Citation Nr: 0916019 Decision Date: 04/29/09 Archive Date: 05/07/09 DOCKET NO. 07-17 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to a higher initial disability rating for a depressive disorder than zero percent disabling from July 27, 1993, 10 percent disabling from October 8, 1996, 30 percent disabling from March 5, 1999, and 70 percent disabling from August 18, 1999. 2. Entitlement to specially adapted housing. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from May 1970 to January 1972, and from November 1974 to May 1985. These matters come before the Board of Veterans' Appeals from a November 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran provided testimony at a March 2009 Board personal hearing conducted by the undersigned Acting Veterans Law Judge in Washington, D.C. A hearing transcript (transcript) is of record and has been associated with the Veteran's claims file. The Board observes that throughout the course of this appeal, encompassing several years, the issues now before the Board characterized on the title page of this decision as addressing the different ratings assigned for the Veteran's service-connected depressive disorder have been variously addressed by the appellant (and his accredited representative) as involving claims seeking earlier effective dates; however, the underlying claim stems from disagreement with the initial rating assignment following grant of service connection for depressive disorder by the RO in March 2001, at which time a 70 percent disability rating was assigned (from August 18, 1999). In the interim, the above-mentioned variously cited "tiers" of ratings have become implemented by the RO, effective from the assigned date of service connection, July 27, 1993. The net result is an initial rating appeal for a rating period from July 27, 1993 to the present. As the Veteran essentially perfected an appeal to the initial rating assigned following the grant of service connection for a depressive disorder, the Board has characterized this issue in accordance with the decision of the United States Court of Appeals for Veterans Claims (Court) in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (appeals from original awards are not to be construed as claims for increased ratings, but are initial rating appeals), which requires consideration of the evidence since the effective date of the grant of compensation. In March 2009, at the outset of the hearing, the Veteran's accredited representative essentially claimed entitlement to "an even earlier effective date [dating before July 27, 1993] than what's been granted" for the service-connected depressive disorder. The representative is shown to have previously proffered this claim as part of a January 2006 letter. To the extent that the representative may be contending that an earlier effective date than 1993 should be granted, such earlier effective date issue has yet to be adjudicated or developed for appellate review. The question of earlier effect date than July 27, 1993 is referred to the RO for initial development and adjudication, including the question of whether the Veteran and his representative are now attempting to raise a freestanding earlier effective date claim. Concerning the above-cited claim which is to be referred to the RO for initial consideration, the Board observes that the Court has held that, once there is a relevant final decision on an issue, there cannot be a "freestanding claim" for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (where a previous rating decision that assigned an effective date for a grant of service connection became final, and there is no allegation of CUE, the proper effective date for an award based on a claim to reopen cannot be earlier than the date that the reopen claim was received; otherwise, a "freestanding claim" for earlier effective date would vitiate the rule of finality). In other words, the Veteran is not entitled to again raise an earlier effective date claim that was established in a prior final decision. The only means by which to potentially obtain an earlier effective date following a final denial would be to challenge such denial based on clear and unmistakable error (CUE). Indeed, this was observed by the United States Court of Appeals for the Federal Circuit in Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ("[A]bsent a showing of [CUE, the appellant] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date"). FINDINGS OF FACT 1. For the period from July 27, 1993 to March 5, 1999, the service-connected depressive disorder was productive of symptoms that more nearly approximate definite impairment in the ability to establish or maintain effective or wholesome relationships with people; for the period from November 7, 1996, depressive disorder caused not more than occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. For the period from March 5, 1999, the service-connected depressive disorder was productive of not more than severe impairment in the ability to establish or maintain effective or favorable relationships with people, or severe impairment in the ability to obtain or retain employment; and did not manifest in virtual isolation in the community, totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, or demonstrable inability to obtain or retain employment, and was not productive of total social and occupational impairment. 3. The evidence for and against the claim is at least in relative equipoise on the question of whether the Veteran's service-connected syringomyelia has resulted in the loss, or loss of use, of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes or a wheelchair. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, for the initial rating period from July 27, 1993 to March 5, 1999, the criteria for a 30 percent rating for a depressive disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.132, Code 9405 (1996); 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. § 4.130, Code 9434 (2008). 2. Resolving reasonable doubt in the Veteran's favor, for the initial rating period from March 5, 1999, the criteria for a 70 percent rating for a depressive disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.132, Code 9405 (1996); 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. § 4.130, Code 9434 (2008). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to specially adapted housing are met. 38 U.S.C.A. § 2101(a) (West 2002 & Supp. 2008); 38 C.F.R. § 3.809 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States 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, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). In this case, because service connection, an initial rating, and effective dates have been assigned for service-connected depressive disorder, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The decision of the Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), spoke only to cases of entitlement to an increased rating. Because there is a distinction between initial rating claims and increased rating claims, Vazquez- Flores is not for application with respect to initial rating claims as notice requirements are met when the underlying claim for service connection is substantiated. Consequently, there is no need to discuss whether VA met the Vazquez-Flores standard. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. The claimant was provided the opportunity to present pertinent evidence. In sum, there is no evidence of any VA error in assisting the Veteran that reasonably affects the fairness of this adjudication. The claimant was afforded a meaningful opportunity to participate in the adjudication of the claim. There is no suggestion that any VA defect in assisting the Veteran reasonably affects the fairness of this adjudication. Indeed, the Veteran has not suggested that such an error, prejudicial or otherwise, exists. As to the matter concerning entitlement to specially adaptive housing, in this case, the Board is granting the benefit sought on appeal; hence, even assuming, without deciding, that any error was committed with respect to implementation of the VCAA's duty to notify and assist provisions, such error was harmless in its application to adjudication of this matter, and need not be further discussed. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). Factual Background Service treatment records reflect that in service in September 1979 the Veteran was hospitalized or overdose on Valium, Elavil, and alcohol following an argument with his wife. The Veteran reported that he felt embarrassed and depressed. Examination of the Veteran noted he shows no signs of severe depression, and did not appear suicidal or psychotic, and the Veteran specifically reported that he did not want to die. The diagnostic impression was situational anxiety leading to suicidal gesture. In service in March 1984 the Veteran indicated on a medical history form that he had trouble sleeping, and denied other symptoms, including anxiety and depression. A June 1992 Functional Restoration Center discharge summary reflects the Veteran's report of depression and anxiety. The report of a VA orthopedic examination, conducted on July 27, 1993, shows that diagnoses of cervical disc disease and secondary anxiety were provided. As part of an informal brief submitted by the Veteran's representative in April 1995, the issue of entitlement to service connection for anxiety, secondary to the Veteran's service-connected cervical spine disease, was raised. Review of the Veteran's voluminous claims file does not reveal psychiatric-based treatment until March 5, 1999, although the record previously noted symptoms of depression and anxiety in 1992. Review of a VA progress note dated on March 5, 1999 shows that the Veteran was seen for evaluation of his cervical spine. He complained of previous episodes of syncope a week earlier, but was reluctant to be worked up for the complaints. The Veteran mentioned that he did not care if he lived or died, denied active suicidal ideation or intent, mentioned that he cared about nothing, taking no joy in usual activities, and added that he had no problems sleeping. The supplied diagnoses included spinal stenosis and depression. A private hospitalization report dated in October and November 1999 reflects a psychiatric admission for accidental overdose, with complaints of decreased energy, sleep impairment, mood problems, and diagnosis of depression questionably secondary to chronic pain. VA treatment records dated in 1999 show the Veteran's report of depression, treated with medication, and anxiety, including panic attack, and difficulties adjusting to the fact that he could no longer work, and reduced social interaction. Review of a VA Form 26-4555 (Veteran's Application in Acquiring Specially Adapted Housing or Special Home Adaptation Grant), received by VA in April 2001 shows that the Veteran claimed to be unable to walk without the use of adaptive equipment due to his service-connection cervical disc disease and syringomyelia. As part of a March 2002 letter supplied by the Veteran's then accredited representative (Disabled American Veterans), the contention is raised that the Veteran was entitled to specially adapted housing due to the Veteran's syringomyelia, which destroys the center of the spinal cord. A VA progress note, dated in December 2002, shows that a kinesiotherapist evaluated the Veteran's gait. A history of syringomyelia, status post cervical spinal fusion, early stenosis, status post low back surgery, and degenerative joint disease of the knees was reported. The Veteran arrived for the evaluation ambulating with a straight cane. He did not have any noticeable balance deficits. He did complain of having several falls. The Veteran was instructed in the proper use of a 4-wheel walker. He was able to use the walker safely and properly. He was issued the 4-wheel walker. The device was issued to aid the Veteran with gait stability as well as to reduce his fall risk. A VA progress note addendum, dated in March 2003, shows that a VA physician had recommended adaptable housing for the Veteran. The Veteran was noted to need a cane to ambulate, and, at times, a rolling walker. The Veteran was noted to have periods of gait instability and subsequent falls due to his service-connected disabilities of the spine. The entry also reflects the Veteran's report of feeling depressed or sad much of the day. As shown as part of a July 2003 rating decision, in pertinent part, the service-connected depressive disorder was evaluated as being zero percent (noncompensable) disabling from July 27, 1993, and 10 percent disabling from October 8, 1996. The rating decision also shows that a total disability rating based on individual unemployability due to service-connected disabilities has been in effect since May 1, 1999. Review of a May 2006 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, shows that the examiner commented that the Veteran was in a wheelchair with a cane. The Veteran was noted to exhibit weakness of the lower extremities with decreased peripheral sensation, with loss of joint sense and coordination. He was unable to ambulate more than 50 to 100 feet without the assistance of another person; he was noted to need a walker/wheelchair. It was also mentioned that the Veteran required assistance with locomotion. The supplied diagnoses were syringomyelia, degenerative disease of the cervical and lumbar spine, and spinal stenosis. A July 2006 VA consultation report shows that the Veteran could ambulate 50 feet, and that he ambulated from his car to the clinic. The quality of his walking was noted to be slow, with a cane or walker. The report of a VA aid and attendance or housebound examination, dated in December 2006, shows that the Veteran reported last working in 1999. His vision was not worse than 5/200. Examination revealed that the Veteran's gait was slow using a cane. His upper extremities showed full range of motion with his arms and shoulders, with slightly decreased grip strength. Full range of motion of his legs was also observed. The Veteran ambulated throughout the clinic with a cane, seemingly, according to the examiner, without great difficulty. The Veteran stated though that he could only stand for about 10 minutes, and could walk a maximum of about 100 feet. He was using a cane the day of the examination. The diagnoses included degenerative joint disease of the cervical and lumbar spine and syringomyelia of the thoracic spine (with questionable symptomatology). The report of a December 2006 VA orthopedic examination shows that the Veteran claimed to be only able to walk about 100 feet and to ambulate for about 10 minutes, whichever occurred first. He was using a cane in the course of the examination. The supplied diagnoses included degenerative disc disease/degeneration of the cervical spine, and thoracic spine syringomyelia, with residuals. A December 2006 VA mental disorders examination report reflects that the Veteran did not have total occupational and social impairment due to mental disorder signs and symptoms. Reported symptoms included social isolation, poor memory and concentration, without major impairments, and anxiety when leaving home. The VA examiner assigned a GAF of 47. In the course of his March 2009 personal hearing conducted by the undersigned, the Veteran testified that he was unable to ambulate without assistive devices. See pages four and five of transcript. He added when he does not use a cane he falls. See page five of transcript. He added that he could stand for just a matter of minutes, and that he could not walk a hundred yards, even with a cane. See page six of transcript. He added he used a walker at home. Id. The Veteran attributed his problems with ambulation to be mainly due to his service-connected syringomyelia, which he described as being neurological in nature. See page eight of transcript. He added that he suffered from anxiety on a daily basis from 1993 to 1999, and thought about suicide every day. See page 15 of transcript. At the March 2009 personal hearing, the Veteran also testified regarding psychiatric symptoms that he had experienced some symptoms of depression since service, including a suicide attempt in service; that after service he experienced daily severe anxiety, daily suicidal thoughts; and after service had occasionally been prescribed medication; and worked part-time for about 20 hours per week unloading trucks at UPS from 1989 to 1999, where he did not have to deal much in interaction with other people. Psychiatric Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath, 1 Vet. App. at 594. Where an increase in the level of a service-connected disability is at issue, however, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nonetheless, 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 this decision, where appropriate, is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where entitlement to compensation already has been established and 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). Pertinent to the instant appeal for increased tiered ratings for a depressive disorder, the Board notes that VA promulgated new regulations amending the rating criteria for mental disorders, effective November 7, 1996, in order to ensure that current medical terminology and unambiguous criteria are used. See 61 Fed. Reg. 52,695 (1996) (codified at 38 C.F.R. Part 4). The changes included redesignation of § 4.132 as § 4.130 and the revision of the newly redesignated § 4.130. Also effective November 7, 1996, the general rating formula for mental disorders was replaced with different criteria. And, in some instances the nomenclature employed in the diagnosis of mental disorders was changed to conform to the Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV), replacing DSM-III-R. The Board has analyzed the Veteran's claim under both sets of criteria. Under the former version of Diagnostic Code 9405 (major depression without melancholia), which was in effect prior to November 7, 1996, a zero percent (noncompensable) evaluation was for assignment when there were neurotic symptoms which may somewhat adversely affect relationships with others but which did not cause impairment of working ability. A 10 percent evaluation for major depression with melancholia was warranted in cases of emotional tension or other evidence of anxiety productive of mild social and industrial impairment, albeit less than that for a 30 percent evaluation. A 30 percent evaluation requires definite impairment in the ability to establish or maintain effective or wholesome relationships with people, and psychoneurotic symptoms that result in such reduction in flexibility, efficiency, and reliability levels as to produce definite social impairment. A 50 percent evaluation requires considerable impairment in the ability to establish or maintain effective or favorable relationships with people, and psychoneurotic symptoms that result in such reduction in reliability, flexibility, and efficiency levels as to produce considerable industrial impairment. A 70 percent evaluation requires severe impairment in the ability to establish and maintain effective or favorable relationships with people; the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent evaluation requires virtual isolation in the community, totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, or demonstrable inability to obtain or retain employment. 38 C.F.R. § 4.132, Code 9405 (1996). A 100 percent evaluation may be assigned under the above rating criteria as long as the veteran meets one of three listed criteria: total isolation; gross repudiation of reality; or unemployability. See 38 C.F.R. § 4.132, Code 9405 (1996); Johnson v. Brown, 7 Vet. App. 95, 96 (1994); see also 38 C.F.R. § 4.21 (1996). In Hood v. Brown, the Court stated that the term "definite" in 38 C.F.R. § 4.132 was qualitative in nature, whereas the other terms, e.g., "considerable" and "severe," were quantitative. Hood v. Brown, 4 Vet. App. 301, 303 (1993). Thereafter, VA's Office of General Counsel issued a precedent opinion concluding that "definite" was to be construed as "distinct, unambiguous, and moderately large in degree." It represented a degree of social and industrial inadaptability that was "more than moderate but less than rather large." The term considerable, the criterion for a 50 percent evaluation, was to be construed as "rather large in extent or degree." VAOPGCPREC 9-93. The Board is bound by this interpretation of the terms "definite" and "considerable." 38 U.S.C.A. § 7104(c). According to the current regulations, a mental disorder shall be evaluated "based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination." 38 C.F.R. § 4.126(a) (2008). The 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 § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. Under the current regulations, in effect from November 7, 1996, a 10 percent rating is warranted for a depressive disorder where the disorder is manifested by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by continuous medication. A 30 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with an 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; mild memory loss (such as forgetting names, directions, and recent events). A 50 percent evaluation is assigned if there is 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 in short-term 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; or difficulty in establishing and maintaining effective work relationships. A 70 percent evaluation is assigned if there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. A 100 percent evaluation is assigned if there is total social and occupational impairment due to symptoms including 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; or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Code 9434 (2008). Initial Rating for Depressive Disorder After a review of the evidence of record, the Board finds that, for the period from July 27, 1993 to March 5, 1999, the service-connected depressive disorder more nearly approximated definite impairment in the ability to establish or maintain effective or wholesome relationships with people, which is consistent with a 30 percent disability rating under the old rating criteria (Diagnostic Code 9405). The evidence includes in-service findings of the Veteran's report of depression in conjunction with a September 1979 situational anxiety leading to suicidal gesture with subsequent denial of symptoms of anxiety and depression at service separation. The evidence pertaining to this early rating period from July 27, 1993 also includes the Veteran's March2009 personal hearing testimony that he experienced symptoms of depression after service and during this period that never went away. The evidence for this period also includes the June 1992 Functional Restoration Center discharge summary reflects the Veteran's report of depression and anxiety, and the report of a July 1993 VA orthopedic examination report that shows anxiety secondary to cervical disc disease. The evidence also includes the Veteran's testimony that during this time he worked only part-time for about 20 hours per week unloading trucks at UPS from 1989 to 1999, where he did not have to deal much in interaction with other people, and that he tended to isolate from people. For these reasons, the Board finds that, for the initial rating period from July 27, 1993 to March 5, 1999, the criteria for a 30 percent rating for a depressive disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9405 (1996). Notwithstanding the Veteran's personal hearing testimony that the symptoms from service separation, including the rating period from 1993, included severe anxiety and depression, the evidence does not show that the post-service symptoms were severe or severely impairing for this period, or otherwise more nearly approximated the criteria for a higher rating than 30 percent. For example, in service the Veteran reported depression, and the 1979 clinical findings included that the depression was not severe. At service separation, the Veteran himself reported no history or complaints of depression or anxiety. Considering the new rating criteria, for the period from November 7, 1996, the Board finds that the depressive disorder caused not more than occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The evidence shows that the Veteran's symptoms did not more nearly approximate occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, as required for a 50 percent disability rating under the new criteria. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that, for the initial rating period from July 27, 1993 to March 5, 1999, the criteria for an initial disability rating in excess of 30 percent rating for a depressive disorder have not been met. 38 C.F.R. § 4.132, Diagnostic Code 9405 (1996); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2008). Resolving reasonable doubt in the Veteran's favor, the Board also finds that, for the period from March 5, 1999, the service-connected depressive disorder symptomatology more nearly approximated severe impairment in the ability to establish or maintain effective or favorable relationships with people, or severe impairment in the ability to obtain or retain employment, as contemplated by a 70 percent disability rating under the old rating criteria (Diagnostic Code 9405). The evidence includes a March 5, 1999 shows mentions of suicidal ideation and depression, including diagnosis of depression. Subsequent evidence reflects the Veteran's report of feeling depressed or sad much of the day. For these reasons, the Board finds that, for the initial rating period from March 5, 1999, the criteria for a 70 percent rating for a depressive disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9405 (1996). The Board finds that, for the period from March 5, 1999, the service-connected depressive disorder symptomatology did not manifest in virtual isolation in the community, totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, or demonstrable inability to obtain or retain employment, as required for a 100 percent disability rating under the old criteria; and has not been productive of total social and occupational impairment, as required for a 100 percent rating under the new rating criteria. 38 C.F.R. § 4.132, Diagnostic Code 9405 (1996); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2008). The Board has considered the provisions of 38 C.F.R. § 3.321(b)(1), but finds that no evidence that the Veteran's service-connected depressive disorder has caused marked interference with employment beyond that contemplated by the schedule for rating disabilities, necessitated frequent periods of hospitalization, or otherwise renders impractical the application of the regular schedular standards utilized to evaluate the severity of this disability. The Board notes that a total disability rating based on individual unemployability due to service-connected disabilities has been in effect since May 1, 1999. Such finding of unemployability was based on all the Veteran's service- connected disabilities. Such finding of unemployability also addresses these extraschedular concerns. In the absence of such factors regarding the service-connected depressive disorder, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service- connected disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Specially Adapted Housing A certificate of eligibility for assistance in acquiring specially adapted housing may be issued to a veteran, provided he or she has a disability incurred in or aggravated during service and is entitled to compensation for permanent and total disability due to: 1) the loss, or loss of use, of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes or a wheelchair; or 2) blindness in both eyes, having only light perception, plus the loss or loss of use of one lower extremity; or 3) the loss, or loss of use, of one lower extremity together with the residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes or a wheelchair; or 4) the loss, or loss of use, of one lower extremity together with the loss, or loss of use, one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes or a wheelchair. 38 U.S.C.A. § 2101(a) (West 2002 & Supp. 2008); 38 C.F.R. § 3.809 (2008). The term "preclude locomotion" is defined as the necessity for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion, although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(d). In VAOPGCPREC 60-90, VA's Office of General Counsel determined that the term "loss of use" can be interpreted as either functional or organic pathology in determining entitlement to specially adapted housing and other benefits. VAOPGCPREC 94-90 held that a veteran's receipt of a total disability rating based on individual unemployability due to service-connected disability (TDIU) satisfies the prerequisite of a permanent and total rating for purposes of receipt of Chapter 11 compensation benefits, including as to eligibility for financial assistance in the acquisition of specially adapted housing. After a review of the evidence, the Board finds that the evidence for and against the claim is at least in relative equipoise on the question of whether the Veteran's service- connected syringomyelia has resulted in the loss, or loss of use, of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes or a wheelchair. The Board observes that syringomyelia is defined as the presence in the spinal cord of longitudinal cavities lined by dense, gliogenous tissue, which are not caused by vascular insufficiency. It is marked clinically by pain and paresthesia, and spastic paralysis in the lower extremities. See STEDMAN'S MEDICAL DICTIONARY 1775 (27th ed. 2000). After considering all the evidence of record, including the March 2009 testimony, the Board finds that the evidence favors the claim. The above findings establish to a reasonable likelihood that the criteria for awarding specially adapted housing benefits as set forth under 38 C.F.R. § 3.809 have been met, due to permanent and total disability from loss of use of both extremities to the extent effectively precluding locomotion without the aid of braces, crutches, canes or a wheelchair. The above-discussed cited records, and, particularly, the March 2003 VA progress note addendum, which shows that a VA physician recommended adaptable housing for the Veteran, demonstrate a degree of functional impairment at or near the necessary level. The Veteran, also, throughout his appeal, has consistently been shown to require a cane, and, at times, a rolling walker, to ambulate. When resolving any reasonable doubt in the Veteran's favor as to the impact upon daily activities as due to his service-connected disabilities, these may be considered to meet the criteria for the awarding the benefit sought. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Resolving reasonable doubt in the Veteran's favor, entitlement to specially adapted house is warranted. ORDER For the initial rating period from July 27, 1993 to March 5, 1999, a 30 percent rating for a depressive disorder is granted. For the initial rating period from March 5, 1999, the criteria for a 70 percent rating for a depressive disorder is granted. Entitlement to specially adapted housing is granted. ______________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs