assigning an initial 10 percent evaluation, effective May 25, 2006. The issue of entitlement to a higher disability evaluation based upon an initial grant of service connection remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993); Fenderson v. West, 12 Vet. App. 119 (1999). FINDINGS OF FACT 1. Hepatitis C with cirrhosis is not manifested by daily fatigue, malaise, and anorexia with substantial weight loss (or other indication of malnutrition) and hepatomegaly, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. 2. Depressive disorder NOS is manifested by symptoms such as depressed mood, anxiety, sleep impairment, decreased concentration, and global assessment of functioning scores ranging between 50 to 70. 3. The Veteran's service-connected disabilities, including chronic Hepatitis C with cirrhosis (rated 40 percent disabling) and depressive disorder NOS (rated 30 percent disabling) with a combined rating of 60 percent, do not meet the requisite scheduler percentages for TDIU. 4. The Veteran's service-connected disabilities, when evaluated in association with his educational attainment and occupational experience, do not preclude all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 40 percent for service-connected Hepatitis C with cirrhosis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.112, 4.114, Diagnostic Code 7354 (2010). 2. The criteria for an initial rating of 30 percent, but no higher, for service-connected depressive disorder NOS are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9434 (2010). 3. The criteria for entitlement to TDIU are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.16 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010). Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seeks to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the regional office. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for an increased disability rating, the VCAA requirement is generic notice, that is, namely, evidence demonstrating a worsening or increase in severity of the disability, the effect that worsening has on employment, and general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in April 2006, June 2008, and November 2008 that fully addressed all notice elements. The letters informed the Veteran of what evidence was required to substantiate the claims and of the Veteran's and VA's respective duties for obtaining evidence. As indicated above, certain VCAA notice was provided after the initial unfavorable AOJ decision. However, the Federal Circuit Court and Veterans Claims Court have since further clarified that the VA can provide additional necessary notice subsequent to the initial AOJ adjudication, and then go back and readjudicate the claim, such that the essential fairness of the adjudication - as a whole, is unaffected because the appellant is still provided a meaningful opportunity to participate effectively in the adjudication of the claim. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (where the Federal Circuit Court held that a SOC or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran's claims were adjudicated subsequently in a November 2010 SSOC. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records, pertinent medical records, and providing an examination when necessary. Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records are associated with the claims file, as were private medical records, and post-service VA examination reports and treatment records. There is no indication that there are any outstanding pertinent documents or records that have not been obtained, or that were not adequately addressed in documents or records contained within the claims folder. The Veteran was provided with VA examinations relating to his service-connected liver and psychiatric disabilities as well as his employability in August 2005, July 2006, November 2008, March 2009, September 2010, and November 2011. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's liver and psychiatric disabilities since the 2010 VA examinations. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. The Board finds the above VA examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate the Veteran's disabilities and employability under the applicable rating criteria and regulations. The Board therefore finds that no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Entitlement to a Rating In Excess of 40 Percent for Service-Connected Hepatitis Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two ratings shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following matter is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In written statements and hearing testimony, the Veteran has asserted that his Hepatitis C with cirrhosis is more severe than what is represented by a 40 percent rating. The Veteran is currently rated as 40 percent disabled under 38 C.F.R. § 4.114, Diagnostic Code 7354. A 40 percent rating is warranted when Hepatitis C is manifested by daily fatigue, malaise, and anorexia with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. See 38 C.F.R. § 4.114, Diagnostic Code 7354 (2010). A rating of 60 percent is warranted when Hepatitis C is manifested by daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition) and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. Id. A rating of 100 percent is warranted when Hepatitis C is manifested by near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Id. Sequelae, such as cirrhosis or malignancy of the liver are to be rated under an appropriate diagnostic code, but the same signs and symptoms are not to be used as the basis for evaluation under Diagnostic Code 7354 and under a diagnostic code for sequelae. See 38 C.F.R. § 4.114, Diagnostic Code 7354, Note (1) (2010). For purposes of evaluating conditions under Diagnostic Code 7354, "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. See 38 C.F.R. § 4.114, Diagnostic Code 7354, Note (2) (2010). The Veteran was afforded a VA liver examination in August 2005. The Veteran reported that he was diagnosed with Hepatitis C in 2003 and that prior to his diagnosis he used to feel very tired all the time and had fatigue. He reported that after treatment for Hepatitis C, he felt weaker with associated arthralgia and occasional malaise. The Veteran indicated that his medication caused him lack of appetite, constipation, chills, weakness, and weight loss. The Veteran's weight was listed as 156 pounds. On physical examination, there was no evidence of superficial abdominal pain, splenomegaly, jaundice, palmar erythema, or spider angiomata. The examiner diagnosed chronic Hepatitis C with cirrhosis. The Veteran was afforded a VA liver examination in July 2006. The Veteran reported that he continued to experience general malaise, recurrent nausea, occasional vomiting with regular appetite, and occasional bloating of the abdomen that prevented him from bending forward. He stated that he spent most of the time in bed and felt very weak and tired. He also reported recurrent right upper quadrant pain but no significant change in weight, persistent muscle pain, and articular pain with occasional rash in the inner aspect of the leg. Examination revealed right upper quadrant tenderness with hepatomegaly on palpation. There was absence of ascites and no evidence of portal hypertension. The Veteran was afforded another VA liver examination in November 2008. He reported more than 10 incapacitating episodes in the prior twelve-month period, lasting a duration of three days. He reported weakness, malaise, anorexia, abdominal distension, and abdominal pain with generalized bilateral joint pain. His weight was 160 pounds and he was noted to have a weight loss of 10 percent compared to baseline. There was no evidence of malnutrition. Liver size was classified as enlarged but there was no evidence of ascites. Liver consistency was listed as firmer than usual with right upper quadrant tenderness. There was no evidence of portal hypertension. The Veteran was diagnosed with chronic Hepatitis C, refractory to treatment and advanced active liver cirrhosis, secondary to Hepatitis C. In a September 2010 VA liver examination report, the Veteran complained of recurrent general malaise, fatigue, weakness, arthralgias, nausea, and right upper quadrant pain. He mentioned variations in weight, sometimes gaining a few pounds and sometimes losing, but indicated he had a stable appetite. He denied fever, vomiting, diarrhea, or constipation as well as having any incapacitating episodes during the prior twelve-month period. The Veteran stated he had daily right upper quadrant pain, weight loss, and intermittent fatigue, malaise, and nausea. The Veteran's weight was 155 pounds, a loss of less than 10 percent compared to baseline. The Veteran's liver was noted to be enlarged and firmer than usual but there was no evidence of ascites or malnutrition. There was right upper quadrant tenderness, palmar erythema, and spider angiomata. The Board has considered the full history of the Veteran's service-connected Hepatitis C with cirrhosis. A rating in excess of 40 percent, under Diagnostic Code 7354 is not warranted because the Veteran does not have symptoms of daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition) and hepatomegaly, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past twelve month period, but not occurring constantly. The Veteran has not exhibited symptoms of a rating higher than 40 percent. For example, in VA examinations from August 2005, July 2006, November 2008, and September 2010, he did not experience substantial weight loss (with weights ranging from 155 to 160 pounds over a course of five years), there was no indication of malnutrition, and during the September 2010 VA examination he denied having any episodes of incapacitation during the prior twelve months, all of which weigh against a higher evaluation under Diagnostic Code 7354. Although the Veteran reported 10 incapacitating episodes during the November 2008 VA examination, he stated they each lasted a duration of three days. This duration does not meet the requirements for a 60 percent rating and there is also no indication that the claimed incapacitating episodes met the requirements in Note (2) under Diagnostic Code 7354 for an "incapacitating episode." Furthermore, the term "substantial weight loss" referred to in Diagnostic Code 7354 means a loss of greater than 20 percent of the Veteran's baseline weight, sustained for three months or longer. See 38 C.F.R. § 4.112. As evidenced in August 2005, November 2008, and September 2010 VA examinations discussed above, the Veteran's weight loss has never been greater than 20 percent of his baseline weight. The Board has also considered the application of additional Diagnostic Codes, including Diagnostic Code 7312 for cirrhosis of the liver. To warrant a rating of 50 percent, under Diagnostic Code 7312, there must be cirrhosis of the liver with history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis). See 38 C.F.R. § 4.114, Diagnostic Code 7312 (2010). A rating of 70 percent is warranted for cirrhosis of the liver with a history of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis) but with periods of remission between attacks. Id. A rating of 100 percent is warranted for cirrhosis of the liver with generalized weakness, substantial weight loss, and persistent jaundice, or; with one of the following refractory to treatment: ascites, hepatic encephalopathy, hemorrhage for varices or portal gastrophy (erosive gastritis). Id. Evidence of record does not indicate that the Veteran has ever had an episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy. Thus, the assignment of an increased rating under Diagnostic Code 7312 is not applicable. Furthermore, rating the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In this case, the Veteran is competent to report his increased Hepatitis C with cirrhosis symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, the clinical evidence of record does not indicate that the assignment of any increased evaluation is warranted. As the Veteran's statements and hearing testimony are inconsistent with the evidence of record, the Board does not find his assertions of increased symptomatology to be credible in this respect. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("In the case of oral testimony, a hearing officer may properly consider the demeanor of the witness, the facial plausibility of the testimony, and the consistency of the witness' testimony with other testimony and affidavits submitted on behalf of the [V]eteran."); Jones v. Derwinski, 1 Vet. App. 210, 217 (1991) (finding that "the assessment of the credibility of the veteran's sworn testimony is a function for the BVA in the first instance"). Thus, evidence of increased Hepatitis C with cirrhosis symptomatology has not been established, either through medical or lay evidence. For all the foregoing reasons, the Veteran's claim for entitlement to a rating higher than 40 percent for service-connected Hepatitis C with cirrhosis must be denied. The Board has considered staged ratings, under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted. Since the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that the Veteran's Hepatitis C with cirrhosis does not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extraschedular consideration. The level of severity of his Hepatitis C with cirrhosis is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim does not warrant referral for extraschedular consideration under 38 C.F.R. § 3.321. Entitlement to an Initial Rating in Excess of 10 Percent for Service-Connected Depressive Disorder NOS Entitlement to service connection for depressive disorder NOS was established by the RO in an April 2009 rating decision, at which time a 10 percent rating was assigned under 38 C.F.R. § 4.130, Diagnostic Code 9434, effective May 25, 2006. The Veteran is seeking entitlement to an initial rating in excess of 10 percent for his service-connected psychiatric disability. The Court has held that, in a claim of disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). As noted above, the Board further acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following matter is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran is currently rated as 10 percent disabled under 38 C.F.R. § 4.130, Diagnostic Code 9434. The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130, Diagnostic Code 9434, is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). Id. A rating of 30 percent is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9434 (2010). A rating of 50 percent is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A GAF of 41 to 50 is defined as 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 GAF of 51 to 60 is defined as 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). A GAF of 61 to 70 is defined as some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful relationships. When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran testified during his February 2007 DRO hearing that he was in a state of depression because of his Hepatitis C. A June 2008 private psychiatric report indicates that the Veteran reported being restless, unable to concentrate, having difficulty sleeping, irritable, and experiencing a decrease in appetite. The Veteran stated that during the day he walks in his backyard or around the house, and travels with relatives in a private car. He reported that he did not participate in community activities and was distant and avoidant with neighbors and friends. He also stated that his emotional condition prevented him from concentrating on any given task. Mental status examination findings were listed as oriented, dressed casual and neat, unkempt hair, good personal hygiene, anxious mood, appropriate affect, and no evidence of obsessions, compulsions, phobias, suicidal or homicidal ideation or planning, self-destructive impulses, or delusions. He was noted to exhibit uncertainty about his emotional and physical health and its outcome, and to be fearful of dying. Attention was not maintained all the time; the Veteran was distracted and reacted towards any sound outside the office. He was not able to recite months and weekdays backwards and was not able to subtract 3's from 30. The examiner listed a diagnosis of severe generalized anxiety disorder and assigned a GAF score of 50/55. The Veteran was afforded a VA mental disorders examination in March 2009. He complained of ruminations, racing thoughts, being tense, restless, and socially withdrawn. Mental status examination revealed clean general appearance, unremarkable psychomotor activity, an inability to do serial 7's but able to spell a word backward and forward, orientation to person, time, and place, good impulse control with no episodes of violence, normal memory, ability to maintain minimum personal hygiene, and no noted hallucinations, delusions, homicidal or suicidal thoughts, or obsessive or ritualistic behavior. The Veteran was diagnosed with depressive disorder NOS and was assigned a GAF score of 65. VA outpatient records indicate the Veteran was seen at a VA outpatient clinic in December 2009 for a psychiatric evaluation. He reported crying spells, negative thinking, irritability, and loss of concentration. Examination revealed the Veteran was well groomed but his mood was depressed. His thought process was logical and organized. There was no evidence of auditory or visual hallucinations or delusions. His memory was normal. He was diagnosed with mood disorder due to general medical condition and assigned a GAF score of 65. The Veteran was afforded a VA examination in November 2010. The Veteran reported that he worried about his Hepatitis C as well as had fatigue and rapid thoughts. The examiner noted that during the interview the Veteran was hostile, defensive, arrogant, demanding, and verbally aggressive. It was noted that the Veteran had been diagnosed with anti-social personality traits. Mental status evaluation findings were listed as clean appearance, normal memory, casually dressed, intact attention, able to do serial 7's and spell a word forward and backward, intact to person, time, and place, and no delusions, hallucinations, ritualistic or obsessive behavior, panic attacks, homicidal or suicidal thoughts, problems with activities of daily living, or episodes of violence. The Veteran was diagnosed with depression NOS and a GAF score of 70 was assigned. The examiner stated that the Veteran's depression was stable, very mild and controlled at the time. After a careful review of all pertinent evidence in light of the above-noted criteria and with resolution of all reasonable doubt in the Veteran's favor, the Board has determined that the Veteran's depressive disorder symptomatology meets or more nearly approximates the severity of occupational and social impairment contemplated for the assignment of a 30 percent rating, but no higher, under the criteria in 38 C.F.R. § 4.130, Diagnostic Code 9434. 38 C.F.R. § 4.7 (2010). The Veteran's assigned GAF scores ranged from 50 to 70, and he was noted to suffer from anxiety, depressed mood, sleep impairment, difficulty concentrating, and irritability. Also, as evidenced during VA examination reports dated in March 2009 and November 2010 as well as the June 2008 private examination, the Veteran has difficulty concentrating and occasional difficulty performing and completing tasks. A rating higher than 30 percent is not warranted as the Veteran did not have noted psychiatric symptomatology including flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; or impaired abstract thinking. 38 C.F.R. § 4.130, Diagnostic Code 9434. During the June 2008 psychiatric evaluation, he had good personal hygiene and appropriate affect. There was no evidence of obsessions, compulsions, hallucinations, suicidal or homicidal ideation or planning, impaired impulse control, panic attacks, memory impairment, or delusions. Additionally, the November 2010 VA examiner specifically highlighted that the Veteran's mental disability did not interfere with his social or occupational functioning and characterized his depression as stable, very mild, and controlled. In this case, the Veteran is competent to report his increased psychiatric symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, the clinical evidence of record does not indicate that the assignment of any increased evaluation is warranted. As the Veteran's statements are inconsistent with the evidence of record, the Board does not find his assertions of increased symptomatology to be credible in this respect. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("In the case of oral testimony, a hearing officer may properly consider the demeanor of the witness, the facial plausibility of the testimony, and the consistency of the witness' testimony with other testimony and affidavits submitted on behalf of the [V]eteran."); Jones v. Derwinski, 1 Vet. App. 210, 217 (1991) (finding that "the assessment of the credibility of the veteran's sworn testimony is a function for the BVA in the first instance"). Thus, evidence of increased depressive disorder symptomatology has not been established, either through medical or lay evidence. For all the foregoing reasons, the Veteran's claim for entitlement to an initial rating in excess of 30 percent for service-connected depressive disorder NOS must be denied. The Board has considered additional staged ratings, under Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted. Since the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, the Board finds that the Veteran's depressive disorder NOS does not warrant referral for extraschedular consideration. The level of severity of his depressive disorder is adequately contemplated by the applicable diagnostic criteria. The criteria provide for higher ratings, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Thun v. Peake, 22 Vet. App. 111 (2008). Accordingly, the claim will not be referred for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). Entitlement to TDIU The Veteran is seeking a total disability rating based on individual unemployability. Total disability ratings for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. § 3.341(a); see 38 C.F.R. § 4.19 (stating that age may not be a factor in evaluating service-connected disability or unemployability). The Veteran's service-connected chronic Hepatitis C with cirrhosis is rated 40 percent disabling. In addition, depressive disorder NOS is rated 30 percent. The Veteran's combined rating for all his service-connected disabilities is 60 percent. As such, the Veteran does not meet the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a total rating based on individual unemployability, because the Veteran's combined rating for his service-connected disabilities is not 70 percent or more. Therefore, he is not entitled to TDIU on a scheduler basis. Where the percentage requirements set forth above are not met, entitlement to TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his employment and educational history. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extraschedular consideration all cases of veterans, who are unemployable due to service-connected disability, but who fail to meet the percentage standards set forth in paragraph (a) of this section. 38 C.F.R. § 4.16(b). Unlike the criteria for an extraschedular rating under 38 C.F.R. § 3.321, the grant of an extraschedular rating for TDIU under 38 C.F.R. § 4.16 is based on a subjective standard that seeks to determine if a particular veteran is precluded from employment based on his service-connected disabilities. See VAOPGCPREC 6-96 (1996). This means that the Board should take into account the veteran's specific circumstances including his disability, his education, and his employment history when determining if he is unable to work. The Board notes that the Veteran's June 2008 application for TDIU indicated that he has completed a high school education and last worked full time in 1989 as a maintenance worker, after becoming too disabled to work due to his disabilities. Significantly, however, the Veteran was afforded VA examinations, in September and November 2010, and the examiners offered opinions that weigh against the claim. During the September 2010 VA liver examination, the examiner noted that the Veteran should be able to obtain, perform, and secure a job requiring a semi-sedentary or sedentary duty work. During the November 2010 VA mental disorders examination, the examiner noted that the Veteran's mental disorder symptoms were not severe enough to interfere with occupational and social functioning, and opined that the Veteran is not unemployable on account of his mental condition. The Board acknowledges the Veteran's assertions that he is unable to work due to his service-connected disabilities. As the Veteran statements are inconsistent with the probative evidence of record, which does not show the Veteran is unemployable solely due to his service-connected disabilities, the Board finds that his assertions of unemployability lack credibility and are without probative value. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (as a finder of fact, the Board, when considering whether lay evidence is satisfactory, may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing). For the foregoing reasons, the claim for entitlement to a TDIU rating must be denied. As the Veteran has not been found to be unemployable due to his service-connected disabilities, there is no basis to refer the case to the Director of Compensation and Pension for an extraschedular determination. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit- of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As such, the appeal is denied. ORDER Entitlement to a rating higher than 40 percent for service-connected Hepatitis C with cirrhosis is denied. The criteria for a rating of 30 percent, but no higher, for the Veteran's service-connected depressive disorder NOS is granted, subject to statutory and regulatory provisions governing the payment of monetary benefits. Entitlement to TDIU is denied. ____________________________________________ J. D. DEANE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs