Citation Nr: 1300672 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 08-33 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent prior to August 3, 2010, and an evaluation in excess of 50 percent from August 3, 2010, for major depressive disorder. 2. Entitlement to an initial disability evaluation in excess of 10 percent for bilateral pes planus with plantar fasciitis and anterior compartment fascial release. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran had active service from January 2003 to January 2007. These were originally before the Board of Veterans' Appeals (Board) on appeal from various rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) located in San Juan, Puerto Rico. In a December 2011 decision, the Board (in pertinent part) granted a 30 percent evaluation for major depressive disorder prior to August 3, 2010; denied an evaluation in excess of 50 percent from August 3, 2010 for major depressive disorder; and denied an initial disability evaluation in excess of 10 percent for bilateral pes planus with plantar fasciitis and anterior compartment fascial release. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In June 2012, the Court granted a Joint Motion for Partial Remand of the parties (Joint Motion). In so doing, the Court vacated the part of the Board's decision that denied a rating in excess of 30 percent prior to August 3, 2010 for major depressive disorder, a rating in excess of 50 percent from August 3, 2010 for major depressive disorder, and an initial rating in excess of 10 percent for bilateral pes planus with plantar fasciitis and anterior compartment fascial release and remanded the case to the Board for action consistent with the Joint Motion. In November 2012, the Veteran and his attorney submitted additional evidence (a private medical opinion) that was not reviewed by the RO. However, they waived RO consideration of the additional evidence, permitting the Board to consider such records in the first instance. See 38 C.F.R. § 20.1304(c) (2012). Hence, the additional evidence is being considered. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issue of entitlement to a TDIU is addressed in the REMAND that follows the order section of this decision. FINDINGS OF FACT 1. For the period prior to August 3, 2010, the Veteran's major depressive disorder caused no more than 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). 2. For the period beginning August 3, 2010, the Veteran's major depressive disorder has caused no more than 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. 3. Throughout the period of the appeal, the Veteran's bilateral pes planus with plantar fasciitis and anterior compartment fascial release has been manifested by symptoms such as pain, weakness, fatigability and mild pronation that resulted in no more than moderate disability in each foot. There has been no objective evidence of marked deformity, pain on manipulation or evidence of characteristic callosities. CONCLUSIONS OF LAW 1. For the initial rating period prior to August 3, 2010, the criteria for an evaluation in excess of 30 percent for major depressive disorder have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9433 (2012). 2. For the period beginning August 3, 2010, the criteria for an evaluation in excess of 50 percent for major depressive disorder have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9433. 3. The criteria for an initial evaluation in excess of 10 percent for bilateral pes planus with plantar fasciitis and anterior compartment fascial release have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5276, 5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can practically be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate in an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Pes Planus with Plantar Fasciitis and Anterior Compartment Fascial Release In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The provisions of Diagnostic Code 5276 pertain to pes planus. Under that code, a 10 percent rating is warranted for moderate bilateral or unilateral pes planus manifested by weight-bearing line over or medial to great toe, inward bowing of the tendo Achillis, and pain on manipulation and use of feet; a 20 percent rating is warranted for severe unilateral pes planus with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities; a 30 percent rating is warranted for severe bilateral pes planus with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities; a 30 percent evaluation is also provided for pronounced unilateral pes planus; manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances; and a 50 percent rating is warranted for pronounced bilateral pes planus; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Under Diagnostic Code 5284 (for other foot injuries), a 10 percent rating is warranted for moderate foot injuries, a 20 percent rating is warranted for moderately severe foot injuries, and a 30 percent rating is warranted for severe foot injuries. 38 C.F.R. § 4.71a, Diagnostic Code 5284. (Other diagnostic codes providing for a rating in excess of 10 percent for foot disability-5278, 5283-require pathology not shown here, i.e., claw foot, or malunion or nonunion of tarsal or metatarsal bones. 38 C.F.R. § 4.71a.) It is the responsibility of the rating specialist to interpret reports of examination in the 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 present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." Butts v Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In the case at hand, the Veteran underwent bilateral fascial release of the anterior compartment in service and that he had also been diagnosed with bilateral plantar fasciitis. At the time of the Veteran's November 2006 pre-discharge/VA examination, physical examination revealed tenderness on the plantar surfaces near the calcaneus. It was the examiner's impression that the Veteran had plantar fasciitis and anterior compartment syndrome treated with anterior compartment release with some improvement in symptoms. The Veteran was afforded a VA examination in March 2009. The Veteran reported that he continued to have pain on the joints of the feet with difficulty standing with pain of the lower extremities. He also noted that the pain would start for no reason. He indicated that the pain had become progressively worse over time. Physical examination of the left and right feet revealed no swelling, heat, redness, or stiffness. The Veteran did have pain with walking and standing and when at rest. Fatigability, weakness, and lack of endurance were also present with walking and standing, with each of these being present in the plantar aspect and occasionally in the ankle. There were no flare-ups of foot joint disease. The Veteran was able to stand three to eight hours, with only short rest periods. He was also able to walk one to three miles. With regard to the left foot, there was no evidence of swelling, instability, weakness, or abnormal weight bearing. There was evidence of painful motion and tenderness. The pain was moderate and objectively located in the plantar fascia. With regard to Achilles alignment, nonweight bearing revealed inward bowing and normal weight bearing. It was not correctible with manipulation and there was no pain or spasm on manipulation. There was forefoot malalignment which was correctible with manipulation. The manipulation was not painful. Midfoot malalignment was also present which was correctible with manipulation, with the manipulation not being painful. Mild pronation was found. Arch was present on nonweight bearing but not on weight bearing. There was no pain on manipulation. The left heel valgus was at 10 degrees and was not correctible with manipulation. The location of the weight bearing line was over the great toe. With regard to the right foot, there was no evidence of swelling, instability, weakness, or abnormal weight bearing. There was evidence of painful motion and tenderness. The pain was moderate and objectively located in the plantar fascia. With regard to Achilles alignment, nonweight bearing revealed inward bowing and normal weight bearing. It was not correctible with manipulation and there was no pain or spasm on manipulation. There was forefoot malalignment which was correctible with manipulation. The manipulation was not painful. Midfoot malalignment was also present which was correctible with manipulation, with the manipulation not being painful. Mild pronation was present. Arch was present on nonweight bearing but not on weight bearing. There was no pain on manipulation. The right heel valgus was at 10 degrees and was not correctible with manipulation. The location of the weight bearing line was over the great toe. There was no muscle atrophy of the foot. The Veteran had a normal gait with no hallux valgus. Range of motion for the ankles revealed dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. The examiner rendered a diagnosis of bilateral pes planus with plantar fasciitis and anterior compartment fascial release. As to activities of daily living, the disability had a severe impact on playing sports and exercise and a moderate impact on recreation with mild impact on traveling, chores, and shopping, providing factual evidence against this claim. The Veteran was afforded an additional VA examination in April 2010. The Veteran reported having right and left foot pain that had become progressively worse. With regard to the left and right feet, there was no evidence of swelling, heat, redness, stiffness, weakness, or abnormal weight bearing. The Veteran did have pain with walking and standing and when at rest. Fatigability, weakness, and lack of endurance were also present with walking and standing, with each of these being present at the medial arch and at the plantar heel. There were flare-ups of foot joint disease which occurred weekly or more often, that lasted less than one day. Precipitating factors included standing or driving for long periods of time. Alleviating factors were elevating his feet and sleeping. The Veteran had decreased ambulation during the flare-up periods. He was able to stand more than one but less than three hours and he was able to walk more than a quarter mile but less than one mile. With regard to the left foot, there was no evidence of painful motion, swelling, instability, weakness, or abnormal weight bearing. There was evidence of tenderness. The tenderness was located in the medial arch and the plantar heel. With regard to Achilles alignment, nonweight bearing revealed inward bowing and normal weight bearing. It was not correctible with manipulation and there was no pain or spasm on manipulation. There was no forefoot or midfoot malalignment. Mild pronation was present. Arch was present on nonweight bearing but not on weight bearing. There was no pain on manipulation. The left heel valgus was at 10 degrees and was not correctible with manipulation. The location of the weight bearing line was over the great toe. There was no muscle atrophy of the foot. With regard to the right foot, there was no evidence of painful motion, swelling, instability, weakness, or abnormal weight bearing. There was evidence of tenderness. The tenderness was located in the medial arch and the plantar heel. With regard to Achilles alignment, nonweight bearing was normal and weight bearing revealed inward bowing. This was correctible with manipulation and there was no pain or spasm on manipulation. There was no forefoot or midfoot malalignment. Mild pronation was present. Arch was present on nonweight bearing but not on weight bearing. There was no pain on manipulation. The right heel valgus was at 10 degrees and was correctible with manipulation. The location of the weight bearing line was over the great toe. There was no muscle atrophy of the foot. X-ray studies of the feet revealed small spurs at the insertions of the Achilles tendons, bilaterally, and a small one at the right plantar aponeurosis. There were no fractures, dislocations, or bony lesions. There were small calcaneal spurs. The examiner rendered a diagnosis of bilateral plantar fasciitis, pes planus, and anterior compartment syndrome status post surgical release. With regard to activities of daily living, there were moderate impacts on chores, shopping, exercise, recreation, traveling, and driving. The foot disability prevented participation in sports. The examiner indicated that the Veteran was unemployed and that the Veteran stated that he was "limited by feet and mind." An October 2012 psychodiagnostic assessment report received from the Veteran's private psychologist notes his complaints of foot pain and an inability to climb roofs and stairs as well as difficulty squatting. After reviewing the above evidence, the Board finds that the Veteran's bilateral pes planus with plantar fasciitis and anterior compartment fascial release more closely approximates a 10 percent disability rating under Diagnostic Code 5276. There is no evidence indicating that the Veteran had severe bilateral flatfoot, with objective evidence of marked deformity, pain on manipulation and use accentuated, or characteristic callosities. Although the Veteran has been noted to have mild pronation, pain, weakness and fatigability, the overall symptomatology more closely approximates that for a 10 percent disability evaluation. His gait has been normal and he does not use assistive devices to ambulate. As such, a 30 percent disability rating for bilateral pes planus is not warranted. Without considering the Veteran's pain, the current evaluation could not be justified, let alone a higher evaluation. Moreover, a schedular rating in excess of 10 percent is not warranted under any other Diagnostic Code. Specifically, a rating in excess of 10 percent under Diagnostic Code 5284 has not been shown. The medical evidence of record essentially shows evidence of pain, mild pronation, weakness and fatigability in both feet. There is persuasive evidence of pain on use, specifically when standing and walking. X-ray studies revealed calcaneal spurs but no fractures, dislocations, or bony lesions. There has been no stiffness, edema, heat, instability, deformity, redness, or muscle atrophy. Again, the Veteran's gait has been normal with no assistive devices used. These findings more nearly approximate moderate disability in each foot under Diagnostic Code 5284. The Veteran's disability for each foot would have to more nearly approximate a moderately severe foot injury in order to warrant a 20 percent rating. For all the foregoing reasons, the Veteran's claim for an initial scheduler rating in excess of 10 percent for pes planus with plantar fasciitis and anterior compartment fascial release must be denied. See Fenderson, supra. Major Depressive Disorder The rating for the Veteran's major depressive disorder has been assigned pursuant to Diagnostic Code 9433. 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. A 10 percent disability evaluation for major depressive disorder should be assigned for occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or, symptoms controlled by medication. A 30 percent evaluation is assigned for major depressive disorder causing 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). A 50 percent evaluation is to be assigned 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is assigned 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent evaluation is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9433. The Global Assessment of Function (GAF) is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." American Psychiatric Association : DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM), 32 (4th ed.) (1994) (DSM IV); 38 C.F.R. §§ 4.125 , 4.130. 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. Scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). 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). A GAF score of between 31 and 40 contemplates some impairment in reality testing or communication (e.g., speech 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). See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). In conjunction with his initial request for service connection, the Veteran was afforded a pre-discharge/VA examination in December 2006. At the time of the examination, the Veteran reported having problems with irritability and moodiness. He noted getting along fairly well with his family and siblings. The Veteran lived in a townhouse that he shared with two roommates. He stated that he did not use any illegal drugs and only drank on occasion. He denied any legal problems. Mental status examination revealed he was casually attired and he appeared neat and well-groomed. He was alert and oriented times three. The Veteran was in no form of acute physical distress. He was verbal and logical and was noted to be quite pleasant and cooperative. There was no evidence of psychosis, paranoia, or delusions. His mood was mildly anxious and depressed and his affect was constricted. He denied any suicidal intent or ideation but had a sense of frustration and helplessness. Cognitive functions were intact and insight and judgment were adequate. The examiner rendered a diagnosis of chronic dysthymic disorder with anxiety symptoms and assigned a GAF score of 65. At the time of a May 2007 VA outpatient visit, the Veteran was seen requesting treatment for his psychiatric problems. He was found to be in no acute distress. He was noted to be relevant, coherent, logical, and to have a anxious mood. The Veteran had a constrictive affect but there were no active hallucinations, delusions, suicidal or homicidal ideations. Cognitive functions were well preserved. The Veteran was oriented to time, place, and person. The examiner indicated that the Veteran had major depression in an acute exacerbation. He assigned a GAF score of 50-55. At the time of a July 2007 VA outpatient visit, the Veteran reported having sadness, mood swings, despair, poor tolerance, loss of interest in dally activities, poor coping skills, feelings of helplessness, and poor sleep pattern, including intermittent insomnia and nightmares. He denied perceptual disturbances and any suicidal or homicidal tendencies. Mental status examination revealed that the Veteran was calm and appropriately dressed and groomed. He had spontaneous vocal speech. His mood was sad and anxious and his affect was restricted. Mood and affect were noted to be appropriate. He denied any suicidal or homicidal thoughts. He also denied any racing thoughts. Delusional thoughts were not elicited and the Veteran was noted to be coherent, relevant, and logical. He did not have any loose associations, flight of ideas, phobias, panic attacks, obsessions or compulsions, or disorders of perception. He denied any auditory or visual hallucinations. He was oriented times three and his memory and concentration were preserved while his insight and judgment were fair. The examiner diagnosed the Veteran as having recurrent episodes of major depressive disorder and assigned a GAF score of 60. A March 2009 VA psychiatric examination report notes that the Veteran was anxious with a depressed mood. He also reported having bizarre thinking, crying spells, anhedonia, frustration, isolation, poor impulse control, magical thinking, religious delusions, irritability, and lack of leisure pursuits. The symptoms were noted to be moderate in nature and of long-standing duration. Mental status examination revealed he was clean and casually dressed. Psychomotor activity was unremarkable. Speech was spontaneous and his affect was normal. The Veteran's mood was depressed and he was able to do serial 7's and spell a word backward and forward. Orientation was intact to person, time, and place. Thought process was unremarkable. He did have a preoccupation with one or two topics. The Veteran also had bizarre religious delusions but these were not constant. As to judgment, he could understand the outcome of behavior. Intelligence was average. As to insight, the Veteran understood that he had a problem. There was no sleep impairment and the Veteran did not have any hallucinations. There was no inappropriate behavior and the Veteran interpreted proverbs appropriately. There was no obsessive/ritualistic behavior, and the Veteran did not have suicidal or homicidal thoughts or panic attacks. He had fair impulse control but was impulsive and easily startled. There were no episodes of violence. He was able to maintain minimum hygiene. There were also no problems with activities of daily living. Recent, remote, and immediate memory was normal. The Veteran was noted to be able to handle money and pay bills. He was also able to handle his financial affairs. The Veteran was reported to have been unemployed with a duration of less than one year. He was studying to become an electronic technician. The examiner rendered a diagnosis of moderate major depressive disorder and assigned a GAF score of 60. The examiner stated that the Veteran did not have total occupational and social impairment. He further indicated that the disorder did not result in deficiencies in the areas of judgment, thinking, family relations, work, mood, or school. The examiner did note that the disorder caused reduced reliability and productivity. The examiner observed that the Veteran was studying but had been unable to readjust to social life. At the time of a February 2010 outpatient visit, the Veteran vented his frustration with regard to loneliness. He noted that his defensiveness and grouchy temperament were unhealthy. He indicated his interest in finding a job but stated that his physical impairment and poor disposition were barriers to it. He reported that he had improved his relationship with his mother and step father. Mental status examination revealed the Veteran had adequate hygiene and that he was appropriately dressed. His behavior was normal. He had a cooperative attitude toward the examiner. His speech was spontaneous. The Veteran was alert and attentive. He was oriented in all spheres. His mood was moderately anxious and irritable but his affect was stable and appropriate. Thought processes were logical and coherent. The Veteran had feelings of worthlessness and guilt but there was no abnormality of perception. The Veteran had poor recent and immediate memory and insight and judgment were noted to be fair. There were no suicidal or homicidal ideations. At the time of a March 2010 outpatient visit, the Veteran reported that he was not taking his Paxil due to side effects. He noted that he was hearing voices calling him. He reported losing a close friend in a car accident 10 days earlier. Mental status examination revealed he was well nourished and clean. His behavior was cooperative and his speech was clear. His mood was depressed but his affect was appropriate. Thought process was relevant, logical, and coherent. There was no suicidal or homicidal ideation. There were also no delusions or hallucinations. The Veteran was oriented in all spheres. Insight and judgment were good. The examiner assigned a GAF score of 70. During an April 2010 VA psychiatric examination the Veteran reported that he was living with his mother and stepfather. He had completed his electronics degree and had started to study welding. He indicated that he kept studying despite wanting to give up on many occasions. He stated that this was a way of making him feel capable and not useless like he usually felt about himself. The Veteran noted not having a close relationship with anyone, but sometimes saw friends from his childhood and adolescence. He had not established any new relationships. He reported that he distrusted women based upon past experiences. The Veteran reported that experiences he had in the military were still fresh in his mind. He noted that even after psychiatric interventions everything would come back. He indicated that it would also come back in his dreams. The Veteran stated that he did not take anything from anyone and would answer back to anyone who tried to impose on him. He noted that he felt like harming someone but held back from acting on these thoughts. There had been no actual incidents of violent behavior. The Veteran reported feeling "down." He was avoidant of places and situations where he might get in trouble and preferred having only a few friends. The Veteran noted feelings of worthlessness and helplessness. He had low self-esteem, and was frequently anhedonic and uninterested. He reported episodes of road rage that he described as pretty bad. He basically stayed home and watched movies or played computer games. He described himself as being distrustful of everyone and always on the defensive. He was apprehensive and openly distrustful of the intentions of others. The symptoms were reported to be on a daily basis. The severity was variable with ups and downs. Mental status examination revealed the Veteran was clean and casually dressed. Psychomotor activity was tense. Speech was spontaneous, soft/whispered, and clear. The Veteran was fairly cooperative considering he was initially rather apprehensive, tense and very guarded. Affect was constricted and mood was depressed. The Veteran was intact to person, time, and place. Thought process revealed a paucity of ideas. The Veteran was preoccupied with one or two topics. He had no delusions. With regard to judgment, he understood the outcome of behavior. Intelligence was average and the Veteran partially understood that he had a problem. There was no sleep impairment and no hallucinations. The Veteran did not have inappropriate behavior and there was no obsessive/ritualistic behavior. He also did not have any panic attacks or suicidal thoughts; however, he did have homicidal thoughts. The Veteran also had poor impulse control but there were no episodes of violence. The Veteran noted having had irritability and poor control in the past but now was mostly avoidant of potentially problematic situations. He could maintain minimum hygiene. Recent, remote, and immediate memory was normal. The Veteran was noted to be capable of handling his financial affairs. The examiner observed that the Veteran was a student. The examiner rendered a diagnosis of recurrent major depression and assigned a GAF score of 55. She indicated that the Veteran's recurrent major depression did not result in total social and occupational impairment. She did report that the major depression resulted in deficiencies in judgment, thinking, family relations, work, and mood. At the time of an August 3, 2010 VA outpatient visit, the Veteran reported that he was feeling very stressed and not functioning well. He was very frustrated and anxious. He wanted to be hospitalized. He noted that people were not to be trusted and stated that he recently had an episode of anger where he hit a wall. He also had been close to a fight in the street. Mental status examination revealed that the Veteran was well developed and well nourished. He was also noted to be clean. Behavior was cooperative and speech was clear. The Veteran's mood was depressed but his affect was appropriate. Thought process was relevant, logical, and coherent. There were no suicidal or homicidal ideas. There were also no delusions or hallucinations. The Veteran was alert and oriented in all spheres. He had preserved memory for all events but his insight and judgment were poor. The examiner rendered a diagnosis of major depression, impulse control disorder, and assigned a GAF score of 50. At the time of an August 27, 2010, visit, the Veteran reported feeling irritable. He noted having been in the day program for three weeks and stated that it helped. He denied having side effects to medication and admitted to having better energy. Mental status examination revealed he was well groomed, cooperative but not fidgety, and that he had good eye contact. Speech was normal for volume, tone, and rate. His mood was irritable and his affect was restricted. He denied suicidal/homicidal ideation. He also denied auditory/visual hallucinations and having paranoia. Cognition was intact and the Veteran was oriented times three. Insight was limited and judgment was fair. The examiner rendered a diagnosis of major depressive disorder and impulse control disorder, rule out bipolar disorder. At the time of an October 2010 treatment visit, the Veteran stated he felt better and was less depressed. He noted still experiencing racing thoughts and seeing shadows and hearing his name being called. He further reported feeling that there were "unwanted visitors" at his house. He denied suicidal/homicidal ideations. Mental status examination revealed he was well groomed and he appeared his stated age. He had good eye contact and his speech had a normal rate, tone, and rhythm. His mood was anxious and his affect was restricted. Thought process was linear and the Veteran denied suicidal/homicidal ideations, perceptual disturbances, and tactile and olfactory hallucinations. He did report auditory and visual hallucinations. The Veteran also had paranoid ideation. He was oriented to time, person, and place. Insight and judgment were poor. The examiner rendered a diagnosis of history of major depressive disorder and impulse control disorder, rule out bipolar disorder and assigned a GAF score of 60. An October 2012 psychodiagnostic assessment report received from the Veteran's private psychologist notes that the Veteran had successfully completed a welding course in 2011, although he was given extra time to complete the program requirements. The Veteran lived with his mother and step-father, and spent most of his time at home in his room. In February 2012, he traveled to Oklahoma to see a friend and inquire about a job. Personality profile revealed severe, recurrent major depression that was "significantly impacting" his interpersonal relationships, memory, concentration, attention, impulse control and judgment. The examiner indicated that the Veteran's mood was depressed most of the day, nearly every day. He had markedly diminished interest and pleasure in most activities, and isolated himself socially. The Veteran reported sleep problems, concentration problems and frequent anger. After interviewing the Veteran, conducting psychological testing and examining the claims file, the psychologist noted a diagnosis of severe recurrent major depressive disorder and a GAF score of 40 for the past year. She opined that the Veteran was not able to work since his separation from service in 2007. Evaluation in Excess of 30 Percent Prior to August 3, 2010 The Veteran's GAF scores for this period ranged from the 50's up to the mid 60's with generally declining scores over time. Scores ranging from 51 to 60 reflect moderate symptoms with many of the symptoms described in the criteria for the 30 percent rating, and are consistent with the moderate symptoms that the Veteran exhibited at the evaluation and examination. Although not dispositive of the evaluation issue, GAF scores 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). In this case as will be noted below, the Veteran simply does not demonstrate the majority of the actual symptoms identified in the rating schedule as characteristic of at least the next higher, 50 percent, rating. The GAF scores, the fact that the Veteran could not both work and attend school at the same time, and that he had relationships only with his immediate family and some childhood friends, indicate that his symptomatology more closely approximates that necessary for a 30 percent disability for this time period. However, the Veteran's symptoms do not meet the criteria for a higher evaluation. 38 C.F.R. § 4.7. The evidence of record did not show the Veteran to have occupational and social impairment with reduced reliability and productivity due to symptoms such as (but not limited to): 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; or disturbances of motivation and mood. On numerous occasions during the period at issue, the Veteran was noted to be appropriately dressed. His speech was found to be relevant, coherent and logical, and there were no findings of impaired speech at any time during this time period. There were also no findings of his being unable to understand complex commands. The Veteran's depression, low self esteem and isolative behavior did not prevent him from successfully completing studies to qualify as an electronic technician. There was also no display of gross impairment of memory or cognitive functioning during this time frame. Moreover, there were no findings of immediate, short, or long term memory impairment and the Veteran was found to be alert and oriented on examinations and outpatient visits during this time frame. As to his family relationship, the Board observes that the Veteran initially reported having a good relationship with his family and then a good relationship with his mother and stepfather. At one point he associated with friends from his youth. The Veteran has also denied having any panic or anxiety attacks. In determining that the criteria for a 50 percent rating (or higher) for the Veteran's major depressive disorder 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 the psychiatric disability. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Based upon the above, an schedular evaluation in excess of 30 percent is not warranted for the above time frame. Evaluation in Excess of 50 Percent from August 3, 2010 With regard to the criteria necessary for a 70 percent evaluation, the next higher evaluation, the Board notes that there have been no findings, for example, of obsessional rituals which interfere with routine activities. As to the Veteran's speech, the Board notes that it was found to be coherent with a normal rate and tone on numerous occasions. The Veteran has also not reported having, for example, near continuous panic attacks nor have there been any objective findings of such. As to spatial disorientation, the Board notes that the Veteran was found to be oriented to time, place, and person, at each examination and outpatient visit, providing highly probative evidence against this claim. There have also been no findings of neglect of personal hygiene or appearance. The Veteran was found to be groomed and dressed at the time of each VA examination and his hygiene has never been reported as less than fair. As to relationships, the Board notes that while the Veteran has indicated that he was distrustful of relationships and had few friends, he still maintains a relationship with his mother and stepfather. His private psychologist indicated that he recently traveled a distance to see a friend in Oklahoma. The evidence shows that the Veteran is not working; however, he completed his electronics degree and a welding degree, and has remained in school in order to pursue other avenues of work, which only provide evidence against the claim that he can not work. The VA examiners have found that the Veteran's major depressive disorder would not prevent him from working. Although his private psychologist indicated that he has been unable to work since 2007, he has, in fact, worked for periods during this time, and completed two technical courses successfully. The best competent opinions are to the effect that the service connected psychiatric disability does not by itself prevent employment, and there is no evidence that the psychiatric disability would cause impairment in employment beyond that contemplated by the current 50 percent evaluation. Moreover, the GAF scores of 50 to 60 that have been assigned more closely reflect those of moderate to serious symptoms or moderate to serious difficulty in social, occupational, or school functioning, providing highly probative evidence against this claim. Although the October 2012 private medical opinion notes a GAF score of 40 for the past year, the medical evidence presented does not support this score, as the Veteran was not shown to have lost touch with reality during this period (the Veteran's own statements undermine this finding, undermining the probative value of this finding), and even successfully completed a welding course (albeit with time extensions provided to accommodate his disability, which would be expected with a Veteran with the current disability evaluation). As such, the symptoms do not meet the requirements for an evaluation in excess of 50 percent. In this regard, it is important for the Veteran to understand that if he were not have some problems associated with his condition, there would be no basis for a compensable evaluation, let alone a 50 evaluation. The credible problems the Veteran has cited support, at best, the current evaluation, not a higher evaluation. In fact, there is significant evidence that does not support the current evaluation. For example, treatment records general cite to a "moderate" problem, with generally good function. In determining that the criteria for a 70 percent (or higher) 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 the psychiatric disability. See Mauerhan, supra. Based upon the above, an schedular evaluation in excess of 50 percent is not warranted for the above time frame. Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1). (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step--a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The symptoms of Veteran's major depressive disorder and bilateral pes planus with plantar fasciitis and anterior compartment fascial release manifestations are contemplated by the rating schedule. Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology of his psychiatric and foot disabilities. Evaluations in excess of those assigned are provided for certain manifestations of the service-connected disabilities at issue, but the medical evidence reflects that those manifestations are not present in this case. As such, no further inquiry is required and the criteria for assignment of extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996). Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As it relates to the issue of higher initial evaluations, the courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, the Board notes that the Veteran was provided with notice as to the disability rating and effective date elements of the claim in a November 2006 letter. The Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations for the issues decided herein. The record in this case includes service treatment records, VA treatment records, VA examination reports, private medical evidence and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the claimant. The Board is also not aware of any such evidence. The Veteran was afforded VA examinations in November/December 2006, March 2009, and April 2010 regarding his major depressive disorder and bilateral foot disorder. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examinations to be sufficient. Thus, the Board finds that further examinations are not necessary regarding these issues. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating these claims. ORDER Entitlement to an evaluation in excess of 30 percent prior to August 3, 2010, and an evaluation in excess of 50 percent from August 3, 2010, for major depressive disorder is denied. An initial evaluation in excess of 10 percent for bilateral pes planus with plantar fasciitis and anterior compartment fascial release is denied. REMAND In a November 2012 statement, the Veteran's attorney essentially stated that the Veteran was unable to work because of his service-connected major depressive disorder and bilateral pes planus. He also noted that a claim for TDIU is essentially a component of the claims for higher ratings for these disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's attorney also submitted a completed VA Form 21-8940 and a statement from the Veteran's private psychologist in support of the TDIU claim. The Board finds that there is no medical opinion of record that is adequate for adjudication purposes. In this regard, the Board notes that the October 2012 opinion form the Veteran's private psychologist does not address previous opinions from VA examiners that the Veteran is not unemployable. The Court has held that medical examinations must be thorough and take into account the records of prior examinations and treatment. Green v. Derwinski, 1 Vet. App. 121, 124 (1991).) On remand, the Veteran should be afforded a VA examination to determine whether his service-connected disabilities alone render him unemployable. Thereafter, the RO should adjudicate this matter in the first instance, to avoid any prejudice to the Veteran. See e.g. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Accordingly, the case is REMANDED for the following action: 1. The RO should send to the Veteran and his attorney a letter requesting that the Veteran furnish any additional information and/or evidence pertinent to the claim for TDIU. The RO's letter should specifically explain how to establish entitlement to TDIU. The RO should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. Thereafter, the RO should arrange for the Veteran to undergo a VA examination by an appropriate physician or physicians to determine the impact the Veteran's service-connected disabilities have on his employability. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician(s) should render an opinion, based upon review of the record and consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's service-connected disabilities, either individually or in concert, render him unable to obtain or retain substantially gainful employment consistent with his education and employment background. The physician(s) should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 3. The RO should also undertake any other development it determines to be warranted. 4. Then, the RO should readjudicate the Veteran's claim (to include consideration of 38 C.F.R. §§ 3.321(b) and 4.16(b)). If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his attorney should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded. See 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs