Citation Nr: 1127577 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 08-01 679 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the left knee. 2. Entitlement to an initial rating in excess of 10 percent for major depressive disorder prior to September 1, 2009. 3. Entitlement to a compensable rating for major depressive disorder since September 1, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Ogilvie, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2004 to February 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which granted the Veteran's claims for degenerative joint disease of the left knee and major depressive disorder, and assigned noncompensable (0 percent) ratings for each, effective February 10, 2007. In March 2010, the RO found clear and unmistakable error in the May 2007 rating decision, and assigned a 10 percent rating for major depressive disorder, effective February 10, 2007. A noncompensable evaluation was assigned from September 1, 2009. Because the Veteran has disagreed with the initial ratings assigned following the grants of service connection for degenerative joint disease of the left knee and for major depressive disorder, the Board characterized these claims in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Moreover, although the RO has granted a higher rating during the pendency of the appeal of 10 percent for major depressive disorder, prior to September 1, 2009, inasmuch as higher ratings for this disability are available, and the Veteran is presumed to seek the maximum available benefit for a disability, the Board has characterized this claim as now encompassing the last two matters set forth on the title page. See Fenderson, 12 Vet. App. at 126; AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim on appeal have been accomplished. 2. The Veteran's left knee degenerative joint disease has been manifested by arthritis and complaints of pain; there have been no findings of decreased flexion or extension, instability, subluxation, or other impairment. 3. Prior to September 1, 2009, the Veteran's primary psychiatric symptom was depressed mood, requiring continuous medication. 4. Since September 1, 2009, the Veteran's major depressive disorder has been resolved. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for degenerative joint disease of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5010 (2010). 2. Prior to September 1, 2009, the criteria for an initial rating in excess of 10 percent for major depressive disorder were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9434 (2010). 3. Since September 1, 2009, the criteria for a compensable rating for major depressive disorder have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9434 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings, as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. As service connection, an initial rating, and an effective date have been assigned for each claim, the Board finds that 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 record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of service, VA treatment records, and VA examination reports. The Board also finds that no additional RO action to further develop the record is warranted as to the matters on appeal. In summary, the duties imposed by the VCAA have been considered and satisfied. Through notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with these claims. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). However, where, as here, the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Left Knee Degenerative Joint Disease The Board notes, at the outset, that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The RO assigned the initial, 10 percent rating for the Veteran's left knee degenerative joint disease under Diagnostic Code 5010 (arthritis due to trauma). Pursuant to Diagnostic Code 5010, arthritis due to trauma should be rated on the basis of limitation of motion of the affected parts, as degenerative arthritis (Diagnostic Code 5003). Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. For rating purposes, normal range of motion in a knee joint is from 0 degrees (extension) to 140 degrees (flexion). 38 C.F.R. § 4.71, Plate II. The Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). VA's General Counsel has also held that a claimant who has arthritis (resulting in limited or painful motion) and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, cautioning that any such separate rating must be based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). The rating schedule authorizes the assignment of a 0 percent (noncompensable) rating in every instance in which the rating schedule does not provide for such a rating and the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. The relevant evidence of record reflects that on April 2007 VA examination, the Veteran reported a constant dull ache with intermittent sharp pain to the left knee. The Veteran had swelling, but he denied buckling or locking. He reported trouble with stairs and running more than one-quarter of a mile. The Veteran occasionally wore a knee brace. There were no effects on activities of daily living and on employment, although the Veteran mentioned that he was unable to work in security. On physical examination, the Veteran had a limp while walking. He favored transition the weight to his right side. The Veteran had good musculature, and his musculature had good tenacity. The Veteran was able to walk on his toes slightly with pain to the left knee, and he was able to walk on his heels. There were enlarged bony prominences to the patella bone. The Veteran had full flexion of the left knee to 120 degrees and full extension to 0 degrees. There was no Drawer sign, no McMurrays sign, and negative Lachman sign. The Veteran had some point tenderness to palpation of the medial joint space in the medical meniscal area. With movement, the Veteran had crepitus. He was able to leg lift a two pound weight attached to his ankle 10 out of 10 times. He reported having increasing, aching pain. There was no weakness, locking, or lack of endurance noted. The Veteran's sensory and neural were intact to sharp and dull stimulus, and he had positive pedal pulses, positive knee jerk, and deep tendon reflexes. The Veteran was diagnosed with minimal narrowing of the medial joint space, with minimal to moderate degenerative joint disease of the left knee. On a general VA examination the same month, the Veteran reported persistent pain, which worsened with walking or standing for prolonged periods of time. Occasionally, the Veteran's knee would swell on excessive exertion, but swelling was relieved with ice. Range of motion testing was deferred to the orthopedic examination, but otherwise, the Veteran had no joint swelling, effusion, atrophy, or laxity. A VA outpatient treatment record, dated in November 2009, notes that the Veteran's left knee pain was stable. The Veteran had full range of motion of his left knee with no evidence of weakness or lack of endurance on repetitive testing with weights. Besides pain and crepitus, no other symptoms were shown. The evidence also has not reflected that the Veteran suffers from recurrent subluxation or lateral instability. For these reasons, a rating in excess of 10 percent, even when considering DeLuca factors, is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of higher ratings, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Major Depressive Disorder The initial rating for the Veteran's major depressive disorder has been assigned pursuant to Diagnostic Code 9434. However, the actual criteria for rating the Veteran's disability are set forth in a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. Under the formula, a noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is assigned when there is 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 rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when 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 of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Prior to September 1, 2009 On April 2007 VA examination, the Veteran reported that most of his current stressors were financial and marital. From separation from the military, the Veteran had been working full-time as a maintenance technician. The Veteran had recently been prescribed Wellbutrin by his primary care physician. On mental status examination, the Veteran was cooperative and pleasant and appeared to be reliable. He was frequently tearful during the session, particularly when talking about his father's death and his knee disability. The Veteran was neatly dressed. He was not withdrawn or agitated. He denied any visual, auditory, or tactile hallucination, and was oriented times four. There was no evidence of altered level of consciousness. The Veteran's concentration was unimpaired, and abstract thinking was intact. The Veteran denied any obsessive thinking or compulsive behaviors. He noted that he would sometimes suddenly start to cry. His affect during the interview was one of depression, particularly crying when speaking of his father and his knee injury. He denied any suicidal or homicidal ideation or any history of suicidal or assaultive behaviors. The Veteran had no substance abuse history. The Veteran stated that he rarely had feelings of inadequacy and worthlessness, but on occasion he felt hopeless. Sleep was varied, but within six to 10 hours per night. The Veteran's energy level was described as "okay" during work. He stated that he was usually not irritable, but he was tearful. He denied any symptoms of mania or panic attacks. The Veteran stated that he had four friends, and did not belong to any clubs or groups. He was friendly with his neighbors and had no problems with authority figures. The Veteran had no problems completing everyday household tasks. The Veteran was diagnosed with moderate major depressive disorder and assigned a GAF score of 60. The examiner found that the Veteran's depression was related to his knee injury. He further found that, compounding the depression, was the Veteran's lack of social support. The examiner noted that the Veteran's psychiatric symptoms had no negative impact on his ability to obtain and maintain physical or sedentary employment. The Veteran was working full time and had not taken any time away from work. The examiner noted that the Veteran's thought processes and communication were expected to cause minimal interference with his social functioning. At a VA outpatient appointment in March 2008, the Veteran reported that he had stopped his medication a few months ago because he preferred not to be on medication. The Veteran denied any prior suicide attempts or hospitalizations. He reported to his primary care physician that a couple of days per month, he would wake up and know that he was not going to have a good day. On those days, he sometimes wished that he had never woken up. The Veteran denied any suicidal plans. He noted that he had approximately one or two days a month where he would experience depression. The Veteran was assigned a GAF score of 70. On April 2008, June 2008, and August 2008 VA outpatient treatment, the Veteran reported that his depression had decreased. On mental status examination, the Veteran was pleasant, cooperative, alert, and oriented to time, place, and person, with an intact memory. The Veteran's thoughts were logical, coherent, and goal directed. Insight and judgment were good. The Veteran was assigned a GAF score of 76 during all three appointments. The Veteran reported good efficacy from medication. He was working full time and going to school full time. Suicidal ideation, homicidal ideation, auditory hallucinations, visual hallucinations, and mood swings were consistently denied. The Veteran rated his appetite as good, but stated that he did not get enough sleep, due to his several commitments. The Veteran denied alcohol or substance abuse. In April, the Veteran noted that his depression was a "2" on a scale of 10, and his anxiety was a "4." In August, the Veteran rated his depression as a "2" and denied anxiety. In August, the Veteran was described as "stable and doing well." He also reported that his marriage had been annulled, and he had begun a new relationship which was going very well. Considering the evidence in light of the above, the Board finds that the preponderance of the evidence reflects that, prior to September 1, 2009, the criteria for an initial rating in excess of 10 percent for major depressive disorder were not been met. As indicated above, the Veteran's psychiatric symptoms were manifested, primarily, by complaints of depressed mood. The Veteran was working and going to school full time. On two occasions, he described his depression as a "2" out of 10. Panic attacks, hallucinations, and suicidal and homicidal ideation were denied. While the Board notes that on one occasion the Veteran reported feeling like he sometimes wished he would not wake up in the morning, the Veteran had no suicidal intent and his depression was only noted to affect him twice a month. For most of this rating period, the Veteran was on continuous medication. Collectively, the aforementioned medical evidence reflects that, for the period prior to September 1, 2009, the Veteran's symptoms resulted in no more than 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 otherwise defined by symptoms controlled by continuous medication. This is a level of occupational and social impairment consistent with the currently assigned 10 percent disability rating. At no point did the Veteran's major depressive disorder meet the criteria for at least the next higher, 30 percent, rating during this rating period. As noted above, under the General Rating Formula, the 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). However, the objective medical evidence did not show occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. As noted above, the Veteran was able to work and attend school full time, without any interference from his depression. While the Board acknowledges that the Veteran was diagnosed with moderate major depressive disorder at his April 2007 VA examination, the examiner noted that the Veteran's psychiatric symptoms had no negative impact on his ability to obtain and maintain employment. He also noted that the Veteran's thought processes and communication were expected to only cause minimal interference with his social functioning. The Board also finds that none of the assigned GAF scores, alone, provides a basis for assignment of any higher rating for the Veteran's service-connected major depressive disorder. The assigned GAF scores of record are 60 (in April 2007), 70 (in March 2008), and 76 (in April 2008, June 2008, and August 2008). Under the DSM-IV, GAF scores from 51 to 60 are indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 61 to 70 is reflective of some mild symptoms (e.g. depressed mood and mold insomnia) or some difficulty in social, occupational or school functioning. Scores ranging from 71 to 80 is reflective of transient symptoms if present at all, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational or school functioning. Id. The GAF score of 70 reflects the type of impairment contemplated in the current 10 percent rating, while the GAF scores of 76 clearly reflect even less impairment than that contemplated in the current 10 percent rating. Although the lowest GAF score of 60 suggests more significant impairment than what is contemplated in the initial 10 percent rating assigned, the Board notes that the Veteran's symptomatology described in the April 2007 VA examination (where this score was given) caused only minimal interference socially and no interference with employability. In determining that the criteria for a 30 percent rating for the Veteran's psychiatric symptoms shown are not met, the Board has considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assigned rating for major depressive disorder. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the circumstances of this case, the Board finds that, since the effective date of the grant of service connection through August 31, 2009, the Veteran's major depressive disorder symptomatology has more nearly approximated the criteria for the 10 percent rather than 30 percent rating. See 38 C.F.R. § 4.7. As the criteria for the next higher, 30 percent, rating are not met, it follows that the criteria for an even higher rating (50, 70, or 100 percent) likewise are not met. On these facts, there is no basis for an additional staged rating, pursuant to Fenderson, and the claim for an initial rating in excess of 10 percent for major depressive disorder prior to September 1, 2009 must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assignment of any higher rating, that doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. Since September 1, 2009 The only relevant medical evidence from the rating period since September 1, 2009 is a November 2009 outpatient treatment record. The Veteran reported doing well and had no complaints. The Veteran had been recently married and described a stable home life. The Veteran was diagnosed with depression that appeared to be resolved. The Veteran was no longer followed by the psychiatric department and was not taking any medications. A list of prescribed medications reflects that the Veteran stopped taking Wellbutrin on August 29, 2009. As previously noted, a noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. As the Veteran's depression was described as resolved, and the Veteran had ceased his medication and treatment, the evidence of record reflects that the Veteran's level of occupational and social impairment is consistent with the currently assigned noncompensable rating for the period since September 1, 2009. On these facts, there is no basis for an additional staged rating, pursuant to Fenderson, and the claim for a compensable rating for major depressive disorder since September 1, 2009 must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assignment of any higher rating, that doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. Extra-schedular The above determinations are based upon consideration of applicable provisions of VA's rating schedule. The Board also finds that there is no showing that, at any point, the Veteran's service-connected left knee or major depressive disorder has reflected so exceptional or so unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b). There is a three-step analysis for determining whether an extra-schedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule to determine whether the veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id. at 115-16; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. at 116. In this regard, the Board notes that nothing raised by the record indicates that the level of severity and symptomatology of the Veteran's service-connected left knee degenerative joint disease or his major depressive disorder is not adequately contemplated by the rating schedule. Id. In the absence of evidence of any of the factors outlined above, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) have not been met. See Thun, 22 Vet. App. at 115. ORDER Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the left knee is denied. Entitlement to an initial rating in excess of 10 percent for major depressive disorder prior to September 1, 2009 is denied. Entitlement to a compensable rating for major depressive disorder since September 1, 2009 is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs