Citation Nr: 1300252 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 09-35 261 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to a disability rating greater than 50 percent prior to January 1, 2011, for a service-connected bilateral hearing loss disability. 2. Entitlement to a disability rating greater than 30 percent from January 1, 2011, to April 18, 2011, for a service-connected bilateral hearing loss disability. 3. Entitlement to a disability rating greater than 40 percent from April 18, 2011, for a service-connected bilateral hearing loss disability. 4. Entitlement to an initial rating greater than 10 percent for service-connected major depressive disorder (MDD). 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Attorney, John Berry ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1954 to February 1956. These matters are before the Board of Veterans' Appeals (Board) on appeal from April 2009, September 2010, March 2011 and November 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Procedural History Bilateral Hearing Loss In December 1998, the RO awarded the Veteran service connection for a bilateral hearing loss disability; a noncompensable disability rating was assigned, effective August 5, 1997. The RO increased this rating to 30 percent, effective December 29, 1998; to 40 percent, effective August 14, 2000; and to 50 percent, effective April 27, 2005. In January 2009, the Veteran filed a claim of entitlement to a rating greater than 50 percent for his service-connected bilateral hearing loss disability. In the above-referenced April 2009 rating decision, the RO denied the Veteran's claim for an increased rating. The Veteran disagreed with that decision, and perfected an appeal as to that issue. During the pendency of the appeal, the RO reduced the Veteran's disability rating from 50 to 30 percent, effective January 1, 2011. See the September 2010 rating decision [as corrected by the September 2010 SSOC, page 3]. In November 2010, the Veteran filed a Notice of Disagreement with the RO's decision to reduce his rating. Following the Board's September 2011 remand, the RO addressed the propriety of this reduction from 50 to 30 percent in a September 2011 statement of the case (SOC). The Veteran perfected a timely appeal of the issue by filing a VA Form 9 in October 2011. The Board adds that in February 2011, the Board remanded the Veteran's increased rating claim for additional evidentiary development - in particular, so that the agency of original jurisdiction (AOJ) could schedule the Veteran for an updated VA audiological examination. Such was achieved, and the AOJ readjudicated the Veteran's increased rating claim in a May 2011 supplemental statement of the case (SSOC). Based on the results of this newly-obtained VA examination, the RO increased the Veteran's hearing loss rating from 30 to 40 percent, effective April 19, 2011. See the May 2011 SSOC, pages 3 and 4. The Veteran has expressed continued dissatisfaction with his current rating, and has made clear his desire to proceed with his appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). In May 2012, the Board issued a decision finding that the rating reduction from 50 percent to 30 percent effective January 1, 2011, was proper. At that time, the Board remanded the claim for consideration of additional evidence and readjudication of the claim. This requested development has been completed and the case is again before the Board for further appellate consideration. The issue of entitlement to a higher rating for a hearing loss disability rated as 40 percent disabling from April 18, 2011, is addressed in the REMAND below. Major Depressive Disorder In February 2011, the Board awarded service connection for major depressive disorder (MDD). The RO implemented the Board's determination in a March 2011 rating decision and assigned an initial 10 percent disability rating, effective May 15, 2009. The Veteran disagreed with this initially-assigned rating, and has perfected a timely appeal is to this issue. In May 2011, the Board remanded the claim for consideration of additional evidence and readjudication. The requested development has been completed and the case is again before the Board for further appellate consideration. TDIU In September 2011, the Board found that the Veteran had reasonably raised the issue of entitlement to a TDIU during the pendency of his appeal for an increased rating for a bilateral hearing loss disability. In light of the Court of Appeals for Veterans Claims holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board considered the TDIU claim as part of his pending increased rating claim and remanded the matter for AOJ consideration in conjunction with the increased rating claim on appeal. The RO subsequently denied the claim in a November 2011 rating decision. The Veteran disagreed with that determination and perfected an appeal as to this issue. In May 2012, the Board remanded this claim as it found that it was inextricably intertwined with the claims outlined above. The claim has since been readjudicated and is before the Board for further appellate consideration. The issue of entitlement to a TDIU is addressed in the REMAND below. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Prior to April 18, 2011, audiometric examinations correspond to no greater than Level VI hearing loss bilaterally. 2. From April 18, 2011, audiometric examinations correspond to no greater than a Level VI hearing loss for the right ear and a Level IX hearing loss for the left ear. 3. The Veteran's major depressive disorder is manifested by symptoms consistent with 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; occupational and social impairment with intermittent periods of an inability to perform occupational tasks, reduced reliability and productivity, deficiencies in most areas, and total occupational and social impairment have not been shown at any time during the appeal. 4. The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected bilateral hearing loss prior to April 18, 2011, and major depressive disorder disabilities are inadequate. CONCLUSIONS OF LAW 1. Prior to January 1, 2011, the criteria for the assignment of a disability rating higher than 50 percent for a service-connected bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (2012). 2. From January 1, 2011 to April 18, 2011, the criteria for the assignment of a disability rating higher than 30 percent for a service-connected bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (2012). 3. The criteria for an initial evaluation in excess of 10 percent for service-connected major depressive disorder have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 9434 (2012). 4. The criteria for referral of the Veteran's bilateral hearing loss prior to April 18, 2011, and major depressive disorder disabilities for consideration on an extra-schedular basis are not met. 38 C.F.R. § 3.321(b)(1) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all the evidence in the Veteran's claims file, his Virtual VA file, and his and his attorney's multiple contentions. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran of the information and evidence needed to substantiate and complete his claim for increase for service-connected bilateral hearing loss in March 2009, for service connection for major depressive disorder in May 2009, and for entitlement to a TDIU in September 2011. The letters provided notice of what evidence was to be provided by him, and what part VA would attempt to obtain. The letters also explained how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, the claim for increase for major depressive disorder arises from the Veteran's disagreement with the disability rating assigned following the grant of service connection. So the claim, as it arose in its initial context, has been substantiated - indeed granted. Therefore, additional VCAA notice is not required because the initial intended purpose of the notice has been served. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Furthermore, the Board finds that the Veteran's attorney has demonstrated actual knowledge of how to substantiate the claims on appeal. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claims, and, as warranted by law, affording him VA examinations. The Veteran underwent VA audiological examinations in April 2009, June 2010, April 2011, and an addendum opinion was obtained in November 2011. He underwent VA mental disorders examinations in July 2009 and November 2011. The examinations are adequate for the purpose of adjudication of the claims. The examination reports reflect that the examiners reviewed the claims file, electronic VA treatment records, and/or the Veteran's reported history of the respective disability. The examiners recorded his current complaints, conducted appropriate examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that the examinations in combination with the other evidence of record are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically with respect to audiological examinations, in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012). The Court also noted that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow deficient, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. While the Veteran's attorney has regularly cited law and regulations pertinent to the adequacy of VA examinations, neither he nor the Veteran have asserted that there is any specific deficiency in the examinations conducted. Further, the Board notes that the VA examination reports discussed the Veteran's problems with difficulty understanding speech, especially in noisy environments, and the effects of the Veteran's hearing loss disability on his prior occupation in realty. Thus, as contemplated by Martinak and directed by 38 C.F.R. § 4.10, the examiners discussed the functional effects of the Veteran's hearing problems in the examination reports. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate, however, in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). A. Bilateral Hearing Loss Disability Prior to April 18, 2011 Historically, service connection was granted for a bilateral hearing loss disability in 1998. As noted in the Introduction, the current appeal stems from a January 2009 claim for increase wherein the Veteran asserted that his bilateral hearing loss had worsened. A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86 (puretone threshold of 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz; puretone threshold of 30 decibels or less at 1000 Hertz; and 70 decibels or more at 2000 Hertz). 38 C.F.R. § 4.86. Prior to January 1, 2011, the Veteran underwent audiometric testing during VA and QTC audiological examinations in April 2009 and June 2010. At the time of the April 2009 VA examination, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 60 65 70 75 LEFT 60 65 65 65 Puretone threshold averages were 68 decibels in the right ear and 64 decibels in the left ear. Speech audiometry showed a speech recognition ability of 68 percent in the right ear and 76 percent in the left ear. Application of the results from the April 2009 examination to Table VI in 38 C.F.R. § 4.85 yields findings of Level VI hearing loss in the right ear and Level IV hearing loss in the left ear. Where hearing loss is Level VI in the worse right ear and Level IV in the better left ear, a 20 percent evaluation is assigned under Table VII. 38 C.F.R. § 4.85 (2012). Additionally, because the puretone threshold at each of the four specified frequencies is 55 decibels or more bilaterally, findings on this examination warrant consideration under 38 C.F.R. § 4.86 for an exceptional pattern of hearing impairment. Under these circumstances, the rating specialist is to determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86. Application of the results from the April 2009 examination to Table VIa in 38 C.F.R. § 4.86 yields findings of Level V hearing loss bilaterally. Where hearing loss is at Level V bilaterally, a 20 percent evaluation is assigned under Table VIa. 38 C.F.R. § 4.86 (2012). At the time of the June 2010 QTC examination, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 80 75 70 70 LEFT 70 70 75 80 Puretone threshold averages were 74 decibels bilaterally. Speech audiometry showed a speech recognition ability of 84 percent in the right ear and 76 percent in the left ear. Application of the results from the June 2010 examination to Table VI in 38 C.F.R. § 4.85 yields findings of Level III hearing loss in the right ear and Level V hearing loss in the left ear. Where hearing loss is Level V in the worse left ear and Level III in the better right ear, a 10 percent evaluation is assigned under Table VII. 38 C.F.R. § 4.85 (2012). Additionally, findings on this examination warrant consideration under 38 C.F.R. § 4.86 for an exceptional pattern of hearing impairment. Application of the results from the June 2010 examination to Table VIa in 38 C.F.R. § 4.86 yields findings of Level VI hearing loss bilaterally. Where hearing loss is at Level VI bilaterally, a 30 percent evaluation is assigned under Table VIa. 38 C.F.R. § 4.86 (2012). Prior to January 1, 2011, based upon the rating criteria for exceptional patterns of hearing impairment, under table VIa, the Veteran's right ear, at its worst, has a designation of Level VI, and his left ear, at its worst, has a designation of Level VI. Under Table VII, his bilateral hearing impairment warrants a 30 percent evaluation. Thus, the evidence of record does not show that the Veteran's bilateral hearing loss more nearly approximate the rating criteria necessary for assignment of the next-higher 60 percent evaluation. Accordingly, the Board finds that the 50 percent evaluation currently in effect prior to January 1, 2011, is appropriate. While the objective findings prior to January 1, 2011, appear to support no more than a disability evaluation of 30 percent, the 50 percent rating in effect prior to January 1, 2011 will not be disturbed. With respect to a rating in excess of 30 percent for the period from January 1, 2011, to April 18, 2011, the Board observes that the record contains no audiometric findings from which to determine the nature and severity of the Veteran's bilateral hearing loss disability. In as much as the evidence prior to April 18, 2011, does not contain evidence of hearing impairment consistent with a rating in excess of 30 percent, it necessarily follows that the 30 percent evaluation currently assigned during this period is appropriate. Specifically the 30 percent evaluation in effect during this time is a reflection of audiometric findings during the most recent June 2010 audiological QTC examination noted above. Thus, for the reasons already discussed, the 30 percent evaluation currently in effect from January 1, 2011 to April 18, 2011, is appropriate. B. Major Depressive Disorder In February 2011, the Board granted service connection for major depressive disorder secondary to service-connected bilateral hearing loss. The grant of service connection was effectuated in a March 2011 rating decision which assigned a 10 percent rating from the date the claim was received under 38 C.F.R. § 4.130, Diagnostic Code 9434. The instant appeal ensued. Under Diagnostic Code 9434, which is governed by a General Rating Formula for Mental Disorders, a 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous use of medication. 38 C.F.R. § 4.130, Diagnostic Code 9434 (2012). A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and/or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and/or inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. Id. A veteran need not exhibit "all, most, or even some" of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Rather, the criteria ("such symptoms as") provides guidance as to the severity of symptoms contemplated for each rating in addition to permitting consideration of other symptoms particular to the Veteran. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2012). One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). GAF scores ranging from 71 to 80 reflect that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in school work). GAF scores ranging from 61 to 70 reflect 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, and has some meaningful interpersonal relationships. A GAF score of 51 to 60 reflects 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). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect 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). A GAF score of 21 to 30 indicates that behavior is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment (e.g., sometimes incoherent, acting grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). A GAF score of 11 to 20 indicates that there is some danger of hurting oneself or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement), or an occasional failure to maintain minimal personal hygiene, or gross impairment in communication. While the Rating Schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130 (2012). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2012). In this case, in May 2009, the Veteran reported that he had become increasingly angry, frustrated and depressed over his hearing loss. He was unhappy about all he misses in life due to hearing loss. Lately, he felt like he was going to blow if he did not talk to someone about it. He was upset but very reasonable and seemed to feel better after ventilating his feelings. In a statement received from the Veteran, he indicated that he could not socially interact. He was reluctant to ask people what they said because he could not hear them anyway. He could not talk to his grandchildren or watch movies and communication was almost impossible and non-existent. He missed the significance of movies and communication. During a June 2009 psychology consultation, the Veteran was frustrated and angry about not being treated fairly and by the cold and unfeeling nature of VA and the RO. He was frightened by his "financial straights" and reportedly became overwhelmed by those fears at times, which caused him to fall into a depression. Such episodes reportedly lasted for one or two days in which he would sleep 14 hours a day, not get out of bed, not eat or drink, not have energy or motivation, and would feel hopeless and out of control and isolate himself. Such episodes occurred once a month and more often during winter months. Due to hearing loss, he found communication with others difficult to impossible at times which resulted in frustration in social situations. He felt unable to do many activities that he would like to do due to financial constraints which he viewed as due to the RO's refusal to rate his hearing loss as 100 percent disabling. Although his claim was on appeal, he felt hopeless about the situation and about his financial situation as a result. Socially, the Veteran and his ex-wife divorced 20 years prior. He had four adult children and six grandchildren who he enjoyed spending time with but did not do so as often as he liked due to hearing difficulty which "becomes frustrating to everyone." Occupationally, he retired from his career in real estate sales eight years prior due to his hearing. Mental status examination revealed that the Veteran had good grooming and hygiene. His motor behavior was unremarkable. He was cooperative and friendly. His speech was loud and of regular rate and rhythm. His receptive speech was clearly limited by hearing loss. His mood was frustrated and his affect was full and congruent. He was alert and fully oriented. Without formal assessment, his attention, concentration and memory appeared to be grossly intact. His thought processes appeared logical and goal directed with no psychosis. Suicidal and homicidal ideations were denied. The psychologist diagnosed recurrent major depressive disorder, mild in degree and assessed a GAF score of 65. The Veteran was not interested in mental health treatment but stated that he would consider it for the future. In conjunction with the initial claim, the Veteran was afforded a VA examination in July 2009 by a psychologist who reviewed the claims folder. Complaints included difficulty and frustration with social interaction due to hearing loss. The Veteran felt frustrated, miffed and irritated at times about his hearing. Overtime, he had withdrawn from others. He related feelings of frustration and helplessness regarding VA's lack of fairness or caring. He described a sense of dysphasia due to the lack of disability that would provide to him more opportunities, not the hearing loss. He dreamed of being discarded or lost in some country where he cannot speak the language but then he "cannot wait for the day to begin." His appetite, sleep, and energy level were generally good unless he has "atrial fib," which decreased his energy. History of suicide attempts, violence, assaultiveness, or problematic effects of alcohol or other substance use was denied. Socially, the Veteran had a few friends with whom he associated with. He enjoyed working out at the YMCA for a couple hours a day where there were some people that he regularly saw. He loved nature and to garden. He rented a room with a lady friend who he had known for a long time. Occupationally, the Veteran was retired from his real estate sales career because his hearing prevented him from interacting. He was reportedly self-employed since two years prior doing yard and handyman work. He had one lawn that he mowed for 20 dollars every two weeks. Mental status examination remained essentially unchanged, however, for the past month, the Veteran's mood reportedly had been stable and good. Following review of the claims file and examination of the Veteran, the examiner opined that the Veteran did not meet the DSM-IV criteria for any Axis I mental disorder, to include major depressive disorder. He stated that mental disorder symptoms did not require continuous medication and were not severe enough to interfere with occupational and social functioning. During a December 2009 primary care assessment, the Veteran continued to feel depressed over his inability to hear. He had become quite limited in his ability to interact with others due to hearing loss. He avoided going out in public and meeting with people and had become somewhat withdrawn due to hearing loss and difficulty communicating. He experienced agitation when around people and when he cannot discern what is being said he leaves from social situation. He had feelings of worthlessness but was not at all suicidal. He had definite plans for the future. He felt very frustrated with his interactions with VA. Although treatment was recommended for a depressive disorder, the Veteran declined as he preferred treatment with meditation and regular exercise. In April 2011, a VA nursing intake clinic note showed that the Veteran screened negative for depression. He responded "not at all" as to whether he experienced little pleasure or interest in doing things and whether he was feeling down, hopeless or depressed. In contrast, during an April 2011 VA audiological examination, he stated that he is "passive aggressive" and swings wildly from one mood to another when in frustrating listening environments. He reported that he often shuts down and cannot listen when in background noise, even with use of hearing aids. In November 2011, the Veteran underwent an additional VA mental disorders examination with a psychologist who reviewed the claims file. He denied receiving psychotherapy or taking medication for treatment. The examiner stated that the symptoms listed in the mental disorders disability benefits questionnaire did not apply(i.e., depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, short- or long-term memory loss, flattened affect, impaired speech, difficulty establishing and maintaining effective work and social relationships, etc.). It was noted that when in a restaurant, the Veteran cannot read lips well and has to get out. The Veteran described his mood was pretty stable from day to day with some swings but he had learned to keep it pretty constant. He found that walking four miles a day really helps his mood. He had a very healthy appetite. He slept for six and a half hours a night and took a half hour nap after returning from the gym. He was not suicidal or homicidal and he denied feelings of guilt, worthlessness, helplessness or hopelessness. He denied crying spells or an inability to cry. Socially, the Veteran described himself as "not much of a social butterfly." He knew people at the YMCA and he had a few "close friends" who he meets with for morning coffee. He had been living with the same person for the last 15 years with whom he had a good relationship. He helped her with a little bit of mowing. His hobbies and interests were fairly strong and included exercise, walking, maintaining his botanical garden and reading. His hearing aids reportedly brought him sounds of joy with the birds singing and listening to music. His motivation for his hobbies and interests was good. During examination the Veteran's affect was calm and unremarkable. He was collected, congenial and affable. He was in good spirits, his mood was stable and concentration was normal. He functioned very well for his age (76 one month later). The examiner said that the Veteran should be commended for his positive attitude in spite of his long time efforts in the claims process where some may demonstrate frustration toward the examiner during examination. His functioning was unremarkable and his symptomatology would suggest that he functions very fine. The examiner diagnosed major depressive disorder that results in social and occupational impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. A GAF score of 70 was assigned. Additional VA treatment records in Virtual VA show that a depression screening was again negative in April 2012. The Veteran denied having little interest or pleasure in doing things or feeling down, depressed, or hopeless. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the Veteran's psychiatric symptomatology is appropriately evaluated as 10 percent disabling, and it does not more nearly approximate the rating criteria in excess of a 10 percent disability rating at any time since his claim for service connection was received. Throughout the claim, the Veteran's major depressive disorder is shown, at worst, to have been productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks. GAF scores assigned during the claim range from 65 at worst to 70 at best, which is reflective of transient and expectable reactions to psychosocial stressors to some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, and has some meaningful interpersonal relationships. Such scores are consistent with the Veteran's complaints during the claim. Treatment records during this time do not show that Veteran's acquired psychiatric disability has resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. There is simply no evidence that the Veteran's major depressive disorder was manifested by the type, severity or frequency of symptoms suggested under the criteria for the next-higher 30 percent rating. While the Veteran reported episodic depressed moods, more often than not, he denied feeling depressed. He also stated that he learned to keep his mood stable by engaging in his interest and hobbies such as exercise and meditation. Moreover, his sleep was not chronically impaired for any duration of time and he reported a "remote history" of panic attacks years prior to filing his claim. His memory was also found to be intact on all occasions. While the Veteran clearly experiences decreased social functioning, it appears to be due to his hearing loss as opposed to any symptomatology of depressive disorder. To the extent that any decreased social functioning is due to depressive disorder symptomatology, it still does not rise to the level of impairment of intermittent periods of an inability to perform social and occupational tasks. Rather, it more closely approximates impairment due to mild or transient symptoms during times of significant stress (i.e., it appears to be situational and limited to group social outings or settings with significant background noise) as opposed to any inability to function socially due to symptomatology of depressive disorder. Indeed, while the Veteran has stated that he gets irritated and has to leave a restaurant when he is unable to hear, he nevertheless is able to attend morning coffee outings with his friends. Moreover, the Veteran has lived with another individual for the last 15 years with whom he reportedly has a good relationship with. Such facts are not demonstrative of any inability to function socially or occupationally. Finally, it is significant to reiterate that the November 2011 examiner described the Veteran as affable and stated that the symptoms listed in the DBQ were not applicable to the Veteran. While not every symptom or even the majority of symptoms listed under the rating criteria for a specific evaluation needs to be present, the totality of the evidence reflects that the majority and the severity and type of the symptoms necessary for the assignment of a 30 percent evaluation have not been present. The Veteran's depressive symptomatology, in and of itself, does not impact his social and occupational functioning such that a higher rating is more nearly approximated. In light of the foregoing, the Board concludes that the Veteran's major depressive disorder is adequately addressed by the 10 percent evaluation previously assigned under Diagnostic Code 9434. See 38 C.F.R. § 4.130. Thus, the Board finds that the preponderance of the evidence is against the claim for an initial disability rating in excess of 10 percent for major depressive disorder at any time during the claim. Consideration has been given to assigning a staged rating; however, for reasons previously discussed, at no time during the claim has the disability warranted more than the 10 percent evaluation previously assigned. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board acknowledges that VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). In addition to the medical evidence above the Board has carefully considered the Veteran's account of his symptoms, in the form of his correspondence to VA and as documented in treatment records and examination reports. Although the Veteran is competent to report his own overall symptomatology, he is not competent to determine the nature and degree of his psychiatric disability, as various examiners have consistently done. Extraschedular Consideration The Board also has considered whether the Veteran is entitled to a greater level of compensation for his bilateral hearing loss and major depressive disorder disabilities on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is 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 does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. A. Bilateral Hearing Loss With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected hearing loss are inadequate. A comparison between the level of severity and symptomatology of the Veteran's hearing loss with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran reports difficulty understanding speech in certain situations such as over the phone and in the presence of background noise. The Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria. Therefore, the Veteran's struggle to comprehend verbal conversations is a factor contemplated in the regulations and rating criteria as defined. The simple fact that the Veteran's hearing disability does not satisfy the numerical criteria for the assignment of disability ratings in excess of those presently assigned under these criteria, to include the criteria specifically designed for the type of real-world impairment experienced by the Veteran, does not place his symptomatology outside of that contemplated by the rating schedule or make application of the rating schedule impracticable in this case. Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. In support of this conclusion, the Board notes that in April 2008, an administrative review was conducted by the Director of Compensation and Pension services to determine whether an extra-schedular evaluation was warranted for bilateral hearing loss under 38 C.F.R. § 3.321(b)(1). Significantly, at the time the case was reviewed in April 2008, the evidence and complaints pertaining to hearing loss were essentially the same as they are now. Specifically, in April 2008, the Veteran was retired from his job as a realtor due to hearing loss. Moreover, there was competent medical evidence attesting to the fact that it would be difficult for the Veteran to maintain employment as a realtor due to his hearing loss and difficulty communicating. Notwithstanding, however, the Director noted the Veteran's skills and abilities and stated that impairment in a chosen occupation does not translate into an obvious or exceptional disability picture that renders utilization of the regular rating criteria as impractical; thus requiring the assignment of an extra-schedular evaluation. The Board also observes that at the time of the April 2008 review by the Director, the numerical values noted for puretone threshold averages were similar to what they are during the periods currently under consideration, and speech discrimination scores at the time of the April 2008 review were significantly worse than they have been shown to be at all times during the periods now under consideration. Thus, as demonstrated by the reduction in the assigned disability rating for the Veteran's bilateral hearing loss, his hearing is shown to have improved during the periods now under consideration as compared to when the case was reviewed by the Director in 2008. Also, VA audiology treatment records during the relevant periods under consideration show that the Veteran consistently reported good aided gain with his hearing aids and reported satisfactory sound quality. B. Major Depressive Disorder With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the aforementioned available schedular evaluations for service-connected major depressive disorder are inadequate. A comparison of the level of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedule as previously mentioned for major depressive disorder shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran's infrequent and episodic frustration and depression are specifically contemplated by the applicable diagnostic code (DC 9434). Additionally, even if the available schedular evaluations for the disabilities are inadequate (which they manifestly are not), the Veteran does not exhibit other related factors such as those provided by the regulations as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his major depressive disorder. Indeed, he does not even receive or require outpatient treatment or medication for the disorder. Similarly, there is no evidence that the disability interfered with his occupational functioning and he was retired due to hearing loss many years prior to his diagnosis with major depressive disorder. Despite being unemployed by an employer, the Veteran has indicated that he is self employed doing handyman and yard work. Medical examiners who have reviewed the record and have examined and evaluated the Veteran have repeatedly opined that there is no resulting occupational impairment resulting from his major depressive disorder or if there is, it is only transient in nature and mild in degree and productive of only a decrease in efficiency. Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture. There is nothing in the record to indicate that this service-connected major depressive disorder causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). ORDER Entitlement to disability ratings greater than 50 percent prior to January 1, 2011, and greater than 30 percent from January 1, 2011, to April 18, 2011, for bilateral hearing loss disability are denied. Entitlement to an initial rating greater than 10 percent for service-connected major depressive disorder is denied. REMAND With respect to the claim for a higher evaluation for a hearing loss disability since April 18, 2001, the Board notes that a recent VA audiology clinic note dated in September 2012 notes that the Veteran was seen for an updated hearing test and to see if there was a better set of hearing aids available for him to use. While the treatment note references an "audiogram in CPRS tools menu" and notes that audiometry showed stable thresholds compared to the April 2011 evaluation, a review of the Veteran's claims folder does not contain any audiological testing performed in September 2012. Because VA is on notice that there are records that may be applicable to the Veteran's claim for a higher evaluation for his hearing loss disability since April 19, 2011, that may be of use in deciding the claim, on Remand, the RO or AMC should make appropriate efforts to obtain a copy of the audiometric testing referred to in the September 2012 treatment note. 38 C.F.R. § 3.159 (c)(2) (2011); Bell v. Derwinski, 2 Vet. App. 611 (1992). The claim of entitlement to a TDIU is inextricably intertwined with the claim for a higher evaluation for the Veteran's hearing loss disability since April 18, 2011, and must be deferred pending readjudication of that claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following actions: 1. Obtain a copy of the VA audiogram referenced in the September 2012 audiology clinic note. All efforts to obtain this additional evidence, including positive and negative responses, must be documented in the claims folder. 2. Thereafter, readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B , 7112 (West Supp. 2011). ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs