Citation Nr: 0810314 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-32 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an effective date earlier than September 22, 2000 for a grant of service connection for depression. 2. Entitlement to an effective date earlier than August 11, 2003 for the assignment of a 30 percent disability rating for a right knee disability. 3. Entitlement to an initial disability rating in excess of 30 percent for depression. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs ATTORNEY FOR THE BOARD Daniel Markey, Associate Counsel INTRODUCTION The veteran served on active duty from December 1992 to February 1993. This appeal to the Board of Veterans' Appeals (Board) is from two rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. By rating decision of November 2003, the RO increased the veteran's right knee disability rating to 30 percent, effective August 11, 2003. Then, by rating decision of February 2006, the RO implemented the Board's January 2006 grant of service connection for depression and issued a rating decision wherein the veteran was assigned a disability rating of 30 percent for the period from September 22, 2000 to February 28, 2005, and 10 percent for the period beginning March 1, 2005. By rating decision dated July 2006, the RO increased the veteran's disability rating for depression to 30 percent for the period beginning March 1, 2005. Although the evaluation of the veteran's disability was subsequently raised, the rating remains less that the maximum benefit available, and thus that increase does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The record also reflects that in April 2007 the veteran submitted additional evidence directly to the Board, in the form of private medical reports, which was accompanied by a waiver of initial consideration by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2007). FINDINGS OF FACT 1. A claim of entitlement to service connection for depression was not received prior to September 22, 2000. 2. The earliest effective date for the establishment of 30 percent schedular evaluation for a right knee disability is August 11, 2003, the date of receipt of claim. 3. The veteran's depression is manifested by impairment that most nearly approximates occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSIONS OF LAW 1. The criteria for the assignment of an effective date earlier than September 22, 2000 for a grant of service connection for depression are not met. 38 U.S.C.A. §§ 5101(a), 5110(a) (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2007). 2. The criteria for a 30 percent disability rating for a right knee disability were not met prior to August 11, 2003. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. 3. The criteria for a disability rating higher than 30 percent for depression are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the veteran provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. However, the Court also stated that the failure to provide such notice in connection with adjudications prior to the enactment of the VCAA was not error and that in such cases, the claimant is entitled to "VCAA-content complying notice and proper subsequent VA process." Id. at 120. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, No. 2006-7303 (Fed. Cir. Apr. 5, 2007). However, the Court also stated that the failure to provide such notice in connection with adjudications prior to the enactment of the VCAA was not error and that in such cases, the claimant is entitled to "VCAA-content complying notice and proper subsequent VA process." Id. at 120. The veteran's effective date and increased initial rating for depression claims are downstream claims from an initial claim for service connection for depression that was filed in October 2000, prior to the enactment of the VCAA. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Regarding the issue of depression, the veteran is challenging the initial evaluation and effective date assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. As the two appeals relating to the veteran's depression concern the propriety of an initial evaluation and effective date, rather than a claimed increase in existing evaluation, it is readily distinguishable from the type of situation addressed in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). In that case, the Court required specific notification duties in increased evaluation cases, where a worsening had been alleged. The Court stressed the difference between the two types of claims, noting that an increased compensation claim centers primarily on evaluating the worsening of a disability that is already service connected, whereas in an initial claim for disability compensation, the evaluation of the claim is generally focused on substantiating service connection by evidence of an in-service incident, a current disability, and a nexus between the two. Id., slip. op. at 5. With respect to the veteran's right knee claim, he is challenging the effective date assigned in conjunction with the award of an increased rating issued by the RO in November 2003. While the considerations described in Vasquez, supra do conceivably apply in this context, because an increased rating claim effective date is based, in part, on the earliest date at which an increased disability is factually ascertainable, the Board finds that any error in the adequacy of initial VCAA notice are non-prejudicial. In this regard, the Board notes that the veteran was apprised of the requirements of an increased rating claim in a September 2003 letter. In the November 2003 decision which increased the veteran's right knee disability rating from 10 to 30 percent, the RO informed the veteran as to why his rating was assigned, addressing the applicable criteria. Moreover, the regulations pertaining to an earlier effective date claim were included in the September 2005 Statement of the Case (SOC). In correspondence received January 2005, the veteran referred to knee joint instability and an inability to walk, indicating that he has actual knowledge of the criteria at issue, so there is no prejudice in proceeding with adjudication of his claim. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), The Board also notes that the veteran has been afforded appropriate VA examinations and service medical records and pertinent VA medical records have been obtained. Neither the veteran nor his representative has identified any outstanding evidence, to include medical records that could be obtained to substantiate the claims. The Board is also unaware of any such outstanding evidence. In sum, the Board is satisfied that the RO properly processed these claims following the provision of the required notice and that any procedural errors in its development and consideration of these claims were insignificant and non prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the Board will address the merits of the claims. General Legal Criteria Effective Date A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2007). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. For service connection claims, the effective date is the day after separation from service or date entitlement arose, if a claim is received within one year of separation from service, otherwise the general rule applies. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). Each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2007). 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 (2007). Major depression is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9434 (2007), which provides that a 30 percent rating 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). A 50 percent rating 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating contemplates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9434 (2007). A 100 percent rating 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. 38 C.F.R. § 4.130, Diagnostic Code 9434 (2006). The GAF score is based on a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed.), p.32.). GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Id. Scores ranging from 51 to 60 reflect 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). Id. A score of 61-70 is indicated where there are, "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 interpersonal relationships." Id. Analysis Effective Date for Service Connection of Depression The veteran contends that he is entitled to an earlier effective date for the award of service connection for depression. He maintains that the disability has been present since service and that he should be compensated accordingly. The veteran applied for service connection for a back disability in July 1993. At this time he made no mention of a psychiatric disability relating to active duty. VA records show that the veteran was hospitalized for substance abuse problems in August 1995 and February 1996. The use of psychotropic medications was indicated, and the veteran did show psychiatric symptoms during these hospitalizations. Particularly, progress notes from August 1995 VA records show the veteran was having depressive symptoms that were then attributed to his substance abuse. However, there is no diagnosis of depression. More importantly, there is no indication that the veteran sought service connection at this time. His stated purpose for seeking treatment was detoxification and stabilization from drugs and alcohol. As the veteran had not previously filed a claim for service connection, the Board has no reason to consider this hospitalization report a claim to reopen. Cf. 38 C.F.R. § 3.157. VA outpatient records from September 1996 indicate the veteran was relapsing with drug and alcohol dependence. He was described as being depressed and diagnosed with dysthymia. He said that the reason he sought treatment at that time was because he needed to sort out why he continues to relapse even when his life is going well. He did not express an intention to file a claim for benefits, nor make comments that could be construed in that manner. VA substance abuse treatment center records from July 1999 include an intake note that states the veteran sought treatment for dependency problems; there was no mention of the veteran's desire to obtain service connection for depression. Subsequent records from that time period note the veteran's ongoing dependency problems, and these notes do discuss his vocational struggles. He was diagnosed with major depressive disorder, recurrent, in full remission. However, there is again nothing in these records which can be construed as an indication that he sought service connection for depression. Subsequent VA psychiatric treatment records through September 2000 are, likewise, negative for indicia of the veteran's intentions to file a claim for service connection for depression. VA's statutory duty to assist means that VA must liberally read all documents submitted to include all issues presented. See EF v. Derwinski, 1 Vet. App. 324, 326 (1991). However, in Brannon v. West, 12 Vet. App. 32 (1998), the Court observed that while the Board must interpret an appellant's submissions broadly, the Board is not required to conjure up issues that were not raised by the appellant. While the veteran underwent psychiatric treatment for several years prior to September 22, 2000, no reading of the evidence discussed thus far would give any reasonable fact finder cause to believe that the veteran sought service connection for depression during that time period. VA outpatient treatment notes from September 22, 2000 note that an evaluation was being done for the veteran's depression. While the veteran's claim for service connection for depression was received October 18, 2000, a report of contact from November 2000 indicates that the veteran had submitted a claim of service connection for PTSD on September 22, 2000. Construing this reported filing liberally, September 22, 2000 would be the earliest date upon which the veteran can be considered to have filed a claim of service connection for a psychiatric disability. This is then the earliest appropriate effective date for the grant of service connection for depression that was awarded in response to this claim. In support of his contentions, the veteran submitted letters from a private social worker and a private psychologist. These letters state, respectively, that the veteran should be granted service connection effective from his time of discharge from service or from the onset of depression- related symptoms in 1996. Basically, they argue that the medical evidence shows his disability was due to physical and mental considerations which are evidenced by the record from those time periods. While the Board does take the etiology of the veteran's disability into consideration when establishing service connection, these arguments do not support his call for an earlier effective date, which is based on the receipt of a claim from the veteran as described in 38 C.F.R. §§ 3.151, 3.155, 3.400 (2007). In sum, when the veteran's treatment records and statements are considered, it is clear that he was not seeking service connection for depression prior to the reported September 22, 2000 filing. Therefore, the Board concludes that the veteran's claim for service connection for depression was not received by the RO prior to September 22, 2000. By operation of law, the effective date can be no earlier than September 22, 2000. Effective date for a 30 Percent Rating for a Right Knee Disability The veteran now contends that his right knee was "seriously impaired" from 1999 to present, thus warranting an earlier effective date of the assignment of an increased rating. In addition to the rules for establishing an effective date discussed above, in the context of claim for an earlier effective date of an increased rating, an award of increased compensation will be effective the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from such date. Otherwise, the award will be effective the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o). In VAOPGCPREC 12-98 (Sept. 23, 1998), VA's General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred; that this section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. Service connection for the veteran's right knee disability was initially granted in an October 2002 rating decision, wherein the veteran was assigned an initial disability rating of 10 percent, effective September 8, 1999. While the veteran did file a notice of disagreement with this decision in November 2002, he subsequently withdrew his appeal in correspondence filed June 2003. Therefore, this appeal is deemed withdrawn. See 38 C.F.R. § 20.204. Then, the veteran filed a claim for increased rating for his right knee disability in August 11, 2003. By rating decision dated November 2003, the RO increased the veteran's right knee disability rating to 30 percent, effective August 11, 2003. As that effective date is the date the veteran filed the instant claim; the prior claim for increase was withdrawn; and there is no evidence of any other prior filing, either formal or informal; then August 11, 2003 is the earliest an effective date upon which the veteran's increased rating can be established based on his date of claim. It follows that the only means of establishing an earlier effective date is finding that his 30 percent rating was factually ascertainable within the one-year period before the receipt of the August 11, 2003 claim for increase. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (2007). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. §§ 3.102, 4.3 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2007). 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic code, a 10 percent rating is for application for each such major joint affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of flexion of a leg warrants a noncompensable evaluation if flexion is limited to 60 degrees, a 10 percent evaluation if flexion is limited to 45 degrees, a 20 percent evaluation if flexion is limited to 30 degrees, or a 30 percent evaluation if flexion is limited 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of a leg warrants a noncompensable evaluation if extension is limited to 5 degrees, a 10 percent evaluation if extension is limited to 10 degrees, a 20 percent evaluation if extension is limited to 15 degrees, or a 30 percent evaluation if extension is limited to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate, or a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Removal of semilunar cartilage warrants a 10 percent evaluation if it is symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint will be rated 20 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5258. VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). Further, VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). The 30 percent rating assigned in the RO's November 2003 rating decision was based on a finding that the veteran's right knee symptoms nearly approximated severe recurrent subluxation or lateral instability under 38 C.F.R. § 4.71A, Diagnostic Code 5257 (2007). The Board also notes that in a prior rating decision the RO assigned the veteran a separate 10 percent evaluation for arthritis of the right knee under 38 C.F.R. § 4.71A, Diagnostic Code 5003 (2007). So, this was the only rating in effect during the year prior to the veteran's claim. Regardless, the Board will examine all potentially applicable diagnostic criteria to examine whether a higher rating was factually ascertainable during that period. As early as the veteran's January 2000 VA orthopedic examination, some right leg weakness and muscle atrophy was observed, and found to be attributable to the veteran's right knee arthritis. VA x-ray records from October 2000 note minimal osteoarthritic changes in the medial and lateral compartments, but no other abnormalities. These findings were modified somewhat at the time of the January 2002 VA orthopedic note and x-ray report, where the veteran was also found to have a likely degenerate medial meniscus. However, there is no evidence that the veteran's meniscus is dislocated at this time, so a separate rating under 38 C.F.R. § 4.71a, Diagnostic Code 5258 is not for consideration. While noting that the veteran had extensive atrophy and weakness in his right thigh muscle, this report indicates the veteran had no knee effusion, a full range of motion and ligament testing was stable. A February 2002 VA physical therapy note describes the veteran's complaints of his right knee having pain, giving way, proving instable with twisting, and causing stiffness when standing. At a May 2002 VA examination, the veteran complained of pain, weakness, stiffness, giving way and locking in his right knee, noting he experienced this for a couple years. The veteran added that his knee gives way when he has too much weight on it, and he expressed fear that his kneecap might come out when he twists his knee. Upon physical examination, the veteran was observed to walk with significant limping, favoring his right side. The veteran's right patella was described as tilted and he was diagnosed with patellofemoral arthrosis and mild arthritis of the right knee. This evidence, unfortunately, did not produce any clinical information that could support the assignment of an additional, or higher, rating for the veterans' service- connected right knee. Specifically, there is no evidence of limitation of motion of the right knee that would meet the criteria for a 30 percent rating in accordance with Diagnostic Codes 5260 or 5261. Moreover, while the veteran was observed to have a tilted right patella and to walk with a "significant" limp, the veteran was not indicated to need a cane or other assistive devise to ambulate, and there is otherwise no medical or lay evidence present at that time demonstrating severe right knee impairment due to lateral instability or recurrent subluxation required for the assignment of a 30 percent disability under Diagnostic Code. Taken as a whole, all of this evidence predates the one year period prior to the veteran's date of claim, August 11, 2003. However, it is the only evidence of record that could possibly have shown that an earlier effective date for the assignment of a thirty percent disability rating was factually ascertainable. Because this evidence does not support such a finding, an earlier effective date for the assignment of an increased 30 percent rating for the veteran's right knee disability is not in order. In making this determination, the Board has considered the veteran's contentions that his right knee has caused him problems since 1999. Unfortunately, as discussed, the establishment of an effective date is not based solely on the onset of symptoms or the veteran's perceived increase in disability. Increased Rating for Depression The veteran contends that his depression warrants a higher rating than is currently assigned. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2007) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board also reviewed all evidence of record pertaining to the history of the service-connected psychiatric disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. In addition, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to the disability. In this case, the RO has assigned a 30 percent disability rating under 38 C.F.R. § 4.130, Diagnostic Code 9434 due to VA and private records showing the veteran had GAF scores between 55 and 60, and a February 2004 private intake evaluation/ mental status examination that assessed the veteran with longstanding depressive symptoms, extremely verbal conduct and difficulty staying on task. The Board adds that this February 2004 private report also describes a flattened affect, diminished appetite and initial insomnia. Taken as a whole, these symptoms do approximate the criteria for a 30 percent rating under Diagnostic Code 9434. As for whether the veteran's major depression more nearly approximates the criteria associated with a 50 percent rating, the evidence shows that the occupational and social impairment from his disorder does not reach this level, but rather, it more nearly approximates the criteria associated with a 30 percent rating throughout the entire appeal period. VA outpatient records from January 2000 note the veteran looked at the ground, spoke in decreased volume, had decreased psychomotor activity, had a calm but tense mood, displayed a dysphoric but constricted affect, and demonstrated coherent and circumstantial thought process. He was diagnosed with major depressive disorder, among other conditions, and assigned a GAF score of 50. Subsequent records from April 2001 describe a history depression. The veteran was working as a taxi driver and was assigned a GAF score of 61. This GAF score was repeated in a February 2002 VA mental health note, which added that the veteran's past year GAF was 65. So this evidence indicates a mild to moderate level of symptomatology. In a VA mental health note from August 2002, the veteran reported feeling halfway to severe depression. He indicated that he was concerned with his verbal lashing out. He also complained of waking up anxious a couple times per week from either nightmares or worrying. He was working as a part-time cab driver and security guard. In addition, he was attending church. So at this time, while the veteran's sleep was somewhat impaired, he was able to function at work, showing no evidence or reduced reliability and productivity due to his symptoms. Mental status examination from that time noted that the veteran was neatly dressed, well groomed, alert, oriented and cooperative. His mental status examination was basically normal, apart from his dysthymic mood. He was assigned a GAF score of 55. His Prozac prescription was continued. This report was essentially duplicated in a September 2002 VA mental health note. A VA psychiatrist saw the veteran in December 2002 and upon mental status evaluation, he described the following: the veteran was neatly dressed, well groomed, alert, oriented, and cooperative. He noted that no abnormal movements were noted, and the veteran was without psychomotor agitation or retardation. His speech was normal in volume modulation and prosody. His affect was reactive and appropriate to content. The veteran's mood was characterized as mildly dysthymic. His thoughts were coherent and goal directed, without derailment. He had shame and survivor guilt. Based on these determinations, the psychiatrist evaluated the veteran as being stable overall, with some dysthymic mood reported a few times per year, but without major depression. The veteran was not suicidal and felt engaged in plans for the future. VA outpatient notes from April 2003 describe the veteran's sadness upon his father's death. He expressed some remorse, but was found to be not more depressed. Other outpatient treatment notes from June 2003 describe the veteran's reports of grief and depression for several days, followed by several days of a better mood, with good energy and enjoyment. Upon mental status examination, the veteran had appropriate affect, sadness when talking about his father's death, a mildly dysphoric mood, no suicidal or homicidal ideation, no psychotic symptoms, and appropriate discussion of concerns regarding his daughters schooling. Other notes from November and December 2003 indicate the veteran had chronic low level depression that was unresponsive to medication. While the veteran discussed missing his father with the approaching holidays, a mental status examination noted appropriate affect, fair mood, no suicidal or homicidal ideations, and no psychotic symptoms. In January 2004 the veteran received VA outpatient treatment where he complained of periods of depression, without suicidal ideation, and said that this rendered him unable to work. He was described at this time as having appropriate affect and appropriate smiles, while describing ongoing depressive symptoms. He had loose thoughts, wandering at times, and was sometimes hard to redirect. His depression was characterized as ongoing, with some suggestion of thought disorder. As discussed earlier, the veteran underwent a private intake evaluation from February 2004 notes that the veteran was found to have major depressive disorder and he was assigned a GAF score of 55. VA outpatient records from March and April 2004 describe the veteran's ongoing frustration with his work situation and problems related to caring for his father prior to his death. A mental status note indicates he gave more smiles than usual but was preoccupied with the past. A May 2004 letter from a VA psychiatrist indicates that the veteran struggled with severe depression that limits his ability to function. This letter states that the veteran had difficulty getting out of the house and was limited in his employability due to poor response to stimuli. In addition, the veteran's cognitive process was described as slowed and this also affected his employability. May 2004 VA outpatient notes indicate the veteran had some periods where depression persisted. He was attending a job program regularly and was taking medication. Upon mental status examination, the veteran was found to have a depressed mood without suicidal ideation. He was appropriately discussing future plans. The veteran was accorded a VA psychiatric examination in March 2005. At this time, the veteran's medical charts and claims file were reviewed and pertinent past medical and service history was discussed. The veteran complained of difficulty falling asleep, depression, and hopelessness. He reported feeling useless. He had "okay" energy. He had varied motivation, but expressed difficulty in getting out of bed. He had a passive wish to die, with no plan or intention. The veteran then noted significant ruminations, which were also observed in his medical charts. He then complained of poor concentration and short-term memory. The examiner then recognized that the veteran suffered from depression, but characterized it as being partially in remission. He noted that a GAF score of 70 was assigned in January 2005. Upon mental status examination, the veteran was cooperative and appeared his stated age. His eye contact was poor and his mood and affect were depressed. He had no hallucinations or delusions. His thought content was not suicidal or homicidal and his judgment and insight were described as fair. Based on this examination, the veteran was diagnosed with major depressive disorder and assigned a GAF score of 65. The examiner then summarized that the veteran had recent improvement in his symptoms and that his polysubstance abuse was in remission. The veteran was active with church and Alcoholics Anonymous meetings. A report from a private psychiatrist in September 2005 indicates the veteran was seen for his depression. He was described as having trouble falling asleep and staying asleep. The veteran reported that he last worked in August 2001. The veteran was able to drive, shop, and take care of his daily needs. He performed minor cooking and light chores. Upon mental status assessment, the veteran was found to have no deterioration of personal hygiene, habit, or dress. His level of depression was characterized as moderate to slightly severe. He had no confusion or psychomotor agitation. Thoughts were connected and the veteran was not disassociated in any way. He had no delusion or hallucinations. He was oriented, with normal memory. The veteran's insight was described as fair, with good judgment. He had moderate impairment in his ability concentrate. VA outpatient records from September 2005 note ongoing struggles with depressed mood. The veteran complained of having down periods for several days at a time. His mood was described as fair. Based on this examination, the veteran was assessed as having a grief reaction. November 2005 VA outpatient records note that the veteran was having more trouble leaving his house and having some symptoms of depression due to psychosocial stressors. He was described as having major depression in partial remission. A private psychiatric evaluation report dated October 2005 describes the veteran's current mental status. He was found to be appropriately dressed, calm, and oriented in all spheres. His mood was characterized as depressed. His reasoning, judgment and verbalization were within normal limits. He had no anxiety or psychotic symptoms. The veteran scored in the severe range on the Beck Depression Inventory, but other testing revealed moderate levels of psychiatric distress. Based on this, the veteran was diagnosed with major depression, severe, chronic/recurrent. Outpatient notes from January 2006 indicate the veteran was experiencing a bad period of symptoms. He reported only one good day out of many, and had a difficult time getting going in the morning. He was volunteering on a weekly basis and getting along with people. The veteran's mental status was described as depressed, but without thought disorder or suicidal ideation. He was assessed with a relapse of major depressive disorder that only partially responded to medications. Subsequent notes through May 2006 show improvement in these symptoms. VA outpatient records from June 2006 note that veteran went out to dinner with his brother. He basically enjoyed the experience, but felt uncomfortable at times. His mood was up and down, but he felt better when he was not watching the news. Recent increase in walking also improved his mood. Upon mental status evaluation, he was described as having a lighter affect. While he had continual struggles, he was also getting breaks from depression. He had ruminations relating to the television that were characterized as "almost psychotic." In summary, he was found to have major depression in partial remission with an improving trend. Notes from later that month indicate the veteran had fair to good spirits. He was planning a trip to visit his family and was tolerating his medications well. He was described as pleasant and smiling on occasion. He appropriately discussed concerns regarding his trip. In summary, throughout the appeal period this evidence does show that the veteran has periodically suffered from a flattened affect and there are some references to short term memory problems. However, there is no showing that the veteran engages in circumstantial, circumlocutory or stereotyped speech. He has had difficulty getting out of bed, but the evidence does not show panic attacks occurring more than once per week. In general, panic has not been a term used to describe the veteran's symptoms. His thought process is often goal directed and while his intelligence is described as average there is no indication that he cannot understand complex commands. His judgment is not described as impaired. While mood and motivation disturbances have been a hallmark of the veteran's clinical presentation, there are frequent references in outpatient records and mental status evaluations to improvement in mood or partial remission of symptomatology. For example, the May 2004 letter from a VA psychiatrist indicates the veteran would have difficulty functioning in most work settings, but the examination from March 3005, just 9 months later, notes an improved level of symptoms. As another example, a depressed period is described in outpatient records from January 2006, but subsequent records show improvement in symptoms, with partial remission and an improving trend described in June 2006. Numerous reports refer to his relationships with church, family members and Alcoholics Anonymous, to include dinner dates and long distance vacations. In addition, he has continued to participate and express interest in job placement programs. Taken as a whole, while some of the criteria for a 50 percent rating are demonstrated, the Board finds the type and degree of symptomatology contemplated for the 50 percent or higher levels is not shown at any time during the appeal period. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) [symptoms listed in rating schedule for mental disorders 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 disability rating]. The Board has also considered the GAF scores assigned the veteran by various medical professionals during the appeal period. These scores generally range between 50 and 65, with more recent scores at the higher end of this range. These GAF scores are indicative of a moderate to mild level of symptoms, which is reflected by the veteran's currently assigned rating. For these reasons, the Board finds that the level of disability manifested by the veteran's depression more nearly approximates the occasional decrease in work efficiency and intermittent ability to perform occupational tasks contemplated by a 30 percent evaluation than reduced reliability and productivity contemplated by a 50 percent evaluation. Accordingly, the Board concludes that a 30 percent disability rating is warranted for the veteran's depression throughout the appeal period. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Other Considerations The Board has considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (2007). The record reflects that the veteran has not required frequent hospitalizations for his service- connected psychiatric disability and that the manifestations of the disability are contemplated by the schedular criteria. In sum, there is no indication in the record that the average industrial impairment from the disability would be in excess of that contemplated by a 30 percent rating. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not warranted. ORDER Entitlement to an effective date earlier than September 22, 2000 for a grant of service connection for depression is denied. Entitlement to an initial rating in excess of 30 percent for depression is denied. Entitlement to an effective date earlier than August 11, 2003 for an increased rating for a right knee disability is denied. ______________________________________________ JONATHAN B. KRAMER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs