Citation Nr: 1311150 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 11-16 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating in excess of 30 percent for major depression. 2. Entitlement to an increased (compensable) rating for scar status post removal of left gracilis and semitendinosus tendons. 3. Entitlement to service connection for erectile dysfunction (ED), claimed as secondary to service-connected depression. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from October 1979 to June 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Houston, Texas, which, in pertinent part, denied an evaluation in excess of 30 percent for major depression and a compensable disability evaluation for a scar, status post removal of left gracilis and semitendinosus. The RO also denied service connection for ED at that time. Thereafter, the Veteran perfected an appeal with regard to each of these issues. The Veteran appeared at a videoconference hearing at the RO before the undersigned Veterans Law Judge in December 2012. A transcript of the hearing is of record. As it relates to the claim for an increased disability evaluation for major depression, the Board notes that service connection for major depression was granted in a July 2008 rating determination, with a 30 percent disability evaluation being assigned at that time. In May 2009, the Veteran requested an increased evaluation for his service-connected depression, noting that his condition had worsened. The Veteran did not submit any evidence is support of his claim. The Board does not view the Veteran's May 2009 statement as a notice of disagreement with the July 2008 rating, nor did the Veteran submit additional evidence within the one year time frame which would have allowed the July 2008 rating determination to remain open. See 38 C.F.R. § 3.156(b) (2012). For this reason, the July 2008 rating decision assignment of a 30 percent rating became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 30.302 (2012). Although the July 2008 rating decision was final, because the Veteran's claim for increase was received in May 2009 does allow for consideration of rating for the period from the July 2008 rating decision. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was factually ascertainable. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2012); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Therefore, the Board will be considering whether there was evidence of an increased disability evaluation (whether entitlement to a higher rating arose) during the portion of the one year period prior to receipt of the increase rating claim that extends back to the final July 2008 rating decision. FINDINGS OF FACT 1. The current ED is etiologically related to the service-connected depression, to include by way of medication prescribed for the service-connected depression. 2. For the entire rating period, the Veteran's major depression symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to symptoms such as depressed mood, anxiety, irritability, social avoidance at the workplace, chronic sleep impairment, and mild memory loss. 3. For the entire rating period of the appeal, the service-connected scar status post removal of left gracilis and semitendinosus tendons manifested complaints of pain and discomfort/tenderness along with itching and occasional breakage of the skin resulting from scratching; the scar does not affect the functioning of the knee or cause any other disabling effects. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, his ED is caused by the service-connected depression. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.310 (2012). 2. The criteria for an increased rating in excess of 30 percent for PTSD have not been met for any period. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.130, Diagnostic Code 9434 (2012). 3. For the entire rating appeal period, the criteria for a 10 percent disability evaluation, and no more, for the service-connected scar status post removal of left gracilis and semitendininosus tendons, have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7801-7805 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Board notes that the Veteran's status has been substantiated. As to the issue of service connection for ED, claimed as secondary to service-connected depression, because the Board is granting this issue, the claim is more than substantiating, resulting in no aspect of the claim that could be further substantiated by VCAA notice or assistance. The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (VA Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision with regard to this claim, further assistance is not required regarding the claim for service connection for ED. As to the issues of increased evaluations, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In a July 2009 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for the increased rating claims, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The notice included information regarding disability ratings and effective dates. With regard to the duty to assist, the Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA treatment records and examination reports, and the Veteran's statements and personal hearing testimony. In addition, the Veteran was afforded a VA psychiatric examination in September 2009 and a VA orthopedic examination in September 2010 concerning his left knee, which encompassed a scar examination. The Board finds that these examinations are adequate for rating purposes because each was performed by a medical professional, was based on a review of the record and history and symptomatology from the Veteran, and a thorough examination of the Veteran. Each examiner reported findings pertinent to the rating criteria. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative. The Veteran also appeared at a videoconference hearing before the undersigned Veterans Law Judge in December 2012 in support of the claim. At the hearing, the Veterans Law Judge set forth the issues on appeal, and asked questions to elicit testimony regarding the severity and frequency of disability for the entire rating period, as well as onset of symptoms of ED. At the hearing, the Veteran and representative indicated that they would be sending medical articles that helped establish a (secondary) relationship between medication for depression and ED. The Veterans Law Judge advised the Veteran than he needed evidence, specifically a medical nexus opinion, relating ED to the depression and medication for depression, and suggested a medical opinion that differentiated the non-service-connected hypertension, explaining that secondary service connection can only attach to service-connected disabilities. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. Moreover, at the time of the hearing, the Veteran submitted additional information following the hearing along with the appropriate waiver. The Board finds that the Veterans Law Judge complied with the duties set forth in 38 C.F.R.§ 3.103(c)(2) (2012). Service Connection for Erectile Dysfunction Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). It is the defined and consistently applied policy of VA 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. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran maintains that his current ED is related to his service-connected depression, to include by way of medication taken for his depression. In support of his claim, the Veteran has submitted medical literature showing a relationship between medication currently taken for his service-connected depression and ED. In conjunction with his claim, the Veteran was afforded a VA genitourinary examination in September 2009. The examiner noted that the Veteran was service connected for depression; however, the examiner was under the impression that the Veteran was not taking medication. The examiner observed that buspirone hydrochloride had been recommended but the Veteran had only taken one tablet per month. The examiner noted that the Veteran reported having had sexual intercourse once a month for the past six months and that prior to that he had had sexual intercourse every week. The Veteran was noted to have erectile dysfunction. Following examination, a diagnosis of very mild erectile dysfunction not as likely as not due to PTSD with the rationale being that the Veteran did not take any medication for his depression and his ED was of six months duration, extremely mild. The examiner opined that ED was not caused by problems associated with the depression because the Veteran took no medication for the depression and there was no direct connection between his depression and the very mild erectile dysfunction. In a September 2009 addendum report, the examiner rendered a diagnosis of ED. He stated that it was his opinion that the ED was not secondary to the depression. The rationale for this opinion was that the Veteran was taking no medication for his depression. It was his opinion that it was less likely as not that the Veteran's erectile dysfunction was not due to the major depressive disorder. With regard to the question of whether the Veteran was taking medication for his service-connected depression, treatment records associated with the claims folder reveal that the Veteran had refills for Bupropion in April 2009, May 2009, September 2009, October 2009, and November 2009. Moreover, in a September 2011 treatment record, the Veteran's overall mood was noted to have improved since his Bupropion intake had been increased. At the time of the December 2012 Board hearing, the Veteran indicated that he had no interest in sexual activities. He noted that he started taking Levitra and was switched to Viagra. He indicated that he would take the maximum dosage and that even with the maximum dose he would sometimes still not have an erection. At the time of the Board hearing, the Veteran submitted a statement from his wife. She noted that she and the Veteran had been married for 22 years and for 18 of those years they had an enjoyable sex life. She reported that this had changed in the last four years. She indicated that, when the Veteran's stress and blood pressure increased as a result of deterioration of his knee, he was given blood pressure and anti-depressant pills. She noted that the problem started when the Veteran was prescribed the medications for his blood pressure and depression. In support of his claim, the Veteran also submitted an article from WebMD containing a list of medications that could cause erectile dysfunction. Buspirone (Buspar) was among those medications on that list. The Veteran satisfies the first necessary criteria for service connection as he has been diagnosed as having ED. While the VA examiner appears to have provided a negative opinion with regard to the relationship between the Veteran's current ED and his service-connected depression and/or medication taken for his depression, this was based upon the Veteran's inaccurate reporting that he was not taking any medication for his depression. Although the Veteran may have reported that he was not taking medication at the time of the examination, treatment records associated with the claims folder reveal that the Veteran was prescribed Bupropion and that he had had prescriptions refilled in April 2009, May 2009, September 2009, October 2009, and November 2009 and was noted to have had his Bupropion medication increased at the time of a December 2011 VA outpatient visit. The Board finds that the evidence is at least in equipoise as to whether the Veteran is taking his Bupropion medication on a consistent basis, which is the primary factual assumption that was determinative of the VA examiner's opinion and which without diminishes the probative value of that opinion. See Reonal v. Brown, 5 Vet. App. 458, 461(1993) (stating that an opinion based upon an inaccurate factual premise has little probative value). Moreover, the Veteran has submitted several articles in support of his contention that specifically list Bupropion/Buspirone, medications which have been prescribed for and taken by the Veteran, as causing ED. In addition, the way the opinion is written by the VA examiner that it is as likely as not that the Veteran's ED is not due to his major depression can also be interpreted as it is as likely as not that the Veteran's ED is caused by his major depression. Given the foregoing, and resolving reasonable doubt in favor of the Veteran, service connection for ED as secondary to his service-connected major depression, to include by way of prescription medication taken for his major depression, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The United States Court of Appeals for Veterans Claims (Court or CAVC) has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The Board has considered whether staged ratings are warranted; however, as the Board will discuss in more detail below, the Veteran's major depression and scar residuals have not increased in severity over the course of the appeal, such that he exhibits symptoms that would warrant different ratings. Increased Rating for Major Depression The General Formula for Rating Mental Disorders, Diagnostic Code 9434, provides that a 30 percent evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation requires 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 abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent evaluation is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms cited above for the 70 percent and 100 percent ratings follow the phrase "such symptoms as" which indicates that the symptoms after that phrase 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. Accordingly, the Board is not required to find the presence of all, most, or even some, of the enumerated symptoms for any particular rating. The list of symptoms merely provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. The Board must consider all symptoms of the veteran's condition which affect the level of occupational and social impairment. If the evidence demonstrates that a claimant 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 v. Principi, 16 Vet. App. 436, 441-443 (2002). The Global Assessment of Function (GAF) is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM), 32 (4th ed.) (1994) (DSM IV); 38 C.F.R. §§ 4.125, 4.130 (2011). GAF scores between 71 to 80 is indicative that, if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more that slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in school work). 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 moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). A GAF score of between 31 and 40 contemplates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The Veteran maintains that the symptomatology associated with his service-connected major depression has increased in severity warranting a higher disability evaluation. VA outpatient treatment records reveal that, at the time of an August 2008 outpatient visit, the Veteran reported having problems with symptom triggers, depressed and anxious moods, difficulty with anger management, flashbacks, and social relationships. Mental status examination performed at that time revealed his mood was stable. His affect was appropriate and he was oriented times three. His posture was comfortable and eye contact and grooming were good. Speech rate was normal with normal rhythm and volume. Articulation was clear. His affect was described as appropriate. Range was full and intensity was appropriate. Thought content was appropriate to topic. Thought process was coherent and perception was intact. There were no suicide attempts or ideations. Insight and judgment were described as good. At the time of a November 2008 visit, the Veteran complained of a mildly depressed mood and a feeling like things were not enjoyable anymore. He indicated that he felt like this every few months. The Veteran reported that he was going to school and had mild anxiety attacks prior to taking examinations. He denied any suicide feelings or feelings of hopelessness or helplessness. Mental status examination revealed he was casually attired and in no acute distress. Speech had a normal rate and rhythm and there was no psychomotor agitation/retardation. His mood was euthymic and thought process was linear. There were no hallucinations or suicidal/homicidal ideations. Insight and judgment were intact. The examiner rendered a diagnosis of adjustment disorder with mixed depressive/anxious features and assigned a GAF score of 55. At the time of an April 2009 visit, the Veteran reported having periods of sadness and mild depression. He stated that he had been under stress as his mother was battling cancer. The Veteran reported that he had not started the Wellbutrin but stated that he would start it. He denied any suicidal/homicidal ideations. Mental status examination revealed he was casually attired and in no acute distress. His speech had a normal rate and rhythm. There was no psychomotor retardation or agitation and his mood was mildly depressed. Thought process was linear and thought content showed no suicidal/homicidal ideation or hallucinations. Insight and judgment were intact. The examiner rendered a diagnosis of adjustment disorder with mixed depressive anxious features and assigned a GAF score of 55. At the time of a June 2009 visit, the Veteran reported that he had had some stress about some legal issues with his son and with his mother being in the hospital. He stated that he had begun working and was moving into the nursing program in school. He reported that he had been procrastinating often. The Veteran noted having work problems, a depressed mood, and concerns about his career. He indicated that he was anxious. Mental status examination revealed good eye contact and grooming. Speech had a normal rhythm and volume and the Veteran was articulate. His affect was appropriate and range was full. Intensity was described as appropriate and thought content was appropriate to topic. Thought process was coherent and goal directed. Perception was intact and there were no hallucinations. Intellect was average and insight and judgment were adequate. In conjunction with his claim, the Veteran was afforded a VA psychiatric examination in September 2009. The Veteran was noted to have been receiving outpatient treatment for the past two years. There had been no hospitalizations. The Veteran was noted to have been prescribed Wellbutrin and Buspar. He was not taking his medications as they had been prescribed. Effectiveness of the therapy was described as poor. At the time of the September 2009 VA examination, the Veteran indicated that his depressed mood came in periods, including stress at work and school and when his boss said he was not concentrating. His depression did not occur every day but when it did he had a low appetite and poor sleep. The Veteran stated he had a lack of interest and energy. He denied suicidal thoughts. He reported having crying spells sometimes and a low libido. He indicated that his mother had died of cancer two months earlier and he was grieving. The Veteran reported that he was not taking the prescribed medications. He stated that he had been married to his wife for 20 years and had four children. The marriage was good but they had some arguments about his depression. Mental status examination in September 2009 revealed he was clean, neatly groomed, and appropriately and casually dressed. Psychomotor activity and speech were unremarkable. His attitude toward the examiner was cooperative, friendly, relaxed, and attentive. His affect was normal but his mood was depressed. He was able to do serial sevens and spell a word backwards and forwards. He was oriented times three and his thought content was unremarkable. There were no delusions. The Veteran understood the outcome of behavior and his intelligence was average. As to insight, he understood that he had a problem. There was no sleep impairment and the Veteran had no hallucinations. There was no inappropriate behavior and the Veteran did not have any obsessive/ritualistic behavior. He also did not have any panic attacks and there were no suicidal/homicidal thoughts. Impulse control was good and there were no episodes of violence. There were no problems performing activities of daily living. Memory was normal. The Veteran was competent to handle his bills and knew the amount of his benefit payment. He could handle his financial affairs. With regard to employment, the Veteran was noted to have worked as a surgical technician until 1999, and then in tissue recovery for 7 years. He then did foster parenting and was now back in school. He was also doing tissue recovery and that was his fulltime employment. He reported that he had been employed in the field for the past 5-10 years. He had lost one week's time from work in the past year. The examiner rendered a diagnosis of depression, NOS, and assigned a GAF score of 65. The examiner indicated that the Veteran had mental disorder signs and symptoms that were transient or mild and decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. As an example, the examiner stated that the depression occasionally affected work/school and social functioning, but not all the time. At the time of a July 2011 outpatient visit, the Veteran reported decreased mood, feelings of withdrawal/self isolation, lack of motivation, and increased lability over the past six months. He noted having previously worked in organ and tissue donations, and since his mother passed away he would find himself having a harder time at work and thinking about his mother. About six months ago, his wife obtained employment and they moved to Houston. He reported that he quit his job and thought his symptoms would improve as he was not constantly around death; however, he reported that his poor mood had declined. Now he avoided going out to the movies with his wife and just preferred to be alone. He also indicated that he was more short tempered. He was enrolled in a degree program for funeral directing and had a hard time concentrating and was easily distracted. He had been on his medications for several years and denied any side effects. The Veteran reported in July 2011 having decreased interest in pleasurable activities, a depressed mood, difficulty falling asleep, a variable appetite, occasional decreased libido, low self-esteem, frequent crying spells, feeling overly emotional, irritability, feelings of hopelessness and helplessness, and isolation and social withdrawal. He also reported forgetfulness and losing track of time. The VA examiner in July 2011 indicated that the Veteran was going to school for funeral directing and had previously worked in organ and tissue donation. He had been married for 20 years and had four children and three grandchildren. Mental status examination in July 2011 revealed he was well dressed and well groomed. He was polite and cooperative. Speech was normal in rate, volume, and inflection. He had appropriate articulation and enunciation. His mood was sad and his affect was euthymic with normal intensity and congruency. Thought process was goal directed and logical. The Veteran denied having audiovisual hallucinations. Judgment and insight were fair and cognition was grossly intact. The Veteran was noted to have a sense of hopelessness and desperation but risk of suicide was described as low. The examiner rendered Axis I diagnoses of mild major depressive disorder and anxiety, NOS, by history. He assigned a GAF score of 60. The examiner indicated that the Veteran was not a danger to himself or others. At the time of a September 2011 outpatient visit, the Veteran reported that his overall mood had increased since his medication dosage had been increased. However, he noted that in the past week he had had an argument with his wife and was stressed about his school. He reported feeling more depressed than his baseline. During times of depression he felt amotivation, low energy, isolation, and some irritability. He also endorsed feeling down and having crying spells even without any stressors from time to time. Mental status examination revealed he was appropriately dressed and groomed. He was cooperative but seemed hesitant. Speech had a normal rate and volume and inflection and enunciation were appropriate. His mood was described as "a little better." His affect was full and euthymic with normal intensity and congruency. Thought process was logical and goal-directed. He had no suicidal/homicidal ideations or hallucinations. Judgment and insight were fair. He was oriented times three. The examiner rendered Axis I diagnoses of mild major depressive disorder and anxiety, NOS, by history. He assigned a GAF score of 60. The Veteran was not a risk to himself or others. At the time of the December 2012 Board hearing, the Veteran's representative indicated that the Veteran had no active social life and did not engage in activities that he used to. He noted that the Veteran had recently obtained employment and worked at a morgue. The Veteran reported that he worked alone as he had a short temper. The representative observed that the Veteran had recently been assigned a GAF score of 60 and that he had decreased mood, lack of motivation, lack of concentration, and ongoing sleep problems. The Veteran indicated at the hearing that he had withdrawn from the nursing program due to his lack of concentration and being unable to focus. He stated that he obtained employment working at the morgue and was able to get along with his co-workers. He reported that he had episodes of depression once or twice a week. The Veteran indicated that he did not know what triggered them but he would all of a sudden feel sad. He tried to schedule his appointments when he was not working. He stated that the medications had been working and he was holding on and seeing the mental health counselors. The Veteran indicated that he did not like going out and doing things such as going to the movies. Based on the foregoing, the Board finds that, for the entire rating period, the Veteran's major depression has been characterized by symptoms of depressed mood, anxiety, irritability, social avoidance at the workplace, chronic sleep impairment, and mild memory loss. The Board finds that throughout the rating period the Veteran's major depression symptoms result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which is consistent with a 30 percent disability rating under Diagnostic Code 9434. Throughout the course of the appeal, the Veteran has been assigned GAF scores between 55 and 65. As noted above, scores ranging from 51 to 60 reflect no more than moderate symptoms while scores ranging from 61 to 70 reflect only mild symptoms. The September 2009 VA examiner specifically indicated that the Veteran's signs and symptoms that were transient or mild and decreased work efficiency and ability to perform occupational tasks occurred only during periods of significant stress. As an example, the examiner stated that the depression occasionally affected work/school and social functioning, but not all the time. At the time of the September 2011 visit, the examiner described the Veteran's major depressive disorder as mild and assigned a GAF score of 60. Mental status examinations of record show the Veteran was oriented to time, person, and place, and thought content and process were unremarkable. There was no impairment in judgment, thinking, or family relationships, and while the Veteran was shown to have depression and anxiety, impairment in mood did not result in neglect of family or an inability to do work. The Veteran reported that he had been married to his wife for over 20 years. VA examinations and treatment records show that the Veteran has either been employed or in school throughout the appeal period and that he is currently working full-time. The Veteran also testified that he was getting along with his co-workers. The Board finds that the more probative evidence of record shows that the Veteran's major depression is no more than mild to moderate in degree, and reflects occupational and social impairment and symptoms consistent with a 30 percent disability rating. The Board finds that the Veteran's major depression has not been characterized by occupational and social impairment with reduced reliability and productivity due to symptoms such 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; or impaired abstract thinking as described for a higher 50 percent evaluation for major depression. The September 2009 VA examiner found, based on examination of the Veteran and a review of the records, that the Veteran did not have occupational and social impairment with reduced reliability and productivity due to major depression signs and symptoms. While the Veteran has described difficulty in establishing and maintaining effective work relationships, he continues to work on a full-time basis and has not reported having bad relationships with his immediate family members, and indicated that he was getting along with his co-workers at the time of the December 2012 hearing. The Board finds that overall the Veteran's major depression symptoms and the severity of his symptoms more closely approximate the criteria at Diagnostic Code 9434 for a 30 percent evaluation for major depression for the entire rating period, and do not more nearly approximate the criteria for a 50 percent disability rating at any time during the rating period. For these reasons, the Board finds that a preponderance of the evidence is against the appeal for a higher disability rating than 30 percent for major depression and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. Increased Rating for Scar from Tendon Removal The Veteran maintains that the symptomatology associated with the scar resulting from removal of left gracilis and semitendinosus tendons warrants a higher (compensable) disability evaluation. A noncompensable (0 percent) disability rating for the scar has been in effect since August 1999. A claim for increase arose in June 2010. Under Diagnostic Code 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrant a 10 percent rating. A scar in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq cm) warrants a 20 percent evaluation. A scar in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq cm) warrants a 30 percent evaluation. A scar in an area or areas of at least 144 square inches (929 sq. cm.) or greater warrants a 40 percent evaluation. 38 C.F.R. § 4.118. Under Diagnostic Code 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. Note (2) indicates that if multiple qualifying scars are present, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity. 38 C.F.R. § 4.118. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent evaluation. Five or more scars that are unstable or painful warrant a 30 percent evaluation. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118. Under Diagnostic Code 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800-7804 are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118. A review of the record reveals that as part of the Veteran's August 1999 left anterior cruciate ligament construction, a longitudinal incision was made approximately 1 cm medial and 1 cm distal to the medial aspect of the tibial joint line. Sharp dissection was taken down through the skin and Bovie cauterization was taken down to the fascial layer. Hamstrings were identified and freed up using a combination of blunt and sharp dissection. The hamstrings were harvested in standard fashion and were put together using #2 Dacron. The notch was cleaned out and a notchplasty was performed in standard fashion, The graph was measured to be 9 mm. In his May 2011 substantive appeal, the Veteran reported that the scar related to his status post removal of the left gracilis and semitendinous tendons was tender to the touch and that a 10 percent evaluation was warranted. At the December 2012 Board hearing, the Veteran testified that the scar from the surgery would become red at times, most likely as a result of clothes rubbing up against it. He also reported having pain in the scar area when moving his knee. He further indicated that if he scratched it the skin would break. The Veteran stated that the scar did not prevent him from doing things. He reported that the scar area was itchy three times per week. He also reported that he felt as if the scar were adhering to something underneath. He testified that the scar was painful with movement. He reported that he had scar pain throughout the appeal period and that it had become slightly worse during the appeal period. Resolving reasonable doubt in favor the Veteran, the Board finds that a 10 percent disability evaluation is warranted throughout the appeal period for the scar resulting from the removal of left gracilis and semitendinosus tendons under DC 7804 as the Veteran has indicated that his scar is painful and itchy with occasional skin breakage from itching. 38 C.F.R. §§ 4.3, 4.7. The Board further finds that a higher rating than 10 percent is not warranted for any period. As the Veteran's scar has been shown to be only 9 millimeters in length, a compensable evaluation would not be warranted under DC 7801 or 7802; therefore, an evaluation in excess of 10 percent would not be warranted As there is only one scar that is service connected, higher ratings for multiple scars are not warranted under Diagnostic Codes 7802 or 7804. The Board finds that a higher rating is not warranted under Diagnostic Code 7805 and other appropriate diagnostic codes based upon any other disabling or other effects. The medical evidence does not establish any symptoms or effects of the service-connected scar other than the pain and tenderness on palpation and complaints of discomfort and pain with moving of the knee. Extraschedular Consideration The Board has considered whether an extraschedular evaluation would have been warranted for major depression and scar status post removal of left gracilis and semitendinosus tendons. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R.§ 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's major depression is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, DC 9434, specifically provides for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's major depression has manifested symptoms of depressed mood, anxiety, irritability, social avoidance at the workplace, chronic sleep impairment and mild memory loss. These symptoms are either explicitly part of the schedular rating criteria or are "like or similar to" those symptoms and impairment explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The levels of occupational and social impairment are also explicitly part of the schedular rating criteria. In addition, the GAF scores are incorporated as part of the schedular rating criteria as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning. As discussed, the Veteran's symptoms and impairment due to the scar disability are contemplated by the rating schedule, and the schedular rating criteria is adequate to rate the Veteran's disability. The rating criteria contemplate the Veteran's symptoms and impairment of painful or tender scar (both subjective and objective findings), and provide for potentially higher ratings based on other criteria such as the size of the scar, whether the scar is deep or unstable, frequency of loss of covering of the skin, and any other functional impairment the scar has on the affected area. See 38 C.F.R. § 4.118. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "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. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with an acquired psychiatric disorder or scar residuals, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Service connection for erectile dysfunction is granted. An increased rating in excess of 30 percent for major depression is denied. A 10 percent evaluation for scar status post removal of left gracilis and semitendininosus tendons for the entire appeal period is granted. ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs