Citation Nr: 1309489 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 98-01 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a disability rating higher than 30 percent for major depression, recurrent (previously evaluated as dysthymia, previously evaluated as major depression with anxiety features) from April 12, 2002 to September 27, 2006. 2. Entitlement to a disability rating higher than 50 percent for major depression, recurrent (previously evaluated as dysthymia, previously evaluated as major depression with anxiety features) from September 27, 2006 to July 11, 2008. 3. Entitlement to a disability rating higher than 70 percent for major depression, recurrent (previously evaluated as dysthymia, previously evaluated as major depression with anxiety features) from July 11, 2008 to the present. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from March 1964 to March 1966. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a April 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico which continued a 10 percent disability rating for major depression with anxiety features (previously evaluated as dysthymia). In an August 2002 rating decision, the RO granted an increased evaluation of 30 percent for the Veteran's major depression, effective April 12, 2002 (the date of a VA examination). In August 2003 the Board remanded the issues of entitlement to higher disability ratings for the Veteran's major depression both prior to and beginning April 12, 2002. Subsequently, in April 2008 the Board increased the Veteran's disability rating for his major depression from 10 percent to 30 percent disabling for the period of time of November 13, 1996 (the date of the Veteran's claim currently on appeal) to April 12, 2002 and denied a disability rating higher than 30 percent for that period of time. The Board remanded the issue concerning a higher disability rating for major depression beginning April 12, 2002. In a September 2008 rating decision, the RO granted an increased evaluation of 50 percent for the Veteran's major depression, effective September 27, 2006 (the date of a VA treatment record). In May 2009 and November 2011 the Board remanded the claim two more times for additional development. In a July 2012 rating decision, the RO granted an increased evaluation of 70 percent for the Veteran's major depression, effective July 11, 2008 (the date of a VA examination). Despite the 50 and 70 percent increased evaluations awarded in September 2008 and July 2012, the Veteran has not been awarded the highest possible evaluation for his major depression. As a result, he is presumed to be seeking the maximum possible evaluation. As such, the issues noted above remain on appeal, as the Veteran has not indicated satisfaction with the assigned ratings. A.B. v. Brown, 6 Vet. App. 35 (1993). The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). In April 2002 correspondence the Veteran raised the issue of entitlement to benefits under 38 U.S.C.A. § 1805 for a child claimed to have been born with spina bifida. This issue has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals VA treatment records dated from April 2010 through October 2011. Significantly, these records were reviewed by the RO in a supplemental statement of the case dated in July 2012. The remainder of the documents in the Virtual VA paperless claims file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDING OF FACT For the entire time period currently on appeal the Veteran's service-connected psychiatric disorder, currently characterized as major depression, has been manifested by no more than some occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking and mood due to symptoms of depressed mood, chronic sleep impairment, mild memory loss, flattened affect, disturbances in motivation and mood, and occasional suicidal ideation. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent for major depression, for the period of time from April 12, 2002 to the present, are met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 9433 (2012). 2. The criteria for disability rating greater than 70 percent for major depression, for the period of time beginning July 11, 2008, have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 9433 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS This appeal arises out of the Veteran's claim that his service-connected major depression is more disabling than currently evaluated from April 12, 2002 to September 27, 2006, from September 27, 2006 to July 11, 2008, and from July 11, 2008 to the present. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that effective November 7, 1996, VA revised the criteria for diagnosing and rating psychiatric disabilities. 61 Fed. Reg. 52695 (1996). As the Veteran filed his claim after the rating criteria was revised, only the new rating criteria is considered. The Veteran's service-connected psychiatric disorder is currently rated under Diagnostic Code (DC) 9433. 38 C.F.R. § 4.130, the rating criteria for dysthymic disorder. That code provides that dysthymic disorder should be rated under the general rating formula for mental disorders. Under that code, a 30 percent disability rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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); and the inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. Id. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Global Assessment of Functioning (GAF) scores are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 1995); 60 Fed. Reg. 43186 (1995) A GAF 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. Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A GAF of 41-50 is defined as serious symptoms (e.g., suicidal ideations, 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 of 51-60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational or school functioning (e.g., few friends, conflicts with peers or co- workers). A GAF of 61-70 is defined as some mild symptoms OR some difficulty in social, occupational, or school functioning. A GAF of 71-80 is defined as, if symptoms are present, they are transient and expectable reactions to psychosocial stressors. A GAF of 81-90 would indicate absent or minimal symptoms and a GAF of 91 to 100 would indicate superior functioning in a wide range of activities; no symptoms. Analysis Service treatment records show that the Veteran sustained second degree burns on the medial portion of his thigh/calf, bilaterally secondary to a plumbing accident in a latrine where steam backed up in the pipes to the toilet upon flushing it. By rating decision dated in July 1992 the RO granted service connection for burns, second degree, medial portion of thighs and calves bilaterally. In March 1994 the Veteran submitted a claim for service connection for a psychiatric disorder secondary to his service-connected burns. He indicated that he had been treated for psychiatric problems through VA since 1988. VA treatment records dated in November 1988 show a diagnosis of major depression and a September 1994 private treatment record shows impressions of major depressive disorder, recurrent severe as well as panic attack disorder. The Veteran was afforded a VA examination in December 1994. At that time the Veteran reported that he was working as a nursing assistant at the VA Hospital in San Juan, Puerto Rico. He also reported that he was living with his wife and four children. The examiner diagnosed the Veteran with dysthymia with anxiety features, moderate and assigned a GAF score of 75. In a February 1995 VA examination addendum opinion the examiner related the Veteran's psychiatric problems with his service-connected burns and by rating decision dated in March 1995 the RO granted service connection for a neuropsychiatric disorder, specifically dysthymia with anxiety features, moderate, assigning a 10 percent disability rating effective March 24, 1994, the date of the Veteran's claim. In November 1996 the Veteran submitted a claim for an increased rating for his service-connected psychiatric disorder. He was afforded a VA examination in January 1997 which noted a diagnosis of major depression with anxiety features and assigned a GAF score of 70. By rating decision dated in April 1997 the RO recharacterized the Veteran's service-connected dysthymia as major depression with anxiety features and continued the 10 percent disability rating previously assigned. Thereafter, the Veteran perfected an appeal of this decision. In connection with this appeal the Veteran was afforded another VA psychiatric examination in December 1999. At that time the Veteran reported that he was living with his wife and daughter and was receiving VA compensation, government retirement, and Social Security disability benefits. In April 2000 the Veteran submitted a claim for a total disability rating based on individual unemployability (TDIU). In this application the Veteran wrote that he had last worked in December 1997 and in subsequent correspondence the Veteran wrote that he quit his job due to his psychiatric problems and not his physical problems. A March 2000 private psychiatric examination report shows a continued impression of major depression, recurrent, severe, with psychotic features and a GAF score of 55-60. It appears that the Veteran was awarded Social Security disability benefits due to his major depression and status post left hip replacement effective October 1997. As above, in an August 2002 rating decision, the RO granted an increased evaluation of 30 percent for the Veteran's major depression, effective April 12, 2002 (the date of a VA examination). In August 2003 the Board remanded the issues of entitlement to higher disability ratings for the Veteran's major depression both prior to and beginning April 12, 2002. Subsequently, in April 2008 the Board increased the Veteran's disability rating for his major depression from 10 percent to 30 percent disabling for the period of time of November 13, 1996 (the date of the Veteran's claim currently on appeal) to April 12, 2002. The Board remanded the issue concerning a higher disability rating for major depression beginning April 12, 2002. In a September 2008 rating decision, the RO granted an increased evaluation of 50 percent for the Veteran's major depression, effective September 27, 2006 (the date of a VA treatment record). In May 2009 and November 2011 the Board remanded the claim two more times for additional development. In a July 2012 rating decision, the RO granted an increased evaluation of 70 percent for the Veteran's major depression, effective July 11, 2008 (the date of a VA examination). There are three periods of time at issue here: from April 12, 2002 to September 27, 2006, when the Veteran's psychiatric disorder was evaluated as 30 percent disabling; from September 27, 2006 to July 11, 2008, when the Veteran's psychiatric disorder was evaluated as 50 percent disabling; and from July 11, 2008 to the present when the Veteran's psychiatric disorder was evaluated as 70 percent disabling. The Board will consider the proper evaluation to be assigned for all three time periods, pursuant to the Court's holding in Fenderson. Evidence relevant to the level of severity of the Veteran's psychiatric disorder during these three periods of time includes VA psychiatric examination reports dated in April 2002, July 2008, and December 2011 as well as VA treatment records dated through October 2011. During the April 2002 VA psychiatric examination the Veteran reported that he remained unemployed since 1997 and lived with his wife and 19 year old daughter. He reported that his condition was worse every day. He complained of difficulty to walk due to pain in the right knee after left hip surgery in May 1997. He also complained of suffering from arthritis, that his fingers were deforming, and that he was diagnosed with carpal tunnel syndrome. He also received treatment with Viagra for sexual problems. He reported that he slept poorly and suffered from frequent awakening despite treatment. He reported that he slept separately from his wife. He occupied himself at home on whatever he could. He reported that he forgets many things and could do nothing. He complained of irritability and bad temper. He denied the use of alcohol, tobacco, or drugs. He also denied legal trouble. He reported that he was depressed due to all of his medical conditions and progressive deterioration. He reported that he did not drive nor did he even go to church as he used to. The examiner noted that the Veteran was clean and shaven, adequately dressed, and groomed. He was alert and oriented times three. His mood was depressed and his affect was constricted. His attention and concentration were good. His memory was fair and his speech was clear and coherent. He was not hallucinating and was not suicidal or homicidal. His insight and judgment were fair and he exhibited good impulse control. The examiner diagnosed dysthymia and assigned a GAF score of 50. In a March 2004 VA treatment record the Veteran reported that his son had died one month earlier and that he was feeling sad. A February 2005 VA "computerized problem list" noted diagnoses of schizophrenia and depressive disorder and an April 2005 VA "computerized problem list" noted diagnoses of schizophrenia, posttraumatic stress disorder (PTSD), and major depression. In a November 2005 VA treatment record the Veteran reported being depressed frequently. He also reported war related flash backs and nightmares. The examiner assigned a GAF score of 50 and wrote that it was his opinion that the Veteran was neither able to work nor get involved in gainful activities. A September 27, 2006 VA treatment record notes that the Veteran was having war related flashbacks and nightmares. He reported audiovisual hallucinations and indicated that he heard voices. The examiner wrote that it was his opinion that the Veteran was neither able to work nor get involved in gainful activities. During the July 2008 VA psychiatric examination the Veteran reported crazy nightmares causing him to wake up without breath two times per week. He indicated that he suffered from depression. Frequently, the Veteran had no appetite or energy to the point that he would not leave his bed. The Veteran reported that he still felt the death of his oldest son like it was a short time ago. His three other children were married so he lived alone with his wife. He believed that he would eventually represent a burden to his family and, at times, he had a very negative outlook as to his mental stability. He isolated when he felt depressed and was poorly tolerant with noises and people as well. He referred to a recent incident where he pressed charged against a neighbor who was making noises with a motorcycle that were intolerant for the Veteran. The Veteran reported that he felt like an inner voice was telling him to kill himself and at times he felt that he saw shadows. He reported that hearing news about soldiers returning from Iraq made him remember his own military experience and how badly Vietnam veterans were received. He did not report specific frequency for this symptom since this was variable and not reported as persistent or severe. The examiner wrote that the Veteran reported some of his symptoms with specific frequency and others not specifically, but he did relate they had been present for many years, had been persistent despite treatment and were severe, in his perception. On psychiatric examination the Veteran was clean and appropriately dressed. With regard to the psychomotor activity he was mildly restless at times. Speech was spontaneous, clear, and coherent. He was somewhat apprehensive and guarded. Affect was constricted and mood was depressed. Attention was intact and he was oriented to person, time, and place. With regard to thought process and content there was an overabundance of idea but with preoccupation with one or two topics. There were no delusions and he understood outcome of behavior. His intelligence was average and, with regard to insight, the Veteran understood that he had a problem. The Veteran did have a sleep impairment. There were auditory and visual hallucinations but they were not persistent. The Veteran did not exhibit inappropriate behavior and he interpreted proverbs appropriately. He did not have obsessive/ritualistic behavior and did not have panic attacks. There were no homicidal thoughts but there were suicidal thoughts. Specifically, the Veteran reported death wishes and a pessimistic outlook. He also reported some suicidal thoughts, but no plans or attempts ever. He had good impulse control and there were no episodes of violence. The Veteran had the ability to maintain minimum personal hygiene and there was no mental impairment with activities of daily living. Memory was normal. The examiner diagnosed the Veteran with major depression, recurrent and assigned a GAF score of 50. The examiner wrote that the Veteran had a chronic depressive condition, as diagnosed, and that this had been well documented in both private and Veteran would be unable to maintain a job in his field of work (he was a nursing assistant), which required not only physical effort of dealing with patients and other personnel, but also the tolerance and ability to relate adequately with the patients and their families, hospital personnel, his supervisors, and working under pressure, none of which the Veteran was able ot handle on account of his mental disorder. This, according to the examiner, represented severe impairment at the occupational level in basically any working environment. In a September 2010 VA treatment record it was noted that the Veteran was cooperative and spontaneous. His thought process was coherent, relevant, and logical. He was oriented in time, place, and person. His mood was sad and his affect was constricted. He denied both hallucinations and suicidal ideation. He complained of repetitive behaviors such as brushing his teeth five to seven times and washing his hands and legs several times each day with sanitizers. His judgment was fair and his insight superficial. A GAF score of 55 was assigned. Similar findings were noted in an April 2011 VA treatment record. In an August 2011 VA treatment record it was noted that the Veteran had illogical thought processes and that his judgment and insight were poor. A GAF score of 50 was assigned. During the December 2011 VA psychiatric examination the Veteran reported concentration difficulties and hearing voices described as "disparates." He described having some "manias" with cleanliness, irritability, sadness, crying spells, isolation, hypervigilance, fragmented sleep, variable, since "for a long period of time," moderate. The examiner noted that the Veteran was casually dressed with adequate hygiene, and maintained good eye contact during the interview. He was coherent but circumstantial. He looked restless at times and presented no delusions, no suicidal ideas or plans or homicidal ideas at the time of the examination. He was in full contact with reality. His affect was constricted and his mood depressed. He was oriented in person and place and partially in time. His judgment and insight were fair and his recent memory was moderately limited but otherwise intact. The examiner noted that the Veteran presented with the following symptoms: depressed mood, chronic sleep impairment, mild memory loss such as forgetting names, directions, or recent events, flattened affect, and disturbances in motivation and mood. The examiner diagnosed dysthymia disorder by history, obsessive compulsive disorder, R/O (rule out) schizoaffective disorder depressed type, R/O schizophrenia paranoid type, and cognitive disorder not otherwise specified. The examiner also assigned a GAF score of 50. After a careful review of the objective medical evidence, the Board finds that the evidence supports a grant of a 70 percent disability rating for the Veteran's psychiatric disorder for the entire length of the appeal. The evidence clearly shows the Veteran to be severely disabled as a result of his service-connected major depression. Since April 12, 2002 he has been shown to have occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking and mood due to symptoms including; 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); difficulty in adapting to stressful circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships. Although a 70 percent evaluation has been granted for major depression beginning July 11, 2008, the Board finds that the evidence does not show the symptomatology required for a 100 percent rating under the rating schedule. In other words, there is a lack of evidence of symptoms of total occupational and social impairment, such as gross impairment in thought processes or communication, persistent delusions or hallucinations, intermittent inability to perform activities of daily living, or memory loss of vital information. The Veteran's speech and thought process have not been a problem, he is well oriented, and there is no evidence of a problem with hygiene. While the Veteran retired early in December 1997 due, in part, to his depressive disorder, he is clearly able to perform all activities of daily living, can drive an automobile, and has not been shown to manifest any persistent danger of hurting himself or others. Also, the Veteran has maintained lasting relationships with his wife and four children. Consequently, the Board finds that the total disability picture warrants a 70 percent evaluation but no more. The Board finds that no higher evaluation can be assigned pursuant to any other potentially applicable diagnostic code. Because there are specific diagnostic codes to evaluate major depression, consideration of other diagnostic codes for evaluating the disability does not appear appropriate. See 38 C.F.R. § 4.20 (permitting evaluation, by analogy, where the rating schedule does not provide a specific diagnostic code to rate the disability). See Butts v. Brown, 5 Vet. App. 532 (1993). In deciding the Veteran's claim, the Board has considered the Court's determination in Hart and whether he is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. The Board does not find evidence that the Veteran's disability evaluation should be increased for any separate period based on the facts found during the appeal period. The evidence of record supports the conclusion that he is not entitled to an increased evaluation for separate periods and that he meets the criteria for a 70 percent disability for the entire length of the appeal. The Board has also considered his statements that his disability is worse than evaluated. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, far more probative are the examination reports prepared by skilled professionals. Such competent evidence concerning the nature and extent of the Veteran's major depression has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. The Board finds that the Veteran has presented credible lay evidence. However, such evidence does not provide a basis for a higher evaluation. Furthermore, other than requesting higher evaluations, his pleadings have been non-specific. However, the Board does find that the Veteran's reports to the examiner to be competent and credible. As such, the Board finds the examination reports to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). In conclusion, the Board finds that the preponderance of the evidence is against an increased rating for the claimed disability and the appeal is denied. Extraschedular Consideration The Veteran has argued that his service-connected major depression has affected his ability to maintain substantially gainful employment. Significantly, the record shows that the Veteran retired early from his nursing assistant job with VA in December 1997 due, in part, to his depressive disorder. The Board will now determine whether referral for an extraschedular rating is warranted. See Barringer v. Peake, 22 Vet. App. 242 (2008). Here, the record does not establish that the rating criteria are inadequate for rating the Veteran's major depression. The competent medical evidence of record shows that, beginning April 12, 2002 his major depression has primarily manifested by some occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking and mood due to symptoms including depressed mood, chronic sleep impairment, mild memory loss, flattened affect, disturbances in motivation and mood, and occasional suicidal ideation. The applicable diagnostic codes used to rate the Veteran's major depression provide for ratings based on such symptomatology. See DC 9433. Thun v. Peake, 22 Vet. App. 111 (2008). Furthermore, while there is ample evidence that the Veteran became unemployable due to his service-connected major depression, he is already in receipt of a total disability rating based on individual unemployability (TDIU). The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Thun, 22 Vet. App. at 111. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Such notice was not provided in this case. Although the appellant received inadequate notice, the record reflects that the purpose of the notice was not frustrated. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In a May 2004 letter, the RO stated that to establish entitlement to an increased evaluation for his service-connected psychiatric disorder, the evidence must show that his condition had gotten worse. The letter also explained that the VA was responsible for (1) requesting records from Federal agencies, (2) assisting in obtaining private records or evidence necessary to support his claim, and (3) providing a medical examination if necessary. The August 2002 rating decision explained the criteria for the next higher disability rating available for the service-connected psychiatric disorder under the applicable diagnostic code. The September 2002 supplemental statement of the case provided the appellant with the applicable regulations relating to disability ratings for his service-connected psychiatric disorder, as well as the requirements for an extraschedular rating under 38 C.F.R. § 3.321(b) and stated that disability evaluations center on the ability of the body or system in question to function in daily life, with specific reference to employment. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the appellant what was necessary to substantiate his increased rating claims, and as such, that he had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication was not affected. VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board although he declined to do so. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER A disability rating of 70 percent, and no higher, for major depression beginning April 12, 2002, is granted subject to statutory and regulatory provisions governing the payment of monetary benefits. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs