Citation Nr: 1308926 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 08-31 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for a left hip disorder. 2. Entitlement to an initial evaluation in excess of 10 percent for a right hip disorder. 3. Entitlement to an initial evaluation in excess of 50 percent prior to April 25, 2007, and in excess of 70 percent thereafter for a depressive disorder. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1989 to September 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This rating decision granted service connection for the bilateral hip disabilities and assigned a 10 percent evaluation for each hip. The August 2005 rating decision also granted service connection for a depressive disorder and assigned a 30 percent evaluation, effective February 22, 205. The Veteran testified at a Board hearing at the RO in Houston, Texas in February 2010. This transcript has been associated with the file. During the pendency of the appeal, in an August 2006 rating decision, the RO assigned an increased evaluation of 50 percent effective February 22, 2005 for the Veteran's depressive disorder. In a May 2008 rating decision the Veteran's depressive disorder was again increased to 70 percent, effective April 25, 2007. With respect to increased ratings, the United States Court of Appeals for Veterans Claims (Court) has held that on a claim for an original or increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is allowed. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The case was brought before the Board in November 2010 at which time the Veteran's bilateral hip claims were remanded for further development. Again in February 2012 all the claims were before the Board and were remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of her appeal, to include obtaining treatment records, associating records from the Social Security Administration (SSA) with the claims file, and affording the Veteran a VA psychiatric examination. In February and August 2011 the Veteran was notified that she could send in any additional evidence to help substantiate her claim, including evidence of treatment outside the VA Medical Centers. The Veteran did not indicate that there were any additional outstanding treatment records. The Veteran's records from the SSA were obtained and associated with the claims file. She was afforded a VA examination in August 2011 for her depressive disorder claim. Therefore, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Board previously referred two issues to the RO, but it does not appear any action has been taken on them. See November 2010 and February 2012 Board remands. The issues of entitlement to service connection for sinusitis and entitlement to an earlier effective date for the award of entitlement to a total disability rating due to individual unemployability have never been adjudicated by the RO, and therefore, are REFERRED to the RO for proper adjudication. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Throughout the appeal, the Veteran's bilateral hip disabilities have been manifested by subjective complaints of pain and objective evidence of limitation of motion. 2. As of February 22, 2005 the Veteran's depressive disorder has been manifested by sleep disturbances, depression, anxiety, suicidal and homicidal ideations, and the inability to establish and maintain effective relationships. CONCLUSIONS OF LAW 1. The criteria for initial ratings in excess of 10 percent for bilateral hip disabilities have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5252 (2012). 2. As of February 22, 2005 the criteria for an evaluation of 70 percent, but no higher, have been met for a depressive disorder. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in March 2005 and March 2006. Therefore, the Board concludes that the duty to notify has been satisfied. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Goodwin v. Peake, 22 Vet. App. 128, 136 (2008) (holding that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been proven and thus section 5103(a) notice is no longer required because the purpose that the notice is intended to serve has been fulfilled). While the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim in the August 2005 rating decision, the Board finds that even if the above letters failed to provide the Veteran with adequate 38 U.S.C.A. § 5103(a) notice, this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decision, statement of the case, and supplemental statement of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Furthermore, the Board finds that there can be no prejudice to the Veteran due to a lack of adequate 38 U.S.C.A. § 5103(a) notice where, as here, none has been specifically alleged. Id. The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and she was afforded a meaningful opportunity to participate effectively in the processing of her claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. The Veteran has not indicated that there are any additional outstanding records to be obtained. As such, the Board finds the duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded multiple VA medical examination for her bilateral hip and depressive disorder claims. These opinions were rendered by medical professionals following a thorough examination and interview of the appellant and review of the claims file. The examiners obtained an accurate history and listened to the appellant's assertions. The examiners laid a factual foundation and reasoned basis for the conclusions that were reached. Therefore, the Board finds that the examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Increased Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation 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. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Bilateral Hip Disabilities The Veteran has been awarded an initial separate 10 percent evaluation for each of her hip disabilities. She contends that an increased evaluation is warranted. Generally, the effective date for an increased rating is the date of receipt of the claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). If, however, the claim is filed within one year of the date that the evidence shows that an increase in disability has occurred, the effective date is the earliest date as of which an increase is factually ascertainable (not necessarily the date of receipt of the evidence). 38 C.F.R. § 3.157 (b) (1); 3.400(o)(2). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The Veteran's bilateral hip disabilities have been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5252, pertaining to limitation of motion of the leg. Under this Diagnostic Code a 10 percent rating is warranted for limitation of flexion of the thigh to 45 degrees. A 20 percent rating is warranted for limitation of flexion of the thigh to 30 degrees. A 30 percent rating is warranted for limitation of flexion of the thigh to 20 degrees. Finally, a 40 percent rating is warranted for limitation of flexion of the thigh to 10 degrees. The Veteran was afforded a VA examination in April 2005. She complained of bilateral hip pain, which was worse in the mornings or with prolonged sitting. She reported taking pain medication and using a heating pad to help with the pain. On range of motion testing she had equal measurements bilaterally. She had flexion to 100 degrees, extension to 20 degrees, abduction to 10 degrees, adduction (presumably misidentified again as abduction) to 30 degrees, and external and internal rotation to 30 degrees. All measurements were limited by pain. April 2005 x-rays were unremarkable bilaterally with no evidence of mission fracture or dislocation seen. The Veteran was afforded a VA examination in October 2006. She reported that any kind of exertion or physical exercise caused pain in her hips, sometimes even without exercise. She generally took over the counter pain medication, but also had prescription medication for when the pain worsened. She stated that she used a heating pad almost daily to help with the pain. On range of motion testing she had equal measurements bilaterally. She had flexion to 125 degrees, extension to 30 degrees, adduction to 25 degrees, abduction to 45 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees. The examiner noted pain on abduction and internal rotation testing. In a January 2008 VA treatment record the Veteran reported bilateral hip pain while sitting, standing, walking, or lying in bed. The Veteran was afforded a VA examination in March 2008. She reported bilateral hip pain which increased with walking and bending over. She noted some popping in her hips when she went from a sitting position to a standing position. She reported taking prescription pain medication for her headaches which helped with her hip pain as well. On range of motion testing the Veteran's measurements were equal bilaterally. She had flexion to 105 degrees, extension to 20 degrees, internal and external rotation to 45 degrees, abduction to 40 degrees, and adduction to 20 degrees. The examiner noted increased pain with flexion and adduction testing. The examiner reviewed March 2008 x-rays and indicated they were unremarkable. At the Veteran's board hearing in February 2010 the Veteran testified that she did not believe her hip disabilities had been adequately evaluated. She testified that at her most recent VA examination her legs were manipulated on range of motion testing and she was unable to drive home due to additional pain from testing. She also testified she missed one day a month of work due to her hip disabilities. However, she also testified that she would rely on volunteer or part time employees to help with her work. Most recently, the Veteran was afforded a VA examination in August 2011 for her bilateral hip disabilities. She reported that she experienced hip pain more frequently in the mornings or after sitting for a prolonged period of time. She denied using hip braces, crutches, canes, or walkers. She estimated her pain to be 8/10 in severity when she had a flare up. She reported taking an antiinflammatory prescription, using a heating pad and getting massages once a month to help with the pain. On range of motion testing the Veteran had right hip flexion to 70 degrees, with pain, and extension to 18 degrees, with pain. Adduction was to 26 degrees, abduction to 36 degrees, external rotation to 32 degrees, and internal rotation to 20 degrees. On repetitive motion the Veteran had flexion to 65 degrees, extension to 16 degrees, adduction to 30 degrees, abduction to 20 degrees, external rotation to 45 degrees, and internal rotation to 28 degrees. On range of motion testing for her left hip the Veteran had flexion to 65 degrees, with pain, extension to 20 degrees, adduction to 25 degrees, abduction to 36 degrees, external rotation to 28 degrees, and internal rotation to 32 degrees. On repetitive motion the Veteran had no loss of motion for flexion, extension limited to 18 degrees, abduction and adduction to 24 degrees, with no loss of range of motion for external or internal rotation. X-rays of the bilateral hips from September 2011 showed no significant osseous or articular findings. In reviewing the claims file, there is no evidence that an evaluation in excess of 10 percent is warranted for the Veteran's bilateral hip disabilities. In this regard, under the current Diagnostic Code rating criteria, a higher evaluation is warranted only where flexion is limited to 30 degrees or less, which has not been shown for either hip. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in her favor. The Board concludes that the objective medical evidence and the Veteran's statements regarding her symptomatology show disability that more nearly approximates that which warrants the assignment of a 10 percent rating for each hip disability. See 38 C.F.R. § 4.7. The Board has also considered alternative Diagnostic Codes to determine if a higher rating is warranted. Diagnostic Code 5250 pertains to ankylosis of the hip, which has not been diagnosed and therefore, is not for application. Diagnostic Code 5251 relates to limitation of extension of the thigh to 5 degrees or less, but the Veteran's range of motion testing has consistently shown extension to greater than 5 degrees. Diagnostic Code 5253 pertains to limitation of motion with abduction or adduction. A 20 percent evaluation is warranted where abduction is limited to 10 degrees or less. As discussed above, the range of motion testing does not support this finding. Diagnostic Codes 5254 and 5255 pertain to flail joint of the hip and impairment of the femur, to include fracture residuals and malunion, respectively. Neither of these conditions has been noted on the multiple VA examination reports and as such, they are not applicable to the Veteran's claims. The Board notes that in evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca, supra. Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. At her April 2005 VA examination the Veteran denied lack of endurance, fatigability, giving way, or weakness. On repetitive testing at her October 2006 VA examination there was no increased pain, weakness, or fatigue. At the Veteran's March 2008 VA examination the examiner noted no fatigue or incoordination. At her August 2011 VA examination the Veteran had no incoordination, no fatigability, and no weakness. Her functional limitation was pain, which was accounted for in the range of motion testing. As such, there is no evidence which would warrant an even higher evaluation for functional impairment. The Board acknowledges the Veteran's contentions that her bilateral hip disabilities warrant an increased evaluation. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of her service-connected disabilities. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2). In light of the above, the Board finds that the Veteran is not entitled to an increased evaluation for her bilateral hip disabilities at any point during the appeal period. The Board has considered whether the benefit of the doubt rule applies to the present appeal. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). However, a preponderance of the evidence is against a higher evaluation; thus, this rule does not apply and the claims for increased evaluations must be denied. Depressive Disorder As noted above, the Veteran was assigned a 50 percent evaluation for her depressive disorder from February 22, 2005 to April 24, 2007. A 70 percent evaluation was assigned effective April 25, 2007. For the reasons discussed below, the Board finds that a 70 percent evaluation, but no higher, is warranted as of February 22, 2005. Under 38 C.F.R. § 4.130, Diagnostic Code 9434, a 70 percent disability evaluation is warranted when 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; 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 work like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. As evidenced by use of the phrase "such symptoms as," followed by a list of examples, this list of symptoms in the rating criteria is meant to be mere examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002). However, if the evidence shows the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the Diagnostic Code, the appropriate equivalent rating will be assigned. Mauerhan, at 443. The Federal Circuit Court has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). The mental status findings in the claims file indicate the Veteran's judgment and insight were generally appropriate. At her March 2008 VA examination the Veteran's though process was logical, coherent, and goal directed. The Veteran's thought process was essentially normal at a December 2008 private psychiatric examination. See also November 2010 VA treatment record. At her April 2012 VA examination the Veteran's thoughts were logical and goal directed. She was oriented to place and date, and her judgment was good. There has been no evidence throughout the appeal of gross impairment in the Veteran's thought process or communication which could warrant a higher rating. The April 2012 examiner did note the Veteran had some mild memory loss, such as forgetting names, directions, or recent events. Neither the Veteran nor a VA or private treatment provider has indicated that the Veteran has memory loss so severe she cannot remember the names of her close relatives, her own occupation, or her own name, which could warrant a higher rating. At her May 2005 VA examination the Veteran reported having problems with people at work and blowing up at her supervisor. In a May 2007 private mental health evaluation the Veteran reported problems at work including anger and outbursts. See also August 2005 VA treatment record. She also reported have anger problems at her March 2008 VA examination. In an August 2010 VA treatment record the Veteran reported that she had multiple "episodes" outside work where the police had been called. The Veteran's outbursts and inability to control her anger have been considered in the 70 percent evaluation. The Veteran has repeatedly been seen for depression treatment and prescribed medication to help with her symptoms. See e.g., January 2006 VA treatment record and April 2007 VA treatment records for hospitalization. In a January 2008 private treatment record the Veteran reported feeling stressed and depressed. See also August 2008 private treatment record diagnosing severe depression. At her March 2008 VA examination the Veteran reported depression due to her migraines, and possibly her other service-connected disabilities. At a December 2008 private psychiatric examination the Veteran reported feeling depressed for days on end and not being able to get of bed. The Board observes that the 70 percent evaluation takes into account that the Veteran's depression affects her ability to function independently, appropriately, and effectively. In a February 2007 private treatment record the Veteran reported that she slept well for one night, but only due to the fact that she took medication for another condition which then helped her sleep. In an April 2007 VA treatment record the Veteran reported sleep disturbances which only allowed her to sleep 4 hours a night. See also June 2007 private mental health evaluation and March 2008 VA examination report noting sleep disturbances. In an April 2007 VA treatment record the Veteran reported feeling anxious and needing to pace at home. In an August 2008 private treatment record she was diagnosed with severe anxiety. At her April 2012 VA examination she reported having feelings of near continuous panic or depression which affected her ability to function independently. The Veteran reported suicidal ideation at an August 2005 VA medical appointment. In a May 2006 VA treatment record the Veteran reported suicidal ideation, but stated that she did not have any plans and had not attempted suicide. In an April 2007 VA treatment records it is noted the Veteran was hospitalized for suicidal ideations and depression. She reported that although she did not have a gun, she could get one. In a May 2007 private mental health evaluation the Veteran reported suicidal ideations and suicidal plans, although she said she did not have a gun at home. The Veteran also reported homicidal ideations with a plan, not directed at any specific person. Although at her March 2008 VA examination she denied any homicidal ideation. The Veteran also reported passive suicidal ideation at her December 2008 private psychiatric examination. See also March 2010 VA treatment note. In an August 2010 VA treatment record the Veteran was admitted for suicidal prevention and her children were placed in protective services. In a November 2010 VA treatment record the Veteran reported no suicidal or homicidal ideations. The Veteran reported current passive suicidal ideation at her April 2012 VA examination, with a plan, but no intent. The Veteran has consistently reported suicidal ideations over the appeal period, but there has been no evidence of intent, plan, or attempted suicide. The Veteran has also reported intermittent homicidal ideation. These symptoms were taken into account with the current 70 percent evaluation. The Veteran has not shown that she is in persistent danger of hurting herself or others, which could warrant a higher evaluation. With regard to social impairment, in an August 2005 VA treatment record the Veteran reported having good relationships with her siblings and parents, but she did not report any other friends or relationships. At a June 2007 private mental health evaluation the Veteran reported that she did not date or have friends nearby. She also stated that she did not participate in any activities for personal pleasure. The Veteran has reported getting along with her ex-husband, but when not working or taking care of her children she was socially isolated at home. See March 2008 VA examination report. At the Veteran's April 2012 VA examination the examiner stated she was unable to establish and maintain effective relationships. She was also noted to have difficulty adapting to stressful circumstances. She reported that she rarely left the house because it would cause her to panic. She was not found to have total social and occupational impairment, but did have some impairment in this area. It appears from the record that the Veteran is unable to establish and maintain effective relationships outside of those with her children. This has been factored in to her current rating. The Board observes that a higher rating is not warranted because the competent evidence of record does not demonstrate that the Veteran's symptomatology more closely approximates a 100 percent evaluation. The Veteran denied hallucinations and delusions in a July 2006 VA treatment record. The Veteran again denied hallucinations and delusions in an April 2007 VA treatment record. See also December 2008 private psychiatric examination and April 2012 VA examination report. If apparent, these symptoms could be evidence that a higher rating is warranted. At her March 2008 VA examination the Veteran was well groomed. At her December 2008 private psychiatric examination the Veteran was clean and well groomed with no hygiene problems. The April 2012 VA examiner did note the Veteran had occasional or intermittent neglect of personal appearance or hygiene, a symptom that can warrant a higher evaluation. However, the Board takes into account all the evidence of record when determining the appropriate rating, instead of relying on a single symptom. The Board also acknowledges that the Veteran suffers from symptoms not covered under Diagnostic Code 9434. For instance, the Veteran has reported feelings of hopelessness, helplessness, and worthlessness, and agitation and restlessness. See e.g., May 2005 and April 2012 VA examination reports. However, all of the Veteran's symptoms have been taken into account when determining the most appropriate evaluation. Also of record are the Veteran's GAF scores. GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders contemplates that the GAF scale will be used to gauge a person's level of functioning at the time of the evaluation (i.e., the current period) because ratings of current functioning will generally reflect the need for treatment or care. The Board notes that while GAF scores are probative of the Veteran's level of impairment, they are not to be viewed outside the context of the entire record and they will not be relied upon as the sole basis for an increased rating. At her May 2005 VA examination she was assigned a GAF score of 50. At her June 2007 private mental health examination the Veteran was assigned a GAF score of 43. At a private psychiatric examination in December 2008 the Veteran was assigned a GAF score of 40. See also December 2008 statement from Veteran's private counselor. In a November 2010 mental health consultation the Veteran's GAF score was 65. At her April 2012 VA examination the Veteran was assigned a GAF score of 50. A GAF score of 41-50 is assigned for 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. GAF scores ranging between 51 and 60 indicate some 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). Taking into account the Veteran's depressive disorder symptoms, including social impairment, suicidal ideation, depression, and anger the Veteran has been assigned GAF scores corresponding with moderate and severe symptoms. The Board observes that the Veteran's depressive disorder has been rated as 70 percent disabling as of February 22, 2005. As such, the moderate and severe GAF scores are appropriate for this time period. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in her favor. The Board concludes that the objective medical evidence and the Veteran's statements regarding her symptomatology show disability that warrants the assignment of a 70 percent rating as of February 22, 2005. See 38 C.F.R. § 4.7. In addition to the medical evidence, the Board has considered the Veteran's, statements in support of her claim. The Veteran, as a layman, is competent to report on that as to which she has personal knowledge, such as sleeping difficulties, anger, social impairment, suicidal ideation, and irritability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Since her allegations of these particular symptoms appear to be uncontradicted, even by medical findings of record, the Board also finds them to be credible and, thus, probative. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Rucker v. Brown, 10 Vet. App. 67 (1997) (indicating his competency to make these proclamations must be distinguished from the weight and credibility of his lay testimony, which are factual determinations going to the ultimate probative value of this evidence). On the other hand, as a layman, without the appropriate medical training and expertise, the Veteran is not further competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of her depressive disorder in relation to the applicable rating criteria. An examiner, including the VA compensation examiners, takes into consideration the Veteran's subjective complaints, her social and occupational history, and the results of the objective mental status evaluation in determining the overall severity of her depressive disorder. This determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence. The Federal Circuit Court has recognized the Board's 'authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence.' Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Overall, the Board concludes that the evidence discussed above supports no more than a 70 percent rating for the Veteran's depressive disorder as of February 22, 2005. In reaching its decision, the Board considered the benefit-of-the-doubt rule. However, the preponderance of the evidence is against a higher evaluation and therefore, it does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Extra-Schedular Considerations The Board's findings above are based on a schedular evaluation. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Schedular ratings are based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. 38 C.F.R. § 4.15. To afford justice in exceptional situations, however, an extraschedular rating may also be provided. 38 C.F.R. § 3.321(b). The Board may determine, in the first instance, that a veteran has not presented evidence warranting referral for extraschedular consideration, provided that it articulates the reasons or bases for that determination. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). This determination follows a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). 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, the level of severity and symptomatology of a veteran's service-connected disability must be compared with the established criteria found in the rating schedule for that disability. Id. If the rating criteria reasonably describe a veteran's disability level and symptomatology, the disability picture is contemplated by the rating schedule. Therefore, the assigned schedular evaluation is adequate and no referral is required. Id. If the schedular evaluation does not contemplate the level of disability and symptomatology, and is found inadequate, the second step of the inquiry requires the Board to determine whether the exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-16. If analysis of the first two steps shows that the rating schedule is inadequate to evaluate the disability picture and that picture shows the related factors discussed above, the final step requires that the case be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the disability picture requires the assignment of an extraschedular rating. Id. Here, the Board has considered, under the Thun three-step analysis, whether referral for extraschedular consideration is appropriate, but finds that the schedular ratings adequately contemplate the Veteran's bilateral hip disabilities and depressive disorder. That is, her hip disabilities are primarily productive of limitation of motion and pain, manifestations that are contemplated in the rating criteria. Her depressive disorder is manifested primarily by social impairment, irritability, and depression, all of which were contemplated in the 70 percent rating. The Board has taken into account the Veteran's contentions that her service-connected disabilities cause marked interference with employment. It appears the Veteran was employed from February 2004 to November 2008 with the same organization. The Board notes that the Veteran applied for a leave of absence from work due to headaches in July 2008. In November 2008 she resigned due to health reasons. In an April 2006 VA treatment record the Veteran reported that her depression interfered with her job. At the Veteran's October 2006 VA examination she reported that her bilateral hip disabilities had no real affect on her employment. At her discharge from her April 2007 hospitalization, the examiner stated that the Veteran was employable. However, in a July 2008 statement the Veteran reported missing 8-12 days a month due to her service-connected disabilities. In a November 2008 statement from the Veteran's private counselor, she stated the Veteran was unemployable in most, if not all circumstances, due to her psychological and physical service-connected disorders. The Court has recognized that 'the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) . . . and for purposes of a total disability due to individual unemployability claim under 38 C.F.R. § 4.16.' See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). The former requires marked interference with employment; whereas the latter requires evidence of unemployability. Id.; see also Thun, supra. ('[E]xtraschedular consideration [under § 3.321] may be warranted for disabilities that present a loss of earning capacity that is less severe than one where the Veteran is totally unemployable.'). One must also bear in mind, however, that, according to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See, too, Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired). In this case, the evidence does not reflect an exceptional disability picture. Accordingly, referral for extraschedular consideration is not in order. See 38 C.F.R. § 3.321(b); Thun, 22 Vet. App. at 115. ORDER Entitlement to an initial rating in excess of 10 percent for a left hip disability is denied. Entitlement to an initial rating in excess of 10 percent for a right hip disability is denied. Entitlement to an evaluation of 70 percent, but no higher, is granted as of February 22, 2005, for a depressive disorder, subject to subject to the laws and regulations governing monetary awards. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs