Citation Nr: 1315316 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 10-43 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased disability rating for a lumbar spine disability, currently rated as 40 percent disabling. 2. Entitlement to an increased disability rating for a radiculopathy into the right lower extremity, currently rated as 10 percent disabling. 3. Entitlement to an initial disability rating in excess of 30 percent for a major depressive disorder. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant (Veteran) represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from April to October 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Board notes that it has reviewed the evidence of record to include the Veteran's virtual VA claims file. No evidence has been added to the record since the supplemental statement of the case issued in this matter in August 2012. In reviewing the Veteran's claims for increased ratings, the Board has considered Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for entitlement to TDIU when the appellant claims he is unable to work due to a service-connected disability). In medical and lay evidence of record, it is indicated that the Veteran may be unemployable due to his service-connected back and psychiatric disorders. Accordingly, in light of this evidence and the holding in Rice, the Board has included among the issues on appeal a claim of entitlement to TDIU. The issue regarding entitlement to a TDIU is further addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's thoracolumbar spine disorder does not involve ankylosis and does not cause incapacitating episodes. 2. The Veteran experiences mild radiculopathy into his right lower extremity as a result of his service-connected thoracolumbar spine disability. 3. Prior to September 29, 2010, the Veteran's major depressive disorder had been manifested by occasional symptomatology that had interfered with his occupational and social functioning. His primary symptom was sadness. 4. From September 29, 2010, the evidence has demonstrated that the Veteran's major depressive disorder has caused him occupational and social impairment with reduced reliability and productivity. His primary symptoms are depression and anxiety, with irritability. 5. The evidence does not demonstrate that at any time during the appeal, the Veteran's major depressive disorder has caused deficiencies in most areas of his life or total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent, for the Veteran's lower back disorder, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, and Diagnostic Codes 5235-5243 (2012). 2. The criteria for a disability rating in excess of 10 percent, for radiculopathy into the Veteran's right leg, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 3. Prior to September 29, 2010, the criteria for an initial rating in excess of 30 percent, for the Veteran's service connected major depressive disorder, had not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2012). 4. From September 29, 2010, the criteria for a 50 percent rating, for the Veteran's service connected major depressive disorder, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA must provide notice and assistance to claimants for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper 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) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Veteran was provided with notification letters in May and December 2009. The letters informed the Veteran of the evidence and information necessary to substantiate a claim for increased rating, and informed the Veteran regarding his and VA's respective responsibilities in obtaining evidence and information. In accordance with Dingess/Hartman, the letter informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date. The Board notes that while the May 2009 letter was sent to the Veteran prior to the initial unfavorable AOJ decision issued in July 2009, the additional notice in December 2009 was sent after. Regardless, the AOJ subsequently readjudicated the claim based on all the evidence in the September 2010 statement of the case (SOC). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or Supplemental SOC (SSOC), is sufficient to cure a timing defect). Thus, the Veteran was not precluded from participating effectively in the processing of his claims and the late notice did not affect the essential fairness of the decision. With regard to VA's duty to assist, the record indicates that in each notification letter, the RO requested from the Veteran information regarding medical evidence pertaining to his claims for increased rating. The record shows that the RO included in the claims file relevant private and VA treatment records and reports. Furthermore, the Veteran underwent multiple VA compensation examinations into his claims. Reports of the examinations are of record. In the reports, the VA examiners detailed the nature and severity of the Veteran's disorders, and noted findings based on the Veteran's lay statements, on the evidence of record, and on the examination of the Veteran. The findings are supported by data and reasoned explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). As the most recent VA medical examinations were conducted in December 2010, over two years ago, the Board has considered whether a remand of the issues would be appropriate for new examination. See Green v. Derwinski, 1 Vet. App. 121 (1991) (the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran). However, the Board finds new examinations unwarranted. The record contains VA treatment records dated from mid 2009 until June 2012, which detail treatment the Veteran has received for various disorders. Remand for new examinations is therefore unnecessary for the claims on appeal. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (the mere passage of time does not automatically render an examination inadequate; rather, there must be evidence of a change in the condition of an allegation of worsening of the condition). The reports of record, combined with the detailed treatment records, are sufficient to assist the Board in deciding the Veteran's claims. In sum, the Board finds that VA's duties to notify and assist have been substantially met. Any errors committed were not harmful to the essential fairness of the proceeding. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive). Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims for increased rating. The Claims for Increased Rating The Veteran is seeking higher disability ratings for service-connected lower back, radicular, and psychiatric disabilities. The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide reasons and bases supporting the decision. 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 claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). 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 Veteran. 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 Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. To evaluate the severity of a particular disability, it is essential to consider its history. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (2012). Where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). The Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to report that he experiences certain symptoms. See, e.g., Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In the decision below, the Board will address the Veteran's lumbar disorder separately from his psychiatric disorder. Lumbar Disability and Associated Radiculopathy The Veteran has been service-connected for a lower back disorder, and consequent radiculopathy into his right leg, since October 16, 2007. Initially, the RO rated his disability as 10 percent disabling. On April 28, 2009, the RO received a claim for increased rating. In the July 2009 rating decision on appeal, the RO assigned a 40 percent evaluation for the lower back disorder, and a 10 percent rating for the right leg radiculopathy. Each increase was effective the date of the Veteran's claim for increased rating. In this matter, the Board will consider whether a higher rating has been warranted from April 28, 2008 (one year prior to the date of the Veteran's claim for increased rating) at any time during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (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); see also 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202, 205-206 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Disability of the spine is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) and under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. Evaluations of 10, 20, 40, 50, 60, and 100 percent are authorized for such thoracolumbar spine disorders as limitation of motion, intervertebral disc syndrome (IVDS), and ankylosis. As the Veteran's primary back disorder has been rated as 40 percent disabled during the length of the appeal period, the Board will limit its analysis of the rating criteria to whether the 50, 60, or 100 percent ratings would be authorized. An evaluation of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 60 percent is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. An evaluation of 100 percent is warranted for unfavorable ankylosis of the entire spine. Unfavorable ankylosis of the thoracolumbar spine is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, resulting in several symptoms described in Note 5 of the general formula for diseases and injuries of the spine. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). 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 and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). In this matter, the evidence indicates that the Veteran has limitation of motion and IVDS related to his lower back disorder. But no evidence of record indicates that the Veteran has ankylosis in his thoracolumbar spine, or has experienced incapacitating episodes as the result of the disorder. The evidence of record consists of VA examination reports dated in May and December 2009, and in December 2010, and of VA treatment records dated until June 2012. This information notes the Veteran's complaints of pain and limitation, but none of the evidence indicates that the Veteran has ankylosis or has been subject to incapacitating episodes. Rather, the May 2009 and December 2010 VA reports affirmatively indicate the absence of ankylosis and incapacitating episodes. Even considering the Veteran's functional loss, at no point does the Veteran allege, nor the evidence suggest, that he has no movement in his spine, or that his physician has prescribed bed rest. As such, a rating in excess of 40 percent is unwarranted under either the General Rating Formula, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. With regard to the neurological aspects of his lumbar disorder, i.e., the Veteran's radiculopathy, Note (1) under the General Rating Formula directs VA to rate separately under an appropriate DC "any associated objective neurologic abnormalities[.]" The lay and medical evidence clearly shows that the Veteran's IVDS, while not productive of incapacitating episodes, is productive of radiculopathy into the right lower extremity. Hence, a separate rating has been appropriate for his symptoms under 38 C.F.R. § 4.124a. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a , disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, which is at issue in this matter. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Disability ratings of 10 percent, 20 percent, and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. 38 C.F.R. § 4.124a, DC 8520. The evidence in this matter indicates that the neurological symptoms in the Veteran's right lower extremity are sensory and mild in nature. The May 2009 VA examiner indicated that the Veteran had radicular symptoms into his right leg. On electrodiagnostic testing, mildly diminished sensation was noted. Testing also indicated mildly diminished reflexes in the lower right extremity. Nevertheless, the examiner noted normal strength in the legs, normal muscle tone, and no muscle atrophy. This evidence indicates that the Veteran experiences some compensable neurological symptoms in his right leg, but that the symptoms are sensory and mild in nature. The findings are corroborated by the December 2009 VA report, which cited a June 2009 primary care note which indicated no gross or sensory deficits from right side radiculopathy, and the December 2010 VA examiner's findings, which indicated a normal sensory exam, normal reflexes, normal muscle strength and tone, and which indicated no muscle atrophy. Moreover, the VA treatment records do not note any disability in the lower right extremity that could be characterized as anything more than mild. As such, a rating in excess of 10 percent is not warranted for the radicular pain associated with the Veteran's IVDS. 38 C.F.R. § 4.71a, General Rating Formula, Note (1), § 4.124a, DC 8520. The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-07. The competent medical evidence reflects that the assigned 40 and 10 percent ratings properly compensate the Veteran for the extent of functional loss resulting from disability in his lower back and right leg. Although the May 2009 examiner noted, after repetitive testing, additional loss in range of motion in forward flexion caused by the Veteran's lower back pain, the Veteran has already been compensated for that level of disability with the 40 percent rating. Similarly, though the evidence shows clear radicular symptoms, the evidence also shows mild disability in the right leg as a result of the radiculopathy. Accordingly, the Board finds that throughout the appeal period, a rating in excess of 40 percent is unwarranted under the General Rating Formula for degenerative joint and disc disease, and a rating in excess of 10 percent is unwarranted under DC 8520 for mild radicular symptoms. As indicated earlier, the Board has also assessed whether a higher rating was warranted in the year prior to the Veteran's claim for increased rating, from April 28, 2008 to the actual date of claim on April 28, 2009. But the Board has found no evidence of record dated during this period. As such, a rating increase prior to the date of claim is unwarranted as well. 38 C.F.R. § 3.400(o)(2). Major Depressive Disorder On April 28, 2009, the Veteran filed an original claim of service connection for a psychiatric disorder. In the July 2009 rating decision on appeal, the RO granted service connection for a major depressive disorder, and assigned a 10 percent initial rating effective the date of claim. Later, in an August 2012 rating decision issued during the pendency of the appeal, the RO increased the initial rating to 30 percent, effective the date of claim. The Veteran maintains that a higher rating is warranted during the appeal period. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (an appellant is presumed to be seeking the maximum available benefit even where an increase is granted during the appeal period). In the decision below, the Board will assess whether a rating in excess of 30 percent has been warranted since April 28, 2009. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. In determining the propriety of the initial rating assigned, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). The Veteran's service-connected depressive disorder is evaluated under Diagnostic Code 9434. 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 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. 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 disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Under the provisions for rating psychiatric disorders, a 30 percent disability rating is warranted with evidence of: 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, or mild memory loss (such as forgetting names, directions, recent events). Under the provisions for rating psychiatric disorders, a 50 percent disability rating is warranted with evidence of: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The 70 percent disability rating is warranted with evidence of: 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.) Finally, a 100 percent disability rating is warranted with evidence of: 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 9434. Within the DSM-IV, Global Assessment Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). While not determinative, a GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). According to the GAF scale, a score within the range of 61 to 70 represents mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational or school functioning (e.g., few friends, conflicts with peers or coworkers). A score within the range of 51 to 60 represents moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A score of 41 to 50 reflects 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). In this matter, the relevant evidence of record consists of a VA compensation examination report dated in May 2009, VA treatment records dated between 2009 and June 2012, and the Veteran's assertions. After a review of this evidence, the Board finds the preponderance of the evidence against a rating in excess of 30 percent prior to September 29, 2010. From that date, a 50 percent rating has been warranted. 38 C.F.R. 4.130, Diagnostic Code 9411. The earliest evidence of record during the appeal period addressing the Veteran's psychiatric condition is found in the May 2009 VA report. The examiner indicated a review of the claims file, a personal examination of the Veteran, and an assessment of the criteria underlying 38 C.F.R. § 4.130. In her conclusion, the examiner indicated that the Veteran's symptoms were "controlled by continuous medication." She indicated that the Veteran did not manifest symptoms indicating even transient or mild impairment. Nevertheless, the examiner assigned a GAF score of 65, which indicates mild symptoms. In support of her conclusions, the examiner noted certain impairment in the Veteran's life such as regular sadness and crying, lack of interest, trouble sleeping, and a constricted affect. The examiner noted that the Veteran used alcohol, and that he was divorced. But the examiner also noted that the Veteran reported "regular" interaction with his then-current spouse and two children, and regular interaction socially. The Veteran indicated no suicidal or homicidal ideations, and no violent or inappropriate behaviors. The examiner noted the Veteran's clean appearance and ability to maintain hygiene. She noted spontaneous speech, and intact attention, orientation, judgment, insight, and memory. She described the Veteran as cooperative, with an unremarkable thought process or content. She noted no evidence of delusions or hallucinations, or of ritualistic behaviors. She noted no evidence of panic attacks. She noted that the Veteran indicated good impulse control, and reported no problems with activities of daily living due to his depression. The VA treatment records dated from August 2009 to September 29, 2010 indicate mild impairment as well. These records show that the Veteran underwent regular psychotherapy, and used prescription medication to treat his symptoms. The records indicate that the Veteran consistently reported feeling sadness and experiencing sleep impairment. The records indicate intermittent anxiety, irritability, a constricted affect, and occasionally indicate "mild psychomotor retardation" as manifested by slow walking supported by a cane. But the records also indicated that the Veteran had been fully oriented, clean with appropriate hygiene, alert, attentive, cognitively sound, had been coherent and logical, and had only been mildly impaired socially and occupationally. Indeed, prior to September 29, 2010, the Veteran's treating VA psychiatrist regularly assigned GAF scores between 60 and 65, which indicated mild to moderate impairment. Treatment records dated from September 29, 2010 indicate onset of more severe symptoms. A treatment record on that date indicates that the Veteran reported "exacerbation of depressive manifestations[.]" Records dated after September 29, 2010 indicate worsening depression, "low pitch" speech, irritable mood, and constricted affect. Moreover, from September 2010, the record begins noting GAF scores ranging between 45 and 50, which indicates serious symptoms. The evidence between January 2011 and March 2012 indicated an improvement in the Veteran's condition, with the treating psychiatrist assigning GAF scores ranging from 55 to 60. But treatment records dated from June 2012 indicate resumption of more serious symptoms, and again note GAF scores in the 45-50 range. In June 2012, the Veteran's psychiatrist noted "evidence of affective and psychotic relapse." The physician stated that the Veteran reported being unable to "engage in any gainful activities." The physician noted "panic disorder without agoraphobia" and indicated that the Veteran expressed a "delusion of persecution." Based on this evidence, the Board finds a higher rating of 50 percent warranted from September 29, 2010. Although the treatment records indicate some improvement in the Veteran's condition since then, the evidence indicates, generally, a worsening of his disorder, sufficient to more nearly approximate the higher rating. The Board finds that a rating higher than 50 percent is unwarranted, however. The records dated between September 2010 and June 2012 consistently indicate that the Veteran was fully oriented, coherent, logical, relevant, with normal thought content, only limited abnormality of perception (with the single delusion of persecution noted over the entire appeal period), intact memory, judgment, and insight, with no evidence of inappropriate behavior, and no suicidal or homicidal ideations. The treating psychiatrist indicated that the Veteran "adamantly" denied any self harm ideas, intentions or plans, and that he did not present a danger to himself or others. The psychiatrist expressly stated that the Veteran "denies any suicidal / homicidal / aggressive tendencies / intentions or plans." As noted above, a 70 percent rating contemplates a more severe occupational and social impairment than established on the record for this Veteran. In addition, the Veteran's disability picture does not approximate that considered under the 100 percent rating criteria. Although a June 2012 record indicates a "delusion of persecution" the record does not support a finding that the Veteran experiences persistent abnormalities of perception. Rather, as stated earlier, the record consistently indicates that, though the Veteran is depressed and irritable, he is not delusional. In short, the record does not show any type of grossly inappropriate behavior or divorcement from reality such as that contemplated by a total rating. As such, a finding of total occupational and social impairment would be unwarranted here. The record indicates that the Veteran's depression may result in significant impairment. That impairment had been adequately compensated at the 30 percent level prior to September 29, 2010. For the reasons stated above, a 50 percent rating is warranted for his impairment since September 29, 2010. See Fenderson, supra. 38 C.F.R. § 4.130. Extraschedular Consideration The Board must still consider whether the Veteran is entitled to an extra-schedular rating under the provisions of 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996). 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. 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. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board finds that the disability picture presented by the Veteran's back, neurological, and psychiatric disorders are appropriately contemplated by the rating schedule. Specifically, the Veteran has back pain and radicular symptoms associated with range of motion. Those symptoms are directly contemplated by the schedular criteria. Further, the Veteran's depression and irritability is contemplated by the schedular criteria. As indicated in the analysis above, were the record to indicate worse symptoms for either of these disorders, then the rating schedule would warrant higher ratings. Therefore, referral for consideration of an extraschedular evaluation is not warranted here. Thun. In light of the foregoing, the Board concludes that increased ratings for the Veteran's lower back and radiculopathy is not warranted, but that a higher initial rating of 50 percent is warranted from September 29, 2010 for the service-connected major depressive disorder. The benefit-of-the-doubt rule has been applied in arriving at this decision. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to a disability rating in excess of 40 percent for a lower back disorder is denied. Entitlement to a disability rating in excess of 10 percent for radiculopathy into the right lower extremity is denied. Prior to September 29, 2010, entitlement to an initial rating in excess of 30 percent for major depressive disorder is denied. From September 29, 2010, entitlement to a 50 percent rating for major depressive disorder is granted, subject to laws and regulations governing the payment of monetary awards. REMAND After a thorough review of the Veteran's file, the Board has determined that additional development is necessary prior to the adjudication of a claim for TDIU. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA 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) that the claimant is expected to provide. Therefore, this issue must be remanded to provide the Veteran with a notice letter detailing the requirements for establishing entitlement to TDIU. Additionally, the Board notes that VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b) (2012). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). The Board notes that service connection is in effect for the following disabilities - major depressive disorder (50 percent), lower back disorder (40 percent), and radiculopathy (10 percent) - for a combined rating of 70 percent. 38 C.F.R. § 4.25. Therefore, the Veteran's service-connected disabilities meet the percentage rating standards for TDIU. 38 C.F.R. § 4.16(a) (2012). The Board notes that no medical opinion has been specifically provided as to the extent that the Veteran's service-connected disabilities may affect his employability. Therefore, the Board will afford the Veteran a VA examination for the proper assessment of this claim. 38 U.S.C.A. § 5103A (West 2002). As such, this issue must be remanded in order to schedule the Veteran for a VA examination to determine whether he is precluded, by reason of service-connected disabilities from obtaining and maintaining any form of substantial gainful employment consistent with his education and occupational experience. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). Finally, upon remand, any outstanding VA treatment records relating to the claim on appeal that have not yet been associated with the claims file should be obtained. While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice of VA's duties to notify and to assist with regard to substantiating a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the implied claim for entitlement to TDIU, and request that he supply the requisite information. 2. Obtain any and all relevant VA treatment records that have not yet been associated with the claims file. 3. Schedule the Veteran for an appropriate VA examination for his claim for entitlement to TDIU. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. The examiner should elicit a history from the Veteran regarding his recent employment and examine the Veteran thoroughly. After reviewing the file, noting the Veteran's reported history, and examining the Veteran, the examiner should render an opinion as to whether the Veteran is precluded solely by reason of his service-connected disabilities from obtaining and maintaining any form of substantial gainful employment consistent with his education and occupational experience. The examiner is advised that only symptoms related to the Veteran's service-connected disabilities should be considered in determining whether the Veteran is precluded from obtaining and maintaining employment. Symptoms related to nonservice-connected disabilities or circumstances should not be considered in this determination. The examiner should explain the reasons behind any opinions provided. 4. Then, adjudicate the TDIU claim. In particular, review all the evidence that was submitted since the most recent SSOC was issued. If the benefit sought remains denied, the Veteran and his representative should be provided a SSOC. After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2012). 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). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs