Citation Nr: 1302883 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 99-12 053 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a compensable evaluation for depressive disorder prior to May 14, 2008, and disability ratings greater than 10 and 30 percent from May 14, 2008, and June 27, 2011, respectively. 2. Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Christopher Loiacono, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from August 1988 to January 1989 and from December 1990 to May 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2001 and March 2005 decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was last remanded to the RO in June 2012 for further development. Since that remand, in June 2012, the RO continued the noncompensable rating previously assigned for dysthymic disorder prior to May 14, 2008, assigned it a 10 percent rating from May 14, 2008, the date of a VA treatment record, and assigned it a 30 percent rating from June 27, 2011, the date of a VA psychiatric examination. The Veteran presented testimony at a Board hearing in January 2001, and a transcript of the hearing is associated with his claims folder. The Veterans Law Judge who conducted the hearing is no longer employed by the Board, and while the Veteran was offered a hearing before another Veterans Law Judge in March 2009, he declined the opportunity. FINDINGS OF FACT 1. From May 28, 1996, to October 9, 2001, the Veteran's dysthymic disorder produced occupational and social impairment due to mild or transient symptoms which decreased his work efficiency and ability to perform occupational tasks only during periods of significant stress. 2. From May 28, 1996 to October 9, 2001, the Veteran's dysthymic disorder did not produce occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, reduced reliability and productivity, deficiencies in most areas, and/or total occupational and social impairment. 3. From October 9, 2001, the Veteran's dysthymic disorder produces occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 4. From October 9, 2001, the Veteran's dysthymic disorder does not produce occupational and social impairment with reduced reliability and productivity, deficiencies in most areas, and/or total occupational and social impairment. 5. Service connection is in effect for diarrhea, 30 percent; headaches, 30 percent, depressive disorder, currently 30 percent; and nausea and dizziness, 10 percent. The combined rating is currently 70 percent. 6. The Veteran's service-connected disabilities do not combine to preclude him from all forms of substantially gainful employment, given his level of education and prior work experience. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating, but not higher, for dysthymic disorder from May 28, 1996, to October 9, 2001, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9433 (2012). 2. The criteria for a 30 percent rating, but not higher, for dysthymic disorder from October 9, 2001, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9433 (2012). 3. The criteria for a TDIU are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In this case, the appeals for TDIU and the ratings to be assigned for dysthymic disorder directly follow grants of service connection. The Court has held that, "once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Further notice as to downstream questions, such as the degree of disability, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). - VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; examined the Veteran for dysthymic disorder in 1997, 2001, and 2012; and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO complied with the Board's May 2011 remand by obtaining additional treatment records, examining the Veteran in July 2011, and readjudicating the claim. VA has fully complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. The Veteran is presumed to be seeking the highest rating, AB v. Brown, 6 Vet. App. 35 (1993), and so the dysthymic disorder issues are whether a compensable rating prior to May 14, 2008, a disability rating in excess of 10 percent from May 14, 2008, and a disability rating in excess of 30 percent from June 27, 2011 for dysthymic disorder are warranted. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). In Fenderson v. West, 12 Vet. App. 119 (1999), and in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation or an increased rating has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's dysthymic disorder is rated under 38 C.F.R. § 4.130's General Rating Formula for Mental Disorders, under which a noncompensable evaluation is warranted where a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent evaluation is warranted when there is 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; when the symptoms are controlled by continuous medication. A 30 percent evaluation is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and experiencing difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; 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 warranted where there is 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. See 38 C.F.R. § 4.130, Diagnostic Code 9433. The symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a) (2012). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 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 schoolwork). GAF scores ranging between 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 more 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, veteran 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, is neglectful of his family, and is unable to work). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. On VA examination in March 1997, the Veteran looked depressed but was fully alert and oriented. He was felt to have insomnia, probably due to anxiety and stress. An August 1997 letter from a fellow Gulf War Veteran indicates that he and the appellant had been great friends since returning from the Gulf War. On November 1997 VA neurology examination, the Veteran was not taking any medication except for aspirin for headaches. He was oriented times 4, his memory testing was intact, and his cognitive testing appeared intact. He was felt to have a constellation of symptoms that could be consistent with depression. On November 1997 VA psychiatric examination, there were reported problems with sleeping, concentration, and staying focused. He denied having any problems with depression, anxiety, or any other mental health problems. On examination, immediate and remote memory was intact and recent memory was slightly impaired. He was alert and oriented in all spheres, his speech was normal, and his thought process production was spontaneous. Content of thought was goal directed, logical, and relevant and contained no suicidal or homicidal ideation. There were no delusions, hallucinations, or feelings of unreality and his abstract thinking skills were intact. Concentration was intact and self reported mood was fair. The examiner evaluated his mood as cheerful and his range of affect as appropriate. The axis I diagnosis was no diagnosis. The Veteran's GAF was in the low 80s. On VA general medical examination on November 23, 1997, the Veteran complained that he usually gets depressed and anxious, and had fatigue and exhaustion from a lack of sleep. Other symptoms were quite generalized and vague and appeared to be more related possibly to depression and anxiety. The diagnosis was fatigue and exhaustion at times from lack of sleep, due to episodes of depression. In March 1998, the Veteran complained of sleep trouble, and Lorazepam was prescribed with 5 refills. In September 1998, he was on Lorazepam. Later that month, he indicated that he needed a sleeping pill about every other night. The Veteran was alert, oriented times 4, and cooperative on VA examinations in January and June 1999. In a June 1999 letter from Veteran, he indicated that he had many mental and physical health problems and that he could barely work due to them. In June 2000, he indicated that he was not working now because of his conditions. On October 9, 1991, VA psychiatric examination, the Veteran was not on psychiatric medication and he denied mania, tension, and anxiety. He reported that he withdrew from activities and that was why he lacked friendships and did not want to go to work. He denied psychotic symptoms and thought disturbance. He had had no mental health treatment. He was living with his parents but did not see his two brothers too often. He had been celibate for 10 years and was not comfortable pursuing relationships because he was concerned that his symptoms were contagious, and he was worried about having children for fear of some sort of birth defects. He was working part time, 10 hours per week, as a teacher's assistant, and reported that he could not work more than that because of fatigue. For leisure activities, he did not do much. He spent time at home and had a couple of friends whose company he enjoyed once in a while. On examination, his immediate and remote memories were intact. Recent memory evidenced no errors. He was alert and oriented in all spheres, and his speech was normal in rate and volume, with spontaneous thought production. His thoughts contained no homicidal or suicidal ideas, and he denied delusions, but admitted that he had difficulty trusting people. His abstract ability was intact and his concentration was adequate. His mood as evaluated by the examiner was depressed and discouraged, but his range of affect was broad. His judgment was intact and his insight was fair. The examiner deferred his diagnosis until after a neuropsychological evaluation and a psychological consultation. On November 2001 VA neuropsychological evaluation, the Veteran was alert, very pleasant, cooperative, and oriented in all spheres. He had logical and coherent thoughts and no evidence of a psychosis. Affect appeared stable but the Veteran voiced feelings of depression. He denied homicidal and suicidal ideation and his insight appeared fair. He complained of memory loss and word finding problems. His reasoning and judgment were functional. Attention and concentration abilities fell in the average to above average ranges. Language appeared functional with no evidence of word finding problems. A mood assessment placed the Veteran in moderate to severely depressed categories. He had endorsed sadness, pessimism, guilty feelings, self-dislike, self-criticalness, crying spells, loss of interest, worthlessness, and loss of energy. He also reported irritability, reduced appetite, concentration difficulty, tiredness, and reduced sexual libido. He was felt to be moderately to severely depressed and displayed cognitive impairments in delayed memory, problem solving, and visual perception. On November 27, 2001, VA psychological evaluation, the Veteran's MMPI-II profile was not considered valid. Another test revealed some somatic concerns accompanying depressive symptoms. With cautious interpretation, testing suggested depression accompanied by confused thinking and somatization. The diagnosis was depressive disorder and the Veteran's GAF was 60/60. The November 2001 addendum to the October 9, 2001 VA psychiatric examination report indicates that the examiner felt that he had an atypical depression. On VA treatment in November 2004, to establish initial VA treatment locally, the Veteran did not report being on any psychiatric medications. He reported being depressed or sad much of the time the last year. It was felt that depression was driving somatic complaints. An August 2005 VA health care provider prescribed amitriptyline. The Veteran had taken it before thorough a private source, and tolerated it, with good results. On VA evaluation in May 4, 2006, the Veteran was prescribed amitriptyline on a tapering course. On September 18, 2006, the Veteran's amitriptyline was to be "titrated up." On November 18, 2006, the Veteran's amitriptyline was renewed and increased. In January 2007, the Veteran was taking amitriptyline daily as directed. On May 25, 2007, the Veteran's depression screen was positive but he had no delirium, marked psychotic symptoms, severe depression, suicidal ideation, or potential for violence. His amitriptyline was discontinued. The Veteran was started on trazodone for sleep disturbances. On VA evaluation on May 14, 2008, the Veteran reportedly had depression which was not currently well-controlled, but he denied homicidal or suicidal ideation. He had a tremendous amount of somatic complaints and the evaluator thought that a lot of them were from his depression not being under adequate control. He required the maximum dose of Trazodone at bedtime to help him with his sleep disturbances. He desired a different antidepressant so Celexa was prescribed. He had not had mental health counseling to date. In May 2009, his depression was now well-controlled with trazodone for sleep and citalopram daily. VA prescription records indicated that the Veteran was prescribed 90 days worth of medication for depression in July 2008 and again in May 2009. On June 2011 VA psychiatric examination, the Veteran stated that he had never been married, had no children, did not get along with people, had not dated for a long time, was not too happy with himself, had a short temper, and did not go out a whole lot. He had been living with his mother for the past 8 years, and she had been pushing him to get treatment. He got agitated easily and they argued frequently. He would yell and she would act like she was afraid of him and lock her bedroom door to escape his yelling, saying he was like a monster. He indicated that he had a couple friends from a long time ago that he talked with about every 6 months. He felt lonely and isolated. He was very socially isolated and lacked close relationships except for his mother. He used to camp, ski, and hike, but not anymore. His current psychosocial functioning was limited. He reported having a depressed mood and that "it would not be such a bad thing if he did not wake up in the morning." He reported a decreased ability to enjoy things, sometimes feeling hopeless, and guilt about killing people in the war. He was on antidepressants and sleep medication. He stated that his depressed mood occurred most of the time, most days, and was moderate to severe. He had no suicidal ideation in the past year, and no homicidal ideation. He reported his motivation was low, and memory and concentration were impaired, with forgetfulness. On examination, the Veteran was casually dressed, and had unremarkable psychomotor activity and speech. He was cooperative but his affect was constricted. He could not do serial 7s but could spell a word forward and backwards. His orientation was intact to person, place, and time, and his thought process and content were unremarkable. He had no delusions, understood the outcome of behavior, and was of average intelligence. He had no inappropriate behavior but had difficulty interpreting proverbs. He had no obsessive or ritualistic behavior, panic attacks, or homicidal or suicidal thoughts. His impulse control was fair and he had had no violence. He was able to maintain his own minimum personal hygiene. He had moderate impairment with household chores, grooming, shopping, and bathing, but none to slight traveling impairment. His recent and remote memory were moderately impaired but his immediate memory was normal. He was not currently employed. He reported that he would rather work alone. The diagnosis was dysthymic disorder. His GAF was 55. The examiner indicated that there was not total occupational and social impairment due to mental disorder signs and symptoms, but that they did result in deficiencies in thinking, family relationship, work, mood, or school. He had walked out on jobs in the past, despite needing income. He appeared to have poor self esteem. He had few friends and did not keep in close contact. Based on the evidence, the Board concludes that the Veteran's 10 percent rating for dysthymic disorder should be effective from his May 28, 1996, the date of claim. On VA examination in November 1997, he apparently had fatigue and exhaustion at times due to a lack of sleep due to his depression. He indicated in November 1997 that he had quit a job after 9 months as a truck driver for a company in part due to being too tired, and there is March 1997 letter of resignation from him to that company indicating that he was resigning due to medical reasons and illnesses, although psychiatric impairment was not mentioned specifically. It is reasonable to conclude that his depression had been causing mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks when there were periods of significant stress since he filed his claim. The November 1997 report of a GAF can be seen as supportive and the contemporaneous reports from 1997 were of an appearance of depression, a fair mood, insomnia, and fatigue and exhaustion from lack of sleep due to depression. The Board also finds that a 30 percent rating is warranted for dysthymia from October 9, 2001. The Veteran had a GAF of 60 on VA evaluation in November 2001, and the examiner who rendered it considered the October 9, 2001 VA examination report's background information and mental status and behavioral observations in doing so. A GAF of 60 is a sign of moderate symptoms or moderate difficulty in social or occupational functioning. The report of the Veteran having moderate depression in November 2001 is found to be further proof of increased symptomatology. That leaves the questions of whether a rating greater 10 percent can be assigned from the May 28, 1996 date of claim to October 9, 2001, and whether a rating greater than 30 percent should be assigned from or at any time after October 9, 2001. The Board concludes that no higher rating than 10 percent should be assigned for dysthymia prior to October 9, 2001. The Veteran was found to be alert and oriented times 4 and his cognitive testing and immediate and remote memory were intact on examinations in November 1997. No panic attacks or suspiciousness were reported. There are no indications that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms. The Board further concludes that no higher rating than 30 percent should be assigned for dysthymia from October 9, 2001, onward. Severe depression, the most severe part of the continuum reported by the neuropsychological evaluator in November 2001, is not shown, as the psychiatrist who examined the Veteran at that time found fairly normal findings, and the psychologist who examined him just after neuropsychological evaluation found his GAF to be 60, consistent with moderate symptoms, based on the contents of the VA psychiatric examination, the MMPI, and another test. Those reports, therefore, are more probative than the neuropsychological evaluator's report, which was actually of moderate to severe depression. Also, occupational and social impairment with reduced reliability and productivity due to symptoms is not shown at any point during the time frame on appeal. The Veteran has not had symptoms such as a flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week, or difficulty in understanding complex commands since then. Moreover, there is also no persuasive evidence that disturbances of motivation and mood, any memory impairment, and any occupational and social impairment have resulted in reduced reliability and productivity. As late as the June 2012 VA psychiatric examination, the Veteran had been able to live with his mother for 8 years without any violence, communicated with old friends every 6 months, was casually dressed and cooperative with unremarkable speech and psychomotor activity, had unremarkable thought processes and content, had good judgment and no delusions, had no obsessive or ritualistic behavior or homicidal or suicidal thoughts, had no episodes of violence, had never received mental health counseling or been hospitalized, and did not have the symptoms suggested for a 50 percent rating, a 70 percent rating based on reduced reliability and productivity, or a 100 percent evaluation based on total social and occupational impairment. Furthermore, his GAF was 55, signifying no more than moderate symptoms. He had reported not having been able to hold a job for 5-10 years, but gave much more factual information in June 2010 showing that he had worked considerably, for 40 hours per week doing construction during the warm seasons in Alaska in 2007, 2008, 2009, and 2010, at times grossing $6000 to 7,000 per month. He had had evidence of decreased memory and concentration on screening, but there was also an indication in 1997 of decreased memory, with other testing at about the same time showing a normal memory and concentration. Accordingly, the Board finds that the screening report has little probative value, and that a rating higher than 30 percent is not warranted at any point during the time frame on appeal. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). The Board stresses to the Veteran that it does not doubt that his dysthymic disorder results in impairment. However, the Veteran's impairment during the rating period is reflected accurately by the ratings assigned in this decision. The Board is bound to apply the regulatory criteria. Should his dysthymic disorder increase in severity in the future, the Veteran may file a new claim for an increased rating. Extraschedular In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran, as reported above, fit squarely within the criteria found into the rating formula used for the relevant Diagnostic Code for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. Consistent with Fenderson v. West, 12 Vet. App. 119 (1999), and Hart v. Mansfield, 21 Vet. App. 505 (2007), "staged" ratings are warranted here based on the facts found during the appeal period. The preponderance of the evidence is against higher ratings than those assigned herein and there is no further doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). TDIU The Veteran contends, in essence, that he is unable to secure and maintain substantially gainful employment, and that therefore, a TDIU is warranted. Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the claimant's service-connected disabilities is less than 100 percent, and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities sufficient to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident will be considered one disability. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran's service-connected disabilities, as evaluated under the VA Rating Schedule, consist of diarrhea due to undiagnosed illness, rated 30 percent; headaches due to undiagnosed illness, 30 percent; depressive disorder associated with nausea and dizziness due to undiagnosed illness, 30 percent; and nausea and dizziness due to undiagnosed illness, 10 percent. The combined rating is currently 70 percent. The Veteran has 2 years of college education and work experience at a grocery store, in security, in telemarketing, in global positioning, as an assistant for a mortgage company, as an assistant in public schools, as a driver and truck driver, and in construction. In September 2000, he indicated that he had worked as a helper/assistant 20 hours per week maximum, from November 1999 to May 2000, grossing as much as $1000 per month. He indicated in February 2004 that his job history has not been secure or substantially gainful. He had struggled in every job he had, and there had been gaps between jobs due to his illness. Currently, he was still missing a lot of work due to being ill, and his job was aware of his medical conditions and had been understanding. In June 2010, the Veteran indicated that he was working currently and that he had worked for 5 construction companies since August 2006, for 40 hours per week in Alaska, doing construction and highest-grossing between $5000 and $7000 per month during the warm season. He had had an administrative position for a borough in Alaska for 5 or 6 months, from December 2004 to May 2005, grossing up to $1900 per month. According to a June 2011 letter from a former employer, the Veteran was let go from a construction job in Alaska one month into the season, with the owner saying he was not a hard worker, "did not work well with others," and was not a team player. Evidence reported in the dysthymia section above has been considered. However, the Veteran has an employment record which shows that he has been capable of obtaining and retaining substantially gainful employment throughout the rating period, including when his overall service-connected condition has been at its worst. His employment from 2006 to 2010 was in fact quite gainful. Moreover, there is no medical evidence of record indicating that the Veteran is unemployable due to his service-connected disabilities. The preponderance of the evidence indicates that the Veteran is not unemployable by reason of his service-connected disabilities. While there has been some interference with employment during the rating period, the ratings which have been in effect during such time recognize a significant amount of occupational impairment due to service-connected disabilities. In light of the above, a TDIU is not warranted. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER A 10 percent, but not higher, rating for dysthymic disorder is granted from May 28, 1996, subject to the governing regulations applicable to the payment of monetary benefits. A 30 percent, but not higher, rating for dysthymic disorder is granted from October 9, 2001, subject to the governing regulations applicable to the payment of monetary benefits. Entitlement to TDIU is denied. ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs