Citation Nr: 1311775 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 06-06 904A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a disability evaluation in excess of 30 percent for a chronic adjustment disorder, for the period extending from October 1, 1997, to August 21, 2007, on appeal from an initial grant of service connection. 2. Entitlement to a disability evaluation in excess of 70 percent for a chronic adjustment disorder, for the period after August 20, 2007, on appeal from an initial grant of service connection. 3. Entitlement to an increased evaluation for chronic low back pain due to degenerative disc disease of the lumbosacral segment of the spine, currently rated as 40 percent disabling. 4. Entitlement to an increased evaluation for headaches, rated as 30 percent disabling from October 1, 1997, to October 30, 2003. 5. Entitlement to an increased evaluation for headaches, rated as 50 percent disabling after October 29, 2003. 6. Entitlement to an increased evaluation for the residuals of a right knee injury, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active duty from September 1986 to February 1994. This case comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from an initial rating decision of January 2003 that was issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Oakland, California. In that action, the RO granted service connection for a chronic adjustment disorder and assigned a 10 percent disability evaluation. The appellant was notified of that action and he appealed, claiming that a higher disability rating should have been assigned. This matter is also on appeal from a rating decision in November 1998. In that action, the RO denied the appellant's request for the assignment of higher disability evaluations for headaches, a right knee disorder, and a lower back disability. Ultimately, while the claim was being appealed, the disability evaluation for the psychiatric disorder was staged, and a 30 percent rating was assigned for the period prior to August 21, 2007, and a 70 percent rating was assigned for the period after August 20, 2007. Applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Because the appellant did not withdraw his appeal as to the initial issue involving the disability rating greater than assigned, this bifurcated issue remains in appellate status. With respect to the issues involving higher disability evaluations for a right knee disability and a lower back disorder, the record reflects that when the appellant originally appealed the July 1998 action of the RO, both disabilities were assigned noncompensable evaluations. Over the course of this appeal, both disabilities have been assigned higher disability ratings. The appellant's lower back disability has been assigned a 40 percent rating and the right knee has been assigned a 10 percent rating. In both instances, the disability ratings that have been assigned are less than the maximum available benefits that can be awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The record further reflects that even though higher disability ratings could be assigned, the RO determined that the awards were full grants of benefits and that the claims were no longer on appeal. See Rating Action, January 9, 2003. However, even though the RO believed that the higher disability ratings were a full grant of benefits on those two issues, in February 2003, the appellant contacted the RO, in the form of a letter, and expressed disagreement with both ratings assigned. Because the appellant did not withdraw his appeal as to the initial issue involving the disability ratings greater than assigned, both of these issues remain in appellate status even though action or processing of these issues has not occurred in over ten years. As such, they are shown on the front page of this action. In June 2010, the Board remanded the appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, solely for the purpose of scheduling the appellant for a hearing before the Board. Said hearing was accomplished at the RO in February 2011. A transcript of that hearing was prepared and has been included in the claims folder for review. Following the Board hearing, a determination was made that additional development of the claim needed to occur and as such, the Board remanded the claim in September 2011. The claim has since been returned to the Board for review. The Board notes the Acting Veterans Law Judge who presided over the February 2011 hearing with the appellant has since left the Board. The appellant was notified in a letter sent in November 2012 of that occurrence and he was asked whether he would like the opportunity to testify at another hearing. See 38 C.F.R. § 20.717 (2012). The letter explained that if a response was not received within 30 days it would be assumed that he did not desire another hearing. No response was received and, as such, processing of this claim may continue. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ or AVLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the AVLJ elicited testimony designed to help the appellant substantiate his claims. In addition, the AVLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Moreover, the appellant has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) (2012) or identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim for increased evaluations and the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. Upon reviewing the development since September 2011, the Board finds there has been substantial compliance with its remand instructions with respect to the appellant's increased ratings claim. In this regard, the Court has noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). The AMC was tasked by the Board to obtain additional medical evidence with respect to the appellant's claim, and it has done so. Specifically, the AMC was asked to obtain an examination of the appellant and was also asked to obtain any additional medical records that had not previously been located within the claims folder, which it has done. The results of that request have been included in the claims folder for review. The results were returned to the AMC which, in turn, issued a Supplemental Statement of the Case in response to the information obtained. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of the Board's most recent remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Thus, the Board will proceed to review and decide the claim based on the evidence that is of record. Additionally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to total disability based on individual unemployability (TDIU) is part of a claim for a higher rating when such claim is raised by the record or asserted by the claimant. The Court further held that when evidence of unemployability is submitted at the same time that the claimant is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, TDIU is already in effect from February 5, 2009. The Veteran indicated that he last worked full-time on February 4, 2009. Accordingly, the issue of TDIU has not been raised for the period prior to which the award is in effect and thus such issue is not a component of the claim in appellate status in this case. The issues of entitlement to an increased evaluation for a lower back disability, and entitlement to an increased evaluation for the residuals of a right knee injury are addressed in the REMAND portion of the decision below and those issues are REMANDED to the RO via the AMC. FINDINGS OF FACT 1. On April 4, 2008, prior to the promulgation of a decision in the appeal, the appellant, through his accredited representative, submitted a memorandum indicating that the appellant was withdrawing his appeal with regard to the issue of entitlement to an increased evaluation for a headache disability. Shortly thereafter, the appellant also submitted a written statement indicating that he was withdrawing his appeal on this issue. 2. Prior to August 21, 2007, the appellant's chronic adjustment disorder was manifested by depression, anxiety, irritability, occasional sleeplessness, and some isolation. 3. After August 20, 2007, the appellant's chronic adjustment disorder has been manifested by deficiencies in most areas due to symptoms such as difficulty concentrating, anxiety, anger outbursts, irritability, depression, extreme sleeplessness, and Global Assessment of Functioning (GAF) scores ranging from 34 to 60; the record shows total occupational impairment but not total social impairment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant with respect to the issue of entitlement to an increased disability evaluation for headaches, currently rated as 50 percent disabling, have been met. 38 U.S.C.A. § 7105(b)(2) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for an initial disability rating for a chronic adjustment disability of 50 percent, but no higher, for the period extending from October 1, 1997, to August 21, 2007, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.126, 4.130, Diagnostic Code 9440 (2012). 3. The criteria for an initial disability rating for a chronic adjustment disability in excess of 70 percent, for the period beginning on August 21, 2007, forward, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.126, 4.130, Diagnostic Code 9440 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant, or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant 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). Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Withdrawal of Appeal Pursuant to 38 U.S.C.A. § 7105 (West 2002), the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn in writing at any time before the Board promulgates a decision, either in writing or on the record at a Board hearing. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the veteran or by his or his authorized representative. Id. In April 2008, the appellant submitted a statement to the VA that he was withdrawing his appeal with respect to the issue involving an increased evaluation for headaches. As the appellant has withdrawn this appeal, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appellate issue and it is dismissed. II. Increased Evaluation The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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; and (3) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The Board finds that the Agency of Original Jurisdiction (AOJ) has substantially satisfied the duties to notify and assist, as required by the VCAA. In this matter, the appeal arises from disagreement with the initial evaluation following the grant of service connection for a chronic adjustment disorder. The Court has held that were the underlying claim for service connection has been granted and there is disagreement as to downstream questions (such as the effective date or the disability rating assigned), the claim has been substantiated and there is no prejudice due to inadequate (or no) notice. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Federal Circuit has also held that once the underlying service connection claim is granted there is no duty to provide notice under 38 U.S.C.A. § 5103(a). Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a February 2011 Board hearing. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The appellant contends that he is entitled to a disability rating in excess of 30 percent for his service-connected chronic adjustment disorder prior to August 21, 2007, and in excess of 70 percent after August 20, 2007. Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2012). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The regulations establish a general rating formula for mental disorders. See 38 C.F.R. § 4.130 (2012). Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 (2012) demonstrates 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. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). Id. Diagnostic Code 9440, of 38 C.F.R. Part 4 (2012), pertaining to a chronic adjustment disorder, provides for a 30 percent disability rating where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned when the psychiatric condition produces 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when there is total occupational or 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; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. Part 4, Diagnostic Code 9440 (2012). The Board further notes that a Global Assessment Functioning (GAF) rating (or score) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). The Board notes that an examiner's classification of the level of psychiatric impairment, by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging between 61 and 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). See 38 C.F.R. § 4.130 (2012) [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. 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 score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130 (2012). A. Background of Claim The RO, in a rating action of January 2003, granted service connection for a chronic adjustment disorder. The effective date of the grant was determined to be October 1, 1997, the date in which the RO originally received his claim for benefits. A 10 percent disability rating was assigned. The appellant was subsequently notified of that action. Upon review, the appellant submitted a notice of disagreement, from which the current appeal stems therefrom. More specifically, the appellant claimed that the 10 percent rating that was assigned was insufficient and that a higher rating should be assigned. The RO then processed the appellant's claim and after obtaining the appellant's more current VA medical treatment records and after the appellant underwent a VA psychiatric examination, the RO concluded that the evidence supported the assignment of a 30 percent rating for a chronic adjustment disorder. The RO accomplished this action via a rating decision that was issued in June 2004. Because this was not a full grant of benefits, the appellant's claim continued to be processed for future Board review. Then, in September 2008, the RO awarded a 50 percent disability evaluation for the appellant's mental disorder. The effective date of the award was determined to be October 17, 2007. Thus, in essence, by the RO's action, the issue on appeal was bifurcated. Within six months of the promulgation of the September 2008 action, the RO granted a total disability evaluation based on individual unemployability due to the appellant's service-connected disabilities. The effective date of that award was determined to be February 5, 2009. The appellant then provided testimony before the Board in February 2011. During that hearing, the appellant described the symptoms and manifestations he was experiencing as a result of his psychiatric disorder. He described his symptoms, including sleeplessness and irritability. He also indicated that, at least until he was capable of reducing the severity of the symptoms, he was unable to obtain and maintain gainful employment. Following the hearing, the Board remanded the claim to the RO via the Appeals Management Center (AMC), for the purpose of obtaining additional medical documents and a more recent VA psychiatric examination. An examination was accomplished in November 2011 and the results of that examination, along with VA medical treatment records, were forwarded to the AMC for review. Upon review, the AMC concluded that the evidence of record supported the assignment of a 70 percent disability rating for a chronic adjustment disorder, effective August 21, 2007. B. Medical Evidence of Record As indicated above, the appellant's claim for benefits covers the period approximately extending from 1997 to the present. Over the course of this appeal, the appellant has undergone a number of VA psychiatric examinations in order to determine the nature, etiology, and severity of his psychiatric disorder (chronic adjustment disorder). The record reveals that in November 1997, the appellant underwent his first VA psychiatric examination. Prior to the examination, the appellant complained of depression and anxiety. He further stated that he found himself to be "guarded" around others, with very few friends. After conducting the examination, the examiner wrote that the appellant was nearly and appropriately dressed, and was cooperative during the interview. Affective displays were mostly euthymic and the appellant complained of sleeplessness, irritability, and a lack of concentration. Short term memory was good and he was alert/oriented times four. Auditory and visual hallucinations were denied, as were suicidal and homicidal ideations. Interpersonally, it was noted that the Veteran had intimate and loving feelings for his girlfriend. Approximately five years later, in September 2002, the appellant underwent his second VA psychiatric examination. At that time, was working and married. Before the examination, the appellant stated that he did not socialize with family, he did not have many friends, and he was not involved in church or community organizations/groups. He further stated that he was more irritable and was experiencing panic attacks. Objectively, no memory deficit was noted and the Veteran denied hallucinations and any history of suicide attempts or ideation. The medical examiner, upon further discussion with the appellant, diagnosed an "adjustment disorder" secondary to the appellant's service-connected disabilities. The examiner further concluded that the appellant was suffering from "mild" symptoms and a GAF of 70 was assigned. Another psychiatric assessment was performed in September 2005. The appellant complained of increased depression and anxiety secondary to his service-connected back pain and headaches. He was found to be well-groomed, cooperative, pleasant, and he made good eye contact. His mood was stable and his affect appropriate. There was no evidence of visual/auditory hallucinations or delusions. Thought content was appropriate and thought process was goal directed. His memory was unimpaired and his cognition, insight, and judgment were deemed appropriate. The next VA Psychiatric Examination for compensation purposes was accomplished in August 2007. At that time, the appellant complained of depression, sleeplessness, lack of energy, suicidal ideation and difficulty in personal relationships. When interviewed, the appellant was found to be cooperative, oriented, and alert. He made good eye contact with the examiner and his thinking was clear. Speech was normal in rate, rhythm, and volume, and his affected was controlled and appropriate. There were no indications of hallucinations or delusions, and his memory appeared to be intact. Thoughts were clear, logical, goal directed, and linear. There was no bizarre behavior reported during the interview and his attention/concentration was adjudged to be "intact." Mood and affect were found to be sad and depressed but insight and judgment were within normal limits. The examiner further wrote in his evaluation that the appellant's psychiatric disorder symptoms had increased in frequency, severity, and duration over the previous year (August 2006 to August 2007). Nevertheless, it was noted that the appellant was employed even though he was not motivated to work or to be with others. Although working, the examiner specifically noted that the psychiatric disorder was "interfering" with the appellant's employment functioning. Also reported by the examiner was the fact that the appellant's ability to function in social situations and maintain social relationships was adversely affected by the disorder. The examiner reported that the appellant was socially isolated resulting in limited social skills. A GAF score of 56 was assigned. Finally, the examiner indicated that while the appellant had been prescribed medications for the treatment of his mental disorder, said medications were of little help in controlling or alleviating the symptoms produced by the chronic adjustment disorder. In June 2008, the appellant was examined at the VA Medical Center facility in Palo Alto. The examiner did not have access to the appellant's claims folder. During the interview, the appellant told the examiner that his relationship with his wife was "getting worse." He mentioned that they were possibly separating and that he was feeling very alone. He further reported that he was unmotivated, he had difficulty getting out of bed in the morning, and had some suicidal ideation. After being examined, the examiner noted that the appellant was having a difficult time establishing and maintaining social relationships, especially those that involved intimacy, commitment, and trust. His depressed mood was impairing the appellant's thought process and his ability to communicate successfully with others. The symptoms were further interfering with the appellant's work functioning, but his behavior was still appropriate. A GAF score of 46 was assigned with the examiner indicating that for the year previous, a GAF score of 49 would be appropriate. The examiner further wrote that the appellant's then-current symptoms included a depressed mood, sleep disturbance, sadness, anger and irritability, a reduced appetite with weight loss, lack of energy, lack of motivation, some suicidal ideation, lack of focus, and difficulty in interpersonal relationships. The appellant was still taking prescription medications for the treatment of his chronic adjustment disorder but that the medications did not appear to be controlling the severity of the symptoms produced by the disorder. The final VA psychiatric examination of record was performed in November of 2011. The report showed a diagnosis of an adjustment disorder with depressed mood secondary to service-connected disabilities; a GAF score of 34 was assigned. The appellant was found to have depression, anxiety, chronic sleep impairment, mild memory loss, flattened effect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The examiner concluded with the following assessment: It is at least as likely as not that the patient's adjustment disorder with depressed mood has caused him to be unable to work and he does meet the diagnostic criteria for individual unemployability. This includes difficulty focusing his attention at work, difficulty getting along with people at work, and difficulty motivating himself to get to work. He was fired from his job as an apartment manager due to his difficulty getting along with people at work. He has significant conflicts in his relationship with his wife due to his psychiatric problems. This patient is presently permanently and totally disabled for purposes of occupational employment. There is no type of job that he can work. Clearly the patient's psychiatric symptoms have gotten worse and he is more impaired in his daily functioning. The patient's level of social and occupational impairment is severe due to his chronic adjustment disorder. He is unable to engage in any type of substantially gainful employment due to his psychiatric disorder. Clearly his psychiatric symptomatology has gotten worse since October 1997 and the patient is more impaired. The clinical records in the claims file, which include VA and private medical treatment records from 1996 to the present, show extensive treatment through various VA facilities. The appellant has not been hospitalized for his chronic adjustment disorder. The records do, however, show that the appellant has been in group therapy and one-on-one therapy. He has been prescribed numerous medications to treat and control his symptoms. These same reports (along with the examination reports) also show that, over time, the appellant appears to have decompressed. Such decompression, or the increasing of the severity of the type of manifestations produced by the chronic adjustment disorder, has been chronicled in the GAF scores that have been assigned (see below). Date GAF Score Date GAF Score Date GAF Score 11/24/97 80 5/21/99 70 11/18/02 70 1/6/03 51 4/1/05 51 4/18/05 55 4/20/05 55 4/22/05 60 5/11/05 60 6/23/05 60 9/15/05 65 8/21/07 56 12/20/07 62 6/5/08 46 1/8/10 65 11/17/11 34 Despite the declining GAF scores and other evidence of intensifying symptoms, a mental health record in September 2011 indicates that the Veteran did not end up separating from his wife and that he now has a 2 year old daughter. A November 2011 social and industrial survey noted that in a typical day he would have breakfast with his wife and daughter and then take his daughter to the park. He was teaching her how to read and took her to the library and to gym lessons. They would also watch videos together. Additionally, he cooked dinner for the family. This same report described the Veteran's depression and anxiety as "overwhelming." C. Discussion Upon reviewing the record, it is the conclusion of the Board that the evidence supports an evaluation of 50 percent for a chronic adjustment disorder for the period extending from October 1, 1997, to August 21, 2007. The examinations accomplished prior to August 21, 2007, have noted depression, some isolation, anger-management problems, sleep deprivation, nightmares, and irritability. The appellant appears to have strained social relations with family members and minimal contact with others. The record further suggests that, during this time period, the appellant suffered at least some, if minimal, concentration problems, sleep disturbances, and anxiety, but other manifestations were not documented. In addition, the appellant's GAF scores ranged, on average, from 51 to 65 indicating moderate to moderately serious symptoms. Nevertheless, those same records have reported that the appellant's ability to work was not specifically affected by his chronic adjustment disorder. Although the record for this period of time is not without a measure of ambiguity, the Board concludes that the totality of the evidence in the file appears to be at least in approximate balance. As the Board is unable to conclude that the preponderance of the evidence is against the claim, the claim may not be denied. It is the conclusion of the Board that the appellant's overall disability picture indicates that a 50 percent evaluation, but no higher, should be assigned for a chronic adjustment disorder from October 1, 1997, to August 21, 2007. 38 C.F.R. § 4.7 (2012). Hence, the appellant's claim is granted. While a 50 percent evaluation is deemed appropriate throughout the period in question, the evidence does not support a disability rating in excess of this amount prior to August 21, 2007. Indeed, he was not deemed unemployable as a result of his chronic adjustment disorder. Additionally, during this time period, the appellant was determined to be capable of caring for his physical well-being, and he did not complain of delusions or other thought disorders. Also, prior to August 21, 2007, the appellant was not having suicidal ideation, he was not experiencing recurrent sleeplessness, and remained capable of having social relationships and interactions with others. With respect to the period extending from August 21, 2007, to the present, it is the conclusion of the Board that the evidence does not support an evaluation in excess of 70 percent for a chronic adjustment disorder. In so finding, the Board acknowledges that his depression and anxiety have worsened during the period in question, as indicated in the VA examination reports and as reflected by the generally declining GAF scores. It is also acknowledged that the Veteran has been deemed unemployable due to hid service-connected psychiatric disorder- this is recognized by his award of TDIU, already in effect. However, in order to qualify for a 100 percent rating, the evidence must show not only total occupational impairment but also total social impairment. While the Veteran does have friends or social contacts during the period in question, and while he was experiencing conflict in his marriage, such relationship has been maintained and indeed he is the father to a young daughter. As noted earlier, he has been an active participant in the child rearing, teaching her to read and taking her to the library on a regular basis, while also preparing family dinners. Overall then, while his functioning has concededly continued to slip, the evidence still fails to demonstrate a disability picture so lacking in social functioning such as to warrant assignment of a 100 percent rating. As noted previously, the rating that has been assigned for a chronic adjustment disorder has been staged in accordance with Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether it is appropriate to assigned additional "staged ratings," in accordance with Fenderson, supra. However, the Board finds that the medical evidence demonstrates consistently and throughout that the appellant meets the criteria for a 50 percent rating from the date of his claim to August 21, 2007, and he meets the criteria for a 100 percent rating after August 20, 2007. Therefore, the assignment of staged evaluations in this case is not necessary. D. Extraschedular Evaluation Finally, the Board has also considered whether the appellant is entitled to an extraschedular rating in this case. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether an appellant is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to rate a veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the service member's psychiatric disorder with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the appellant's disability level and symptomatology. In short, there is nothing in the record to indicate that this service-connected disability on appeal caused impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) (2012) prior to August 21, 2007, is not warranted. ORDER The appeal with regard to the issue of entitlement to an increased disability evaluation for headaches, currently rated as 50 percent disabling, is dismissed. A 50 percent disability rating, but no higher, for PTSD, for the period extending from October 1, 1997, to August 21, 2007, is granted, subject to the law and regulations governing payment of monetary benefits. A 100 percent disability rating, but no higher, for PTSD, from August 21, 2007, to the present, is denied. REMAND The remaining issues on appeal involve claims for increased evaluations for disabilities affecting the right knee and lower back. The record reflects that while the appellant may have initiated action on these issues prior to 1998, no development or adjudication has been undertaken on these issues since January 2003. Examinations of the back and right knee for compensation purposes in conjunction with the issues appealed have not been accomplished and supplemental statements of the cases have not been issued that inform the appellant of the status of the issues. VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. In this instance, it appears to the Board that the medical evidence now contained in the claims file with respect to the severity of the appellant's right knee disorder and lower back disability is stale and does not take into account treatment the appellant may have received since 2003 for either one of the claimed disorders. The Board finds that thorough and contemporaneous medical examinations that take into account the records of prior medical treatment (the complete claims folder) so that the disability evaluation will be a fully informed one should be accomplished. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In other words, because there is a lack of clarity, it is the determination of the Board that these issues should be remanded to the agency of original jurisdiction (AOJ) so that examinations of the appellant may occur. Such an action will ensure that the VA has met its duty to assist the appellant with the prosecution of his claims and it will ensure that the Board has an accurate assessment of his claimed disabilities with respect to his claims for increased evaluations for the disorders. The action identified herein is consistent with the duties imposed by the VCAA. However, identification of specific action requested on remand does not relieve the AMC of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the action requested above, the AMC should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. 1. The AMC should review the record and ensure compliance with all notice and assistance requirements set forth in the VCAA and subsequent interpretive authority. The AMC is reminded that it must provide the appellant with the proper VCAA notice with respect to the TDIU issue which is now considered part of the appellant's appeal. Copies of any correspondence forwarded to the appellant should be included in the claims folder for review. 2. The AMC should contact the appellant and ask that he identify all additional medical treatment providers since January 2012 for the disorders currently on appeal (right knee and lumbar segment of the spine), and to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source identified. Copies of the medical records from all sources, including VA records, (not already in the claims folder) should then be requested. All records obtained should be added to the claims folder. If requests for any private or non-VA treatment records are not successful, the AMC should inform the appellant of the nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. 38 C.F.R. § 3.159 (2012). 3. The AMC should afford the appellant an appropriate VA examination by a medical doctor, who, if possible, has not previously examined him. The examiner should comment on the severity of the following disabilities: the residuals of a right knee injury and a lower back disability to include degenerative disc disease. The claims folder should be made available and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. A comprehensive clinical history should be obtained. The examination report should include discussions of the appellant's documented medical history and assertions. It is requested that the examiner identify what symptoms, if any, the appellant currently manifests, or has manifested in the recent past, that are attributable to his service-connected disabilities. For each disability, the examiner should specifically comment on the manifestations and symptoms produced by the particular condition. Prior to the examination, the examiner should be provided with the old and new rating criteria used to evaluation back disabilities, i.e., 38 C.F.R. Part 4, Diagnostic Codes 5290, 5291, 5292, etcetera. Readings should be obtained concerning the appellant's range of motion (knee and back), and any limitation of function of the parts affected by limitation of motion. The examiner should also be asked to include the normal ranges of affected body parts. Additionally, the examiner should be requested to determine whether the affected body parts exhibit weakened movement, excess fatigability, or incoordination, and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion lost or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. [DeLuca v. Brown, 8 Vet. App. 202 (1995).] The examiner should also be asked to express an opinion as to the degree to which pain could significantly limit functional ability during flare-ups or on use. If it is determined that the appellant is now suffering intervertebral disc syndrome of the lumbar segment of the spine, the appropriate examiner should discuss the total duration of any incapacitating episodes (number of days) in the past twelve (12) months, and comment on any related chronic orthopedic or neurological manifestations. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician. Chronic orthopedic and neurological manifestations are defined as orthopedic and neurological manifestations and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Comments should also be provided as to whether the appellant experiences symptoms compatible with severe, recurring attacks, with intermittent relief or pronounced intervertebral disc syndrome compatible with sciatic neuropathy, muscle spasms, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. The results proffered by the examiner must reference the complete claims folders and any inconsistent past diagnoses given. If any matter cannot be medically determined without resort to mere conjuncture, this should be commented on by the examiner in the report. Finally, it is requested that the results of the examination be typed and included in the claims folder for review. 4. Thereafter, the RO should review the expanded record and determine if the benefits sought can be granted. If the claims remain denied, then the RO should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The purpose of the examinations requested in this remand is to obtain information or evidence (or both), which may be dispositive of the appeal. Therefore, the appellant is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by attending the requested VA examinations may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs