Citation Nr: 1108284 Decision Date: 03/02/11 Archive Date: 03/17/11 DOCKET NO. 09-10 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 50 percent for a depressive disorder, to exclude period of November 8, 2007 to December 1, 2007. 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1971 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In a January 2006 rating decision, the RO, in pertinent part, denied a rating in excess of 50 percent for a depressive disorder. A January 2008 rating action temporarily increased the rating to 100 percent from November 8 2007 to November 30, 2007 because of hospitalization over 21 days. However, the 50 percent rating was restored on December 1, 2007, and that rating remains on appeal. Also on appeal is an October 2008 rating decision, in which the RO, in pertinent part, denied entitlement to TDIU. In October 2010, the Veteran testified before the undersigned Veterans Law Judge in a Travel Board hearing at the RO. A transcript of that hearing is of record. The issues of entitlement to service connection for back aches; knee problems; testicular problems, including a hydrocele; and erectile dysfunction, including each as secondary to service-connected depression have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 2. With exception to the Veteran's period of hospitalization from November 8, 2007 to December 1, 2007, a major depressive disorder was manifested by 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. 3. The evidence of record demonstrates that the Veteran is precluded from maintaining substantially gainful employment as a result of his service-connected depressive disorder. CONCLUSIONS OF LAW 1. Excluding the period of November 8, 2007 to December 1, 2007, the criteria for a rating in excess of 70 percent for PTSD have been met. See 38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). 2. The criteria for the award of TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 3.340, 4.16 (2010) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. It also includes notification provisions. This information was provided to the Veteran by correspondence in September 2005, July 2008, and March 2010. The letters informed the Veteran of VA's responsibilities in obtaining information to assist in completing his claims and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). His service, private, VA, and Social Security disability treatment records have been obtained and associated with the claims file. The claims were last readjudicated in an August 2010 supplemental statement of the case (SSOC). Further, the United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. This information was provided to the Veteran in correspondence dated in July 2008. VA has obtained the identified and available evidence needed to substantiate the claim adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the Veteran's psychiatric disorder. Additionally, the Veteran was afforded multiple VA examinations that were fully adequate for the purposes of determining the symptoms and severity of his PTSD. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds the available medical evidence is sufficient for an adequate determination, and duty to assist and notification provisions of the VCAA have been fulfilled. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Laws and Regulations-Increased Rating Disability evaluations are determined by the application of the 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. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). Where entitlement to compensation has already been established, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings from the time the claim is filed until VA makes a final decision. See generally Hart v. Mansfield, 21 Vet. App. 505 (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. See 38 C.F.R. § 4.7 (2010). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. See Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). It is the defined and consistently applied policy of the VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 4.3 (2010). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). General Rating Formula for Mental Disorders: Rating 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 100 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 70 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; difficulty in establishing and maintaining effective work and social relationships 50 38 C.F.R. § 4.130, Diagnostic Code 9434 (2010). The Court has held that GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.) (DSM-IV), p. 32). The nomenclature employed in the schedule is based upon the DSM-IV, which includes the GAF scale. See 38 C.F.R. § 4.130. Global Assessment of Functioning (GAF) Scale Consider psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Do not include impairment in functioning due to physical (or environmental) limitations. 70 ? ? 61 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. 60 ? ? 51 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). 50 ? ? 41 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). 40 ? ? 31 Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). 30 ? ? 21 Behavior is considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriate, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). Total disability will be considered to exist when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. § 3.340 (2009). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (2010). It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis, when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a) (2010). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19 (2009). Factors to be considered are the veteran's education, employment history and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). A high disability rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. However, the question in a total rating case based upon individual unemployability due to service-connected disabilities is whether the Veteran is capable of performing the physical and mental acts required by employment and not whether the Veteran is, in fact, employed. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Factual Background and Analysis-Increased Rating In September 2004, the Social Security Administration found the Veteran to be disabled due to an affective/mood disorder, with a secondary diagnosis of substance addiction disorder-drugs, effective in January 1991. In August 2005, the Veteran filed his current claim for a rating in excess of 50 percent for a major depressive disorder. In an August 2005 VA psychiatry consultation, the Veteran indicated that he was in a Salvation Army therapy program. He reported cocaine dependence with 30 days of sobriety. He drank one quart or three to four ounces of liquor every three days. He admitted marijuana use and stated that if he could get it, he would use it daily. He reported chronic sleep problems for 34 years. He could not sleep more than four hours per night without the use of alcohol or marijuana. The Veteran reported increased irritability and noted his concentration varied depending on his stress level. He denied suicidal or homicidal ideation, psychosis, feelings of helplessness or hopelessness. Mental status examination revealed appropriate dress and grooming. His behavior was "somewhat haughty and arrogant," but the examining psychiatrist noted that the Veteran apologized for his behavior later. He had good eye contact and his speech was normal. His mood was irritable and his thought processes was mostly linear, logical, and goal directed. He denied hallucinations and no delusional constructs were apparent. His judgment was intact and he was alert and oriented in all spheres. Impressions included cocaine dependence in early partial remission, episodic alcohol abuse, cannabis (marijuana) abuse versus dependence, and antisocial personality traits. A GAF score of 55 was assigned. In an October 2005 private treatment note signed by T. J. L., M.D., the Veteran appeared somewhat paranoid and depressed, but he denied significant depression or suicidality. There was no evidence of a thought disorder, but the physician noted depression and dysthymia. The Veteran was homeless and stayed at the Salvation Army, but he reported he was moving into a rooming house at the end of the week. He did not appear to be intoxicated or using drugs at the time. The diagnosis was schizoaffective disorder based on paranoia, reality testing, and a mood disorder. During an October 2005 VA mental disorders examination, the Veteran reported that he had little contact with his family, was never married, and had an adult daughter with whom he had no contact. He lived in a rented room and recently left the Salvation Army shelter. He was able to care for himself, and attend to activities of daily living. He owned a car and was attempting to get his license reinstated (he lost it after not paying a ticket). His income came from VA disability and SSA disability benefits. The Veteran's work history was erratic and he estimated that he had held over 40 different jobs. He had not worked a single job for longer than one year and indicated that he left his jobs when he felt disrespected or talked down to. Recently, he had work through day labor pools one or two days per week. He admitted to current alcohol use of a six pack per week, but he no longer drank "to get drunk." He admitted use of cocaine two months prior and acknowledged continuous use of marijuana. The Veteran was involved in treatment with a community psychiatrist and thought about resuming treatment at the VA Medical Center (VAMC). He reported continued periods of depression which lasted for three to four days. Mental status examination revealed orientation to time, place, person, and event. He dress was casual and neat, and he was well groomed. His thought processes were logical, and speech was coherent and spontaneous. His mood was depressed and somewhat irritable, his affect was appropriate, and his mood was congruent. He denied current suicidal or homicidal ideation, plan, or intent, but admitted to such thoughts when depressed. No evidence of a thought disorder was noted. No inappropriate behaviors were noted. Recent and remote memory was generally intact. Insight was limited and judgment appeared to be fair. The diagnosis was major depressive disorder and he was assigned a GAF score of 55. The examiner remarked that the Veteran continued to experience symptoms of depression, but he continued to use alcohol, cocaine, and THC (marijuana). The substance abuse patterns likely continued to have a negative impact on his overall functioning; however, the examiner felt it was impossible to determine the degree to which the conditions contributed to overall functioning without resort to mere speculation. In a May 2006 statement, P. B. wrote she knew the Veteran for 35 years and was friends with him before and after service. She noted behavioral changes and felt that after discharge, he was moody and stayed to himself for most of the day. The July 2007 VA ER discharge diagnosis was schizophrenia. He was to follow-up with the VA psychiatry (behavioral health) clinic. During a July 2007 VA behavioral health ER consult, the Veteran presented with fears, but not desire, that he might hurt others. He stated he was paranoid at times and felt others were not giving him the respect he deserved. He said he got "bent out of shape" easily, and was generally irritated. He indicated marijuana use that day and cocaine use five or six days earlier. He reported depression, four hours of sleep "on a good night", a fluctuating appetite, and poor concentration. He denied suicidal ideation and hallucinations, and although he was clearly irritated by others, there were no specific homicidal ideations. The Veteran appeared well, was appropriately dressed, and cooperative. Mental status examination revealed no abnormal motor activity. Mood was "not bad," and affect was euthymic. Speech was normal, thought process was linear and logical, and he was oriented to person, place, and time. Insight and judgment were limited and good. The diagnosis was adjustment disorder with depressed mood and a GAF score of 45 was assigned. A July 2007 VA mental health note indicated the Veteran reported to the ER with complaints of poor sleep, occasional nightmares, irritability, anger, and profound thoughts of homicide. He described general anger and homicidal thoughts, which were not specific or directed at any one individual. He reported feeling depressed for three months, and denied suicidal ideation. The Veteran reported marijuana and cocaine use within the past week. He refused outpatient mental health treatment at the VAMC because he felt it did not benefit him. A depression screen was positive. In a July 2007 VA mental health outpatient note, the Veteran reported feelings of depression and intense anger. He denied suicidal or homicidal ideation against a specific person. His anger was a general feeling against the racism that he felt he encountered on a daily basis. During an August 2007 VA primary care visit, the Veteran was clean, polite, friendly, and cooperative. There was no evidence of any current psychotic symptoms at all. The examining physician stated that the prior diagnosis of schizoaffective disorder did not seem supported by a prior history of very mild paranoia which may have come in the context of drug use. The Veteran described anxiety and a history of depression, but denied current depression. He had not been on medication in many months. Current symptoms included anxiety, difficulty concentrating, poor energy, and periods of anhedonia. He was not a danger to himself or others, and denied any homicidality or suicidality. In an August 2007 VA primary care note signed by S. M. S., M.D., the Veteran had a flat affect and stated that he was not doing "all that great." Dr. S. had a difficult time following the Veteran's story. The doctor noted a slight feeling that the Veteran was expressing some thinking that may be persecutory (in a delusional way). The Veteran displayed an entitled manner and seemed angry about his treatment. He denied suicidal and homicidal ideation, and hallucinations. During a follow-on August 2007 VA primary care note, Dr. S. noted the Veteran was notably more upbeat, less irritated, and less entitled-seeming during his appointment. He remained non-suicidal, non-homicidal, and denied hallucinations. His mood and affect were upbeat. In a November 2007 VA admission report, the Veteran presented to the Substance Abuse and Treatment Unit (SATU) "to try and get clean and sober." He had a cocaine relapse one year prior, an alcohol relapse four years prior, and a marijuana relapse six years prior. He denied suicidal or homicidal ideation and psychosis. In a November 2007 VA behavioral assessment, the Veteran reported that he was homeless. He noted he was 50 percent service connected for a mental disorder. He stated that the lawyer who did his paperwork sent him the criteria for the ratings, and the Veteran realized that he had suffered with depression since he left service and felt he should have been compensated at a level higher than 50 percent. He related his substance abuse to anger and pain. The Veteran reported a history of treatment for bipolar disorder. He mentioned he was admitted to the VAMC on three occasions for suicidal ideations and "thoughts of doing monstrous things." He hypothesized that judges and government officials were involved in the Ku Klux Klan. He denied any desire to harm others and denied current suicidal ideation. He acknowledged depressed mood, reduced pleasure or interest in all or almost all activities most of the day, insomnia, psychomotor agitation or retardation, fatigue or loss of energy, feelings of worthlessness or excessive or inappropriate guilt, and diminished ability to think or concentrate. The Veteran was well-groomed and his dress was disheveled. He was angry throughout the interview and frequently mentioned times at which he was treated unjustly. Mental status examination revealed good cooperation, full orientation in all spheres, and normal speech. The Veteran reported visual hallucinations and stated he had seen shadows. He denied auditory hallucinations, but acknowledged occasional paranoid delusions. The Veteran had difficulty spelling "world" forwards and backwards and was unable to complete the "serial sevens" task. His memory was assessed as grossly unimpaired, and his insight and judgment were fair. Axis I diagnoses were cannabis dependence, cocaine abuse, and bipolar II disorder, with psychotic features. An axis II diagnosis was deferred and an admission GAF score of 40 was assigned. The examining psychologist noted the highest GAF score assigned in the past 12 months was 51. In a December 2007 VA discharge note, the Veteran was discharged from 21 days on the SATU. He remained abstinent from abused substances during the stay. He denied suicidal and homicidal ideations during the admission, and was not considered a danger to himself or others at the time of discharge. His discharge GAF was 65. In a January 2008 VA mental health outpatient note, the Veteran presented for an initial visit since moving from another state. He continually felt depressed and admitted to self-medicating his depression with marijuana. He reported suicidal ideation and stated that his plan would be to challenge the police and force them into an altercation. He expressed some intent to carry out his plan, but denied any attempts. He also reported homicidal ideation. His plan was to pick up a bat and "bash someone's head in." He expressed some intent to carry out his plan and reported he got into a fight while living in Florida. The Veteran reported difficulty falling and stayed asleep. He reported three hours of sleep per night. Mental status examination revealed a depressed mood; restricted and somewhat blunted affect; no visual or auditory hallucinations; and orientation to month and place, but not to day, date, or year. Diagnoses were depression, mania, bipolarity, and past cocaine addiction. In a January 2008 VA mental health initial evaluation note signed by a staff psychiatrist, the Veteran tied his depression to ongoing pain he experienced as a result of a failed penile implant and impotence. He reported daily marijuana use and denied cocaine use, but a toxicology report from the same date was positive for cocaine. On mental status examination, the Veteran was well groomed and appropriately dressed. He was cooperative and exhibited no psychomotor abnormalities. His speech was normal, mood was depressed, and affect was blunted versus apathetic. Thoughts were linear and logical, and insight and judgment were impaired. He endorsed chronic homicidal ideation which had not changed over the years. He denied active visual hallucinations. The examining psychiatrist's impression was dysthymia in the setting of chronic pain. During an August 2008 VA mental disorders examination, the Veteran complained that his depressive symptoms had worsened since his last evaluation in October 2005. He complained of increased problems with irritability, insomnia, and brief episodes of suicidal thoughts during this period. In August 2007, the Veteran moved to the Philadelphia area from Florida. He reported problems with housing since his move and planned to move into a shelter. He lived with a friend at the time of the examination. He reported a very low level of interest in, or participation in, social activities. He had a long history of difficulty forming relationships. The Veteran reported multiple and various types of employment since his discharge from service. He worked in day labor when he lived in Florida, but he had not been able to find employment since he moved to the Philadelphia area over the past year. He stated that his psychiatric symptoms had always interfered with his work and he had problems trusting people. He had difficulty focusing and maintaining his attention on the job, and, at times, forgot routines he had previously learned. In the past, he had made job-related mistakes, especially when he was depressed or stressed. He stated, "I have a lot of difficulty handling stress at work. When I start getting stressed out, I quit." The Veteran had been fired only three times; all other times he had quit employment. The Veteran indicated on most days, and for most of the day, he had low mood, feelings of sadness, a high level of irritability, anxiety, and insomnia, with difficulty falling and staying asleep. He had an almost constant feeling of low energy, decreased motivation, and unexpected, brief thoughts of suicide. The Veteran appeared his stated age, was neatly dressed, well groomed, cooperative, and very informative. He presented himself in a professional manner. Speech was clear with normal rate and normal content. He denied episodes of mania or hypomania. Psychomotor functions were full and normal. He had no difficulty with activities of daily living. He was very well oriented to time, person, and place, and his memory was excellent for recall of remote and recent events. His intellectual functions were in the high normal range, and his cognitive functions were normal. His mood was low and his affect range was between sad and flat. He maintained a high level of anxiety throughout the interview, and denied inappropriate behavior. He had no current suicidal ideation, but since his last evaluation in 2005, he had unexpected brief thoughts of suicide that were not associated with suicide planning. He had no homicidal thoughts. He complained of chronic insomnia with difficulty initiating and maintaining sleep. He had a poor appetite, low energy, and decreased motivation. His insight and judgment were very good. His overall intellectual functioning was in the average range and the doctor felt that the patient did better with visual-spatial abilities compared to tests related to verbal and language-related abilities. The testing did not reveal any underlying psychotic processes; however, it did clearly indicate the presence of depression and anger, along with a lack of self-confidence and self-esteem with a tendency to project his feelings onto others. The diagnoses were major depressive disorder, moderately severe in intensity; and cocaine dependence, in remission. The psychiatrist concluded that the Veteran had severe occupational impairment with the inability to maintain full-time employment due to his symptoms. The physician opined that the Veteran's major depressive disorder was clinically worse during the evaluation compared to his previous October 2005 evaluation. The intensity of several individual depressive symptoms had increased and the Veteran had severe occupational impairments due to his depressive symptoms. The GAF score was 46. In a December 2008 VA primary care note, the Veteran related that his longest serious relationship was about a year and a half in the 1990's. He had a prostate cancer operation in 1997 and had not been with a woman since then. He had a penile implant in 1999, which had been malfunctioning since that time. The Veteran stated that he could not let go emotionally and that he had trust issues with women. He presented as a thin, unsmiling man with a flat affect. He was quietly angry, and his speech was soft and frequently sarcastic. He saw himself as a victim and felt hopeless. His thoughts were linear and coherent. He denied hallucinations, and suicidal or homicidal ideations. Insight and judgment seemed at baseline, and cognition was grossly intact. In a May 2009 VA addendum, the examining physician, Dr. S., remarked that the Veteran had presented as "angry and entitled" since their first contact, "with almost every discussion focusing almost exclusively on perceived wrongs by the system and himself as a victim." On the last meeting, the Veteran presented with a list of mental health complaints that could have merited further exploration, but the Veteran indicated that he was applying for benefits and the doctor's notes did not push him toward the results he wanted. (The physician stated the notes accurately reflected their discussions.) The doctor felt the degree of the Veteran's anger and irritability seemed PTSD-like. In a June 2009 VA behavioral health ER consultation, the Veteran presented with "suicidal and homicidal ideations on a daily basis." He stated that he was ejected from the shelter, so he came to the ER. He reported depression, and that he slept only four or five hours for the last 30 years. He said he ate to survive, and reported daily marijuana use, if he could get it. He denied any other alcohol or drug use. He denied hallucinations, anxiety, and pain. The Veteran appeared somewhat paranoid. Mental status examination revealed a well-appearing man who appeared his stated age. He was dressed appropriately and was generally cooperative. He exhibited no abnormal motor activity. His mood was depressed and affect was constricted. His thought process was linear and logical, and his thought content was devoid of hallucinations, but positive for suicidal or homicidal ideation. He was alert and oriented to time, place, and person. His insight and judgment were poor. The diagnosis was recurrent major depressive disorder and a GAF score of 25 was assigned. In a follow-on June 2009 VA addendum, the examining physician indicated that the Veteran completely recanted his story, and stated that he had no desire to hurt himself or others. The doctor spoke with the Veteran and determined that the Veteran's initial statements, which were quite vague, may have been malingering with the goal of increasing his chances of getting 100 percent service connected. In a November 2009 VA addendum, the Veteran's former provider, Dr. S., remarked that he had seen the Veteran in the waiting room and he wished to make an addendum to the file. Although he had terminated his work with the Veteran some time ago, the doctor had time to reflect on the Veteran and their work together. He believed the Veteran was malingering symptoms for a secondary gain. He felt the Veteran's anger kept them from doing much work together, but he never saw any true symptoms of posttraumatic stress disorder (PTSD) in him. At their last meeting, the Veteran came forward with a huge list of new symptoms that he had never mentioned before, including multiple psychotic symptoms. In a December 2009 VA behavioral health ER consultation, the Veteran presented with vague homicidal ideation, which he attributed to a blackout caused by someone in a bar slipping something in his drink. He stated that he "came to" earlier in the morning in a crack house. He denied suicidal ideation. The Veteran had not worked in approximately two and a half years, was currently unemployed, and resided at a shelter or supportive housing setting. He reported that he had been to inpatient rehabilitation several times and that for the past three to four months, he had not used crack, up until last night. He reported that he smoked marijuana regularly. He last used alcohol, cocaine, and marijuana the night prior. Mental status examination revealed a fairly groomed, frustrated man. His thought process was linear and rational. His mood was agitated and anxious, and his affect was slightly flat. The Veteran denied hallucinations and no psychotic symptoms were observed. Memory was fair and insight and judgment were poor. In a December 2009 VA behavioral health assessment, the Veteran presented with continuous polysubstance abuse, a recent history of unstable housing, and an episode of a blackout. He related that something was probably put into his drink last night and then he "went blank" and woke up in a crack house. He related that he was uneasy and worried about whether he would be able to control himself if he went back to his shelter. He expressed vague homicidal ideas and worried about "going off." On mental status examination, the Veteran was awake, alert, forthcoming, and on edge. He emphasized that he was really worried about himself. He was reality grounded, without thought disorder, and denied voices or visions. He admitted polysubstance abuse. He denied suicidal ideation. The examining physician stated, "I carry a strong index of suspicion that his substance abuse may be more profound than he admits and that his claim of increased irritability and potential for loss of control may be reflective of this." The Veteran signed a voluntary commitment and was admitted. In a December 2009 VA inpatient psychiatry history and physical note, the Veteran reportedly sought admission at the VAMC because he felt "uneasy" as a result of coming out of a blackout. He was drinking a bottle of beer in a bar and left his bottle unattended while he went to the restroom. He came back and started drinking it again, and that was the last thing he remembered before he arrived at a halfway house. He was convinced that someone put something in his drink, but was reluctant to believe they had nefarious intentions. He denied homicidal ideation or intentions of harming the person who allegedly drugged him. He sought admission because he was afraid of what he might do in a more agitated mindset. The Veteran was largely articulate and appeared to have insight, but the remainder of the interview was non-linear and colored by paranoid and narcissistic/entitled themes. He did not believe substance abuse contributed to his mood symptoms because he was depressed before he started using substances. He was evasive as to his cocaine use, despite a positive toxicology screen. Mental status examination revealed a well-appearing man wearing hospital pajamas. He had good eye contact; normal, articulate speech; "okay" mood; largely euthymic affect; and some irritable tendencies. He was mostly pessimistic and would grimace and curse when discussing feelings of victimization. He denied suicidal or homicidal ideation, and there was no evidence of hallucinations or thought disorder. He had prominent paranoid themes, but no frank delusions. He was narcissistic and entitled at times, and his thoughts were mostly tangential and overinclusive, but linear when redirected. Insight was fair with regard to mistrust, but impaired with regards to substance abuse. Judgment was limited. The examining physician's impression was the Veteran had a paranoid and somewhat victimized or entitled worldview. Otherwise, he lacked significant mood, anxiety, or psychotic symptoms, or signs of acute dangerousness at that time. It appeared the Veteran was "chronically disgruntled with dysthymic tendencies which were likely exacerbated by recurrent substance abuse and possibly Axis II traits; themes he would be reluctant to accept." A GAF score of 40 was assigned. In an April 2010 statement, S. M., a friend of the Veteran's, stated that he knew the Veteran for over 50 years. The Veteran lived with Mr. M. for about one year after returning to Philadelphia from Florida. During that time, he contacted his sister to coordinate dividing their grandparents' property. Mr. M. noted that the conversation between the Veteran and his sister did not go well because he could detect extreme bitterness in the Veteran's attitude. He exhibited aggressive feelings toward his sister and had "obsessive or compulsive "thoughts about harming his sister. In a June 2010 VA mental disorders examination report, the examining physician noted treatment records contain diagnoses of malingering; schizoaffective disorder; substance abuse; anxiety disorder not otherwise specified (NOS); adjustment disorder; numerous hospitalizations subsequent to homicidal, suicidal, and drug dependency issues and homelessness; and a request for inpatient treatment of PTSD, although there was no diagnosis of PTSD. The Veteran reported he felt depressed more days than not and described the symptom of depression as moderate to severe. He reported he experienced anhedonia more days than not and described the symptom as severe. He experienced insomnia and difficulty sleeping every night, and reported he slept three to four hours per night. He had concentration problems in the form of indecisiveness and difficulty maintaining focus. He described the symptom as moderate to severe and reported it was there more days than not. He had a decreased appetite and weight loss of ten to fifteen pounds. He had fatigue or loss of energy which was present more days than not. He denied any thoughts or feelings of worthlessness or guilt, and suicidal ideation. Mental status examination revealed appropriate behavior overall. The Veteran was casually dressed, and he was alert and oriented to time and place. His attitude toward the examiner was guarded, suspicious, angry, and irritable. His mood was euthymic and his affect was angry and irritable. His thought processes appeared linear and goal-oriented. He appeared to have significant paranoid ideation. Information and intelligence appeared within normal limits. Speech was normal. Concentration and memory were within normal limits. The Veteran denied suicidal ideation. He reported passive homicidal ideation but denied having any specific target. With respect to occupational functioning, the Veteran had been unable to hold a job since being released from service. His psychiatric symptoms appear to have profoundly impacted his employment functioning. He described no evidence that his symptoms of depression had currently impacted his occupational functioning. He attributed all of his occupational functioning problems to problems and conflict with other people and other people treating him unfairly. With respect to social functioning, the Veteran reported significant impairment in social functioning associated with his psychiatric problems. He described himself as a loner and indicated he was unable to trust individuals. He reported he had some contact with old friends that he grew up with, but did not describe significant interference or impact in those relationships. He related that he had one sister who played games with him referring to housing issues. When asked more about his relationship with her in the context of relationships with others, he reported, "I'll put her in a box too if she keeps getting in my way." It was evident the Veteran had considerable problems with relationships with others as a result of his psychiatric symptoms. There was no evidence that the Veteran's current symptoms of depression impacted his abilities to carry out his activities of daily living. The examiner noted the Veteran's long history of polysubstance dependency issues, paranoid ideation, chronic interpersonal difficulties, and several diagnoses in his chart and claims file related to schizoaffective or psychosis disorders and Axis II pathology, including mixed personality disorder and personality disorder NOS. The Veteran was not formally assessed for any personality disorder in this evaluation. According to the evaluation, the physician felt the Veteran met full diagnostic criteria for major depressive disorder. The Veteran indicated that his depression had gotten worse, but went on to describe primarily anger and irritability. He had a long history of polysubstance dependency issues. He reported his last cocaine usage was three years ago, but he continued to use marijuana on a regular basis. The diagnoses were major depressive disorder NOS; polysubstance dependence in partial remission; anxiety disorder NOS; and mixed personality disorder as per his medical record and claims file. A GAF score of 48 was assigned. During the October 2010 Travel Board hearing, the Veteran reported that his last VA examination for his depressive disorder was over one or two years ago. He stated that he had a trust issue and it was difficult for him to relate or talk to VA staff because they recommended he stop using illegal or alcoholic substances. He related that he self medicated using substances so he did not have to "feel." He stated that drugs and alcohol were a problem "at one point" in his life; however, they were no longer a problem. He felt that since he realized that his depression was brought on by trust issues, he was able to deal with it a lot better. He reported having ten drinks in the last year, and the only substance he used was marijuana "from time to time." The Veteran reported that he had suicidal and homicidal thoughts "early on in the diagnosis." He stated that suicidal thoughts had crossed his mind, but he tried to get past them because he realized it was just his depressive disorder. He related that if he were to commit suicide, he would use the police and referred to it as "suicide by cops." He would go out and cause a confrontation with a policeman or someone in authority to kill him because he could not kill himself. The Veteran testified that he had panic attacks four or five times a month and lasted an hour or two. He indicated that he had nightmares and constantly felt disoriented. He related that he went to the hospital two or three times per week to make sure he did not miss appointments and to get a printout of his appointments. The Veteran reported that he did not engage in ritual obsessions like making sure that the doors to his apartment were locked three or four times. He related that he locked the deadbolt when he entered his apartment to prevent anyone the realtor sent over, like the exterminator, from entering. He maintained that he was not a social person and he preferred to be alone. He was irritated around people and hated riding the bus or trolley. He testified that he would get irritated and angry and then get off the bus and wait for something else to come along. He felt he could not afford to get violent, so he walked away or avoided it. The Veteran mentioned that even while living on the street, he tried to keep clean if he had access to hot water and a clean towel. The Veteran related that he had been in and out of 40 jobs. He left all of his jobs (except one) because he did not want people to try and manipulate him into doing things that were not required. Currently, he felt he could not work because he did not want to hurt somebody. He could not "deal with personalities." The Veteran indicated that he no longer sought treatment from VA for his depressive disorder because he had to identify his problem and VA staff was unable to help him work through that problem. He stated that he could not express the actual nature and cause of where his depression came from and they could not communicate. He reported that VA would not give him anything that helped him. Analysis Increased rating In order for a rating higher than 50 percent to be awarded for a major depressive disorder, there must be evidence of 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. In the present case, the Board notes the June 2010 VA mental disorders examination and various VA mental health notes in which the Veteran presented with a depressed mood, however all described the Veteran as oriented to person, time, and place; and indicated normal speech. The Veteran consistently exhibited a impaired impulse control (such as unprovoked irritability); difficulty in adapting to stressful circumstances (including work or a work like setting); and an inability to establish and maintain effective relationships. among the symptoms listed for the assigned 70 percent rating. The Board notes the Veteran reported instances of suicidal or homicidal ideation throughout the time period on appeal. Throughout the record, the Veteran reported fleeting thoughts of suicide or homicide, but he repeatedly denied that he would kill himself or that he had a desire to hurt others. For instance, in July 2007 VA mental health notes, the Veteran reported profound thoughts of homicide, but his homicidal thoughts were not specific or directed at any one individual. His anger was a general feeling against racism. One month later, in an August 2007 VA primary care note, there was no evidence of any current psychotic symptoms at all and he denied suicidal and homicidal ideation. The Board also notes a June 2009 VA behavioral health ER consultation, where the Veteran presented with "suicidal and homicidal ideations on a daily basis." However, in a June 2009 VA addendum, the Veteran recanted his story and reported he had no desire to hurt himself or others. During the October 2010 hearing, the Veteran himself reported he had suicidal and homicidal thoughts "early on in the diagnosis." He stated that suicidal thoughts had crossed his mind, but he tried to get past them and he related that he could not kill himself. He mentioned that he could not afford to be violent, so he avoided violence toward others. . Clearly, the Veteran suffered from occupational and social impairment due to his psychiatric symptomatology, as evidenced by his varied employment history and general irritability towards other people. In the Board's opinion, the extent of his impairment for this time period is contemplated by a 70 percent rating. For the most part, the Veteran's GAF scores have ranged from 40 to 65, with most scores in the 40's. The scores of 40 to 65 span a range of mild to serious symptoms, as cited above. A scores of 40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). He was assigned a score of 40 in November 2007 after being admitted to a VA SATU. After reviewing the record, the Board has determined that the assigned GAF scores are most consistent with a 70 percent rating. The Global Assessment of Functioning (GAF) score reflects the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Richard v. Brown, 9 Vet. App. 266 (1996); Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). See Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) ((DSM-IV); see also 38 C.F.R. § 4.125. The Board is cognizant that a Global Assessment of Functioning score is not determinative by itself. The Board notes that an examiner's classification of the level of psychiatric impairment, by word or by a Global Assessment of Functioning (GAF) score, is considered but is not determinative of the VA disability rating to be assigned. Rather, the evaluation is based on consideration of all of the evidence that bears on occupational and social impairment. 38 C.F.R. § 4.126; VAOPGCPREC 10-95. While the Board finds evidence supporting a 70 percent rating, there is no evidence to support a 100 percent rating, inasmuch as 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, have not been demonstrated. While the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). In this case, no medical expert with specialized knowledge or training described the criteria for a rating greater than 70 percent. Finally, the Board has also considered whether referral for extraschedular consideration is suggested by the record. In Thun v. Shinseki, F.3d 1366 (Fed. Cir. 2009), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the disability picture requires the assignment of an extraschedular rating. In the case at hand, there is no objective evidence that the disability picture presented is exceptional or that schedular criteria are inadequate. The Board finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to his depressive disorder, which would take the Veteran's case outside the norm so as to warrant the assignment of an extraschedular rating during the appeal period. The Board notes the Veteran's varied employment history and lack of current employment. However, the June 2010 VA examiner found no evidence that the Veteran's symptoms of depression had impacted his occupational functioning. The Board also recognizes the Veteran was hospitalized on several occasions; however, the hospitalizations were for substance abuse treatment, with the exception of a voluntary commitment in December 2009. The Veteran reported to the ER with vague homicidal ideation after someone allegedly put something into his drink at a bar and he blacked out and woke in a crack house. In a December 2009 behavioral health assessment, the examiner noted, "I carry a strong index of suspicion that his substance abuse may be more profound than he admits and that his claim of increased irritability and potential for loss of control may be reflective of this." In a December 2009 VA inpatient psychiatry note, the Veteran was evasive as to his cocaine use, but a toxicology screen was positive for the substance. The examiner felt that the Veteran's "dysthymic tendencies were likely exacerbated by recurrent substance abuse and possibly Axis II traits." Based upon the VA examiners' opinions, the Board has determined that the December 2009 hospitalization was most likely related to his substance abuse rather than his depressive disorder. Regardless, to warrant an extraschedular rating, the Veteran would need to show frequent hospitalization due to depressions symptoms, which is simply not the case here. Thus, it is concluded that the Veteran's impairment is contemplated by the schedular rating assigned, particularly when the symptoms of the disability falls squarely in the 70 percent evaluation. TDIU In October 2004, the Social Security Administration found the Veteran disabled due to his psychiatric disorders. Following the August 2008 VA psychiatric examination, the examiner concluded that the Veteran had severe occupational impairment with the inability to maintain full-time employment due to his symptoms. Following the June 2010 VA psychiatric examination, the examiner concluded that with respect to occupational functioning, the Veteran had been unable to hold a job since being released from service. His psychiatric symptoms appear to have profoundly impacted his employment functioning. As of this decision, records show that the Veteran is currently service-connected in receipt of a 70 percent rating for his depressive disorder, and a 10 percent rating for left ankle sprain. The Veteran's combined service- connected evaluation for compensation purposes is 80 percent. Thus, the Veteran meets the rating criteria outlined above for consideration of a total rating under 38 C.F.R. § 4.16(a), and the determinative issue is whether he is unable to secure and follow a substantially gainful occupation because of his service-connected disabilities. In the present case, the Veteran has not worked for years. At this point, any attempt to return him to the work force would be futile. Moreover, based on the SSA determination noted above, it is clear that the Veteran is not suited for full time employment because of his depressive disorder. VA examiners in August 2008 and June 2010 have likewise questioned the Veteran's ability to maintain gainful employment. Based on the evidence discussed above, the Board finds that the record demonstrates that the Veteran's service-connected depressive disorder precludes him from engaging in substantially gainful employment. Thus, entitlement to a TDIU rating is warranted. ORDER Entitlement to a rating in excess of 70 percent for a depressive disorder, to exclude period of November 8, 2007 to December 1, 2007, is allowed, subject to the law and regulations governing the award of monetary benefits. Entitlement to a TDIU is allowed, subject to the controlling regulations applicable to the payment of monetary benefits. ______________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs