Citation Nr: 1316176 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 97-10 274A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent, prior to August 1, 2006, for depressive disorder. 2. Entitlement to a disability rating in excess of 50 percent, from August 1, 2006, to June 24, 2010, for depressive disorder. 3. Entitlement to a disability rating in excess of 70 percent, beginning June 24, 2010, for depressive disorder. 4. Entitlement to a total disability rating based upon individual unemployability (TDIU), prior to June 24, 2010, due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1967 to December 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The March 2005 decision granted the Veteran an increased rating for his depressive disorder, assigning a 50 percent rating, effective March 11, 2004. A June 2011 rating decision granted a 70 percent rating for his depressive disorder and TDIU, both effective June 24, 2010. Although these are partial grants of the benefit sought, the Board notes that the Veteran has indicated continued disagreement with the rating assigned and the Veteran has not been granted the maximum benefit allowed; thus, the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge (AVLJ) in December 2009. A transcript of the hearing is associated with the claims file. The Veteran's claim was most recently remanded in July 2012 to attempt to obtain outstanding records-including VA treatment records and records from a request of state disability benefits. The requested action was taken, and the case has since been returned to the Board for adjudication. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering this decision. FINDINGS OF FACT 1. Prior to August 21, 2006, the Veteran's depressive disorder was manifested by occupational and social impairment with reduced reliability and productivity due disturbances of mood and motivation, social withdrawal, decreased concentration, sleep disturbances, occasional panic attacks, and difficulty maintaining relationships. He has not, however, been shown to have occupational and social impairment with deficiencies in most areas. 2. Beginning August 21, 2006, the Veteran's depressive disorder is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, and family relations due to significant sleep impairment, depressive thoughts, some obsessional rituals, decreased concentration, panic attacks, anger problems, and markedly impaired judgment and insight. He has not, however, been shown to have total occupational and social impairment. 3. Beginning August 21, 2006, the Veteran's service-connected disabilities preclude him from obtaining and retaining substantially gainful employment; prior to that date the Veteran was able to obtain and retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 50 percent for depressive disorder, prior to August 21, 2006, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9434 (2012). 2. The criteria for an increased disability rating of 70 percent, but no higher, for depressive disorder, from August 21, 2006, to June 24, 2010, have t been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9434 (2012). 3. The criteria for a disability rating greater than 70 percent for depressive disorder, beginning June 24, 2010, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9434 (2012). 4. The criteria for entitlement to TDIU are met from August 21, 2006, but no earlier. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran'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, all the evidence submitted by or on behalf of the Veteran. 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 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). Duties to Notify and Assist In correspondence dated in August 2004, May 2008, and June 2011, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the RO notified the Veteran of information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The June 2011 letter notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claims were subsequently readjudicated in various supplemental statements of the case, most recently dated in January 2013. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudication the claim, and notifying the claimant of such readjudication in the statement of the case). Although fully satisfactory notice was delivered after the claims were adjudicated, the RO subsequently readjudicated the claims based on all the evidence in various supplemental statements of the case issued, most recently in January 2013. The Veteran was able to participate effectively in the processing of his claims. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete notice been provided at an earlier time. As noted above, the Veteran also was afforded a hearing before an AVLJ during which he presented oral argument in support of his increased rating and TDIU claims. 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) (2012) requires that the AVLJ/DRO 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, the AVLJ fully explained the issue on appeal during the hearing and discussed the basis of the prior determination, the element(s) of the claim that were lacking to substantiate the claim for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claims. The Board also notes that neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. 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). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records and Social Security Administration (SSA) records have been associated with the claims file. In its July 2012 remand, the Board requested, inter alia, that the Veteran be asked to provide releases to obtain evidence related to his request for state disability benefits. The Veteran did not provide a release, nor did he identify any additional outstanding records. As such, the Board finds that all identified and available treatment records have been secured to the extent possible. Given the request for releases to obtain records, the receipt of multiple VA treatment record, and subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its July 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As the Board will discuss in detail in its analysis below, the Veteran was provided with VA examinations throughout the appeal period. The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Also, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his disability since he was last examined in June 2010. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). The Board concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4) (2012); Barr, 21 Vet. App. at 312. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. As noted above, he presented testimony before the undersigned in December 2009. Therefore, the duties to notify and assist have been met. Legal Criteria Increased Ratings Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2012). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2 (2012); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. In this case the Board has concluded that the disability has not significantly changed and that a uniform evaluation is warranted for the period considered. The Veteran's depressive disorder has been evaluated using Diagnostic Code 9435 of 38 C.F.R. § 4.130, which sets forth criteria for evaluating a mood disorder using a general rating formula for mental disorders outlined in Diagnostic Code 9440. Pertinent portions of the general rating formula for mental disorders are as follows, in pertinent part: 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...........100 percent 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..............................70 percent 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......................50 percent 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 Veteran'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. Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is 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). According to the DSM-IV, a GAF score between 41 and 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job); a GAF score between 51 and 60 is indicative of 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 coworkers); a GAF between 61 and 70 is indicative of 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, has some meaningful interpersonal relationships; a GAF between 71 to 80 is indicative that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in school work). TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2012). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). 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). 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). Factual Background The Veteran contends that his depressive disorder warrants rating in excess of 50 and 70 percent for the timeframes noted above. He also contends he is unemployable due to his service-connected disabilities. By way of background, the Veteran was originally awarded service connection for depressive disorder in a November 2002 rating decision. He was assigned a 30 percent rating with an effective date of June 1997. He filed his current claim for an increased rating and TDIU in March 2004. In a March 2005 rating decision, his disability rating for depression was increased to 50 percent disabling, and TDIU was denied. He perfected an appeal, and following a Board remand, a June 2011 rating decision assigned a 70 percent rating and TDIU, both effective June 2010. In conjunction with his claim, the Veteran submitted a March 2004 statement from his treating psychologist. He indicated that the Veteran most recently sought treatment for his depression and anxiety complaints in 2003. She indicated that his symptoms are caused by his back pain. She indicated that the Veteran attended anger management group and was referred to the VA Los Angeles Ambulatory Care Clinic for day treatment. She listed the Veteran's current diagnoses as including, mood disorder due to a general medical condition and anxiety, not otherwise specified (NOS). The Veteran was afforded a VA contract psychiatric examination in December 2004, at which time he reported that he has a lot of anger inside of him and experiences depressive symptoms. He indicated that his symptoms of depression are worse in the afternoon and evening, and described his current mood as "not too good," because of a lot of back pain. He endorsed sleep impairment inasmuch as he tosses and turns a lot due to back pain. This occurs nightly. The Veteran described some weight loss, but in the past month it had stabilized. He endorsed a low energy level and loss of sex drive in the past two years or more. He stated that once in awhile he will participate in some activities with friends, but does not have much contact with family. He could not state whether he experiences anhedonia, and endorsed some visual hallucinations in the form of little objects "going by him" once in awhile. The Veteran indicated that these hallucinations have been occurring for the past two to three years, and at one time, he felt an image come out of his body (3 years prior). He denied any other psychotic, manic, or depressive symptoms. He endorsed a history of having phobias of being enclosed in one place and has experienced panic attacks within the past three to four years. During these panic attacks, he described hyperventilating, shaking, and crying. His heart races and his palms/hands start sweating. These symptoms last a few hours, and appear to be brought on by money or stress. The Veteran could not describe the frequency of these panic attacks, and admitted that he has not had one in over a year. The Veteran denied any psychiatric hospitalizations, suicide attempts, or substance abuse programs. He has undergone outpatient mental health treatment on and off since the early-1990s. He indicated that he started up again about one month ago and will be going in for treatment once every three months. He has been prescribed medication for treatment of his symptoms. The examiner noted that the Veteran is in a relationship with a woman he calls his wife for the past 31 years, but they are not married. He has no children. The Veteran had a history of employment as a truck driver for 23-24 years, and stopped working until the mid-1990s due to his back disability. He indicated that his psychiatric disability impacts his romantic relationship both regarding money and their sex life. He stated that it impacts his working life due to anger issues. Mental status examination revealed normal attitude, behavior, and hygiene. He was clean and neat, pleasant and relaxed, and not hostile or fearful. He was oriented in all spheres and did not appear to be in any acute distress. The examiner indicated that the Veteran's affect appeared mildly depressed and constricted. He denied suicidal or homicidal ideation or intent. There was circumstantiality of his speech as well as retardation of speech. The examiner found no evidence of loose associations, tangentiality, or circumstantiality. During the interview, he denied hallucinations, delusions, schneiderian symptoms, or other psychotic symptoms. Intellectual functioning and sensorium were generally within normal limits. His recent and remote memories were intact, even though he was slow at recalling numbers due to lack of concentration. He had no psychomotor retardation or excitability, and his intellect appeared average. The examiner indicated that the Veteran was unable to discuss any of the similes, but his judgment and insight were good. When describing the Veteran's current level of functioning, the examiner indicated that in addition to the appropriate grooming and hygiene, he goes shopping and drives. His hobbies include working on radios and VCRs. He has a friend with whom he keeps in contact, but again, he does not remain in contact with his relatives. The Veteran believes he relates "really good" with other people. On a normal day, he spends time with his wife and grand kids. He watches T.V., listens to the radio, and walks his dog. Once a week he goes to the VA day treatment group. Following examination and discussion of the Veteran's history, the examiner diagnosed the Veteran as having major depressive disorder, and assigned a current GAF of 57. In an addendum received that same month, the examiner opined that the Veteran may have some difficulty in certain employment due to his lack of concentration, but described it as mild in nature and not pervasive. In an April 2006 VA outpatient treatment note, the VA psychologist indicated that the Veteran's symptoms were stable and he was coping with his daily stressors. It was noted that he continued to go to day treatment therapy, and he described his major stressor as being medical in nature. These symptoms were characterized as mild to moderate in intensity. The psychologist indicated that the Veteran warrants a GAF of 64 for his mood disorder due to general medical condition. In an August 2006 treatment note, the Veteran reported increasing distress due to his relationship with his "wife." They had lost their apartment, and she was moving in with a granddaughter. He described his sleep as being poor, but no problems with appetite or panic attacks. He denied any suicidal or homicidal ideation. The staff psychiatrist noted that despite significant and substantial reduction in symptoms, the Veteran remains highly dysfunctional due to anxiety and persistent lack of insight. He blamed others for his relationship problems and financial situation. In November 2006, his GAF was 55, but his stressors again were noted to be mild to moderate in nature. The Veteran was afforded another VA contract examination in June 2007, during which he reported that things are getting worse. He reported continuous treatment for emotional problems that are treated with therapy and prescription medication. He denied any delusions, hallucinations, morbid mood changes, suicidal ideation, or evidence of psychosis. He endorsed feeling depressed all the time, and will cry spontaneously once or twice day. The Veteran reported constant feelings of despair and despondency all the time and has difficulty sleeping. He described his appetite as being poor, but he is able to maintain his current weight. The Veteran denied any legal or substance abuse problems. He now indicated that his depression was also part of the reason he stopped working in the mid-1990s. He is able to fulfill his basic needs and continues to live with his long-term female partner. He is able to drive, but he denied any activities or hobbies. The Veteran described his relationship with family and friends as "fair." Mental status examination revealed general appearance, thought processes, and thought content all within normal limits. His thoughts were coherent and organized, and there was no tangentiality or loosening of associations. Further, these thoughts were relevant and non-delusional. There was no evidence of bizarre or psychotic thought content. He denied suicidal, homicidal, and paranoid ideation. He denied any recent auditory or visual hallucinations, and he did not appear to be responding to internal stimuli during the interview. The Veteran's mood and affect were moderately discouraged as the Veteran expressed feelings of depression throughout the interview. Speech and intellect were normal and average. Short- and long-term memory was within normal limits. The examiner provided a diagnosis of chronic major depressive disorder, and assigned a GAF of 50. The Veteran indicated that he is unable to work due to his depressive symptoms and requested a rating in excess of 50 percent. The examiner indicated that it "would seem that a modest increase in his disability would be appropriate, based upon his current mental status and reports in the record about his current treatment status." The examiner opined that the Veteran's prognosis is fair. In a June 2008 (received in July 2008) letter from a treating psychiatrist, he indicated that the Veteran had recurrent major depression complicated by chronic pain. In a form with the letterhead from the Veteran's representative, there is a list of all the rating criteria for psychiatric disorders. By marking an "X," he purported to opine that the Veteran experiences occupational and social impairment with deficiencies in most areas. The psychiatrist did not find, however, that the Veteran experiences total occupational and social impairment due to his depressive disorder. There is no accompanying narrative or other discussion for why the psychiatrist "opined" as the Veteran's occupational and social impairment with deficiencies in most areas. The Veteran denied any private treatment for his depression. A review of the record shows multiple treatment records during the timeframe on appeal showing the Veteran's VA treatment for his depressive disorder. In 2008, the Veteran participated in a day treatment program, but ran into some problems during the program and was subsequently discharged from the program. During his December 2009 hearing, he testified that he is depressed every day-even on medication. He indicated that he has not been himself for awhile and he experiences anger and depression. He testified that he gets into a lot of arguments with his wife, and she confirmed this. He further indicated that he was upset that he was discharged from the VA day treatment program and was unable to go again. In a February 2010 VA treatment record, the Veteran was noted to have mild, major depressive disorder and was assigned a GAF of 65. At that time, the Veteran had a depressed mood and flattened affect. He had good hygiene and appeared in no acute physiological distress. He was oriented in all spheres and cooperative with the treating professional. His speech was monotone, but its volume was within normal limits. Thought content was negative for hallucinations or delusions, but his thought process was somewhat circumferential because he was mostly concentrating on being treated unfairly by others. Memory, attention, and concentration were "conversationally adequate." The Veteran's insight and judgment were fair, and he denied any active suicidal, homicidal or assaultive ideations. He is future oriented and goal directed. The Veteran did report some relational issues, and appeared to have problems accepting responsibility for his own problems with dysthymia and irritability. In June 2010, the Veteran was afforded another VA psychiatric examination, at which time he reported depression, anger management problems, paranoid thoughts, insomnia, diminished libido, and memory and concentration impairment. The Veteran was clean, neatly groomed, and appropriately dressed at the examination. His psychomotor activity and speech were unremarkable, and he was cooperative toward the examiner. His affect was appropriate, but his mood was anxious and depressed. His attention and orientation were intact. Thought process was rambling and thought content included paranoid ideation. There were no delusions reported. The Veteran's judgment was within normal limits, but his intelligence is below average. He reported difficulty initiating and maintaining sleep and only averages four hours per night. He related that he experiences nightmares twice weekly. He endorsed auditory hallucinations, but denied their persistence. The examiner indicated that the Veteran did not exhibit inappropriate behavior, but he experiences compulsive hand washing and concern for neatness. The Veteran endorsed panic attacks once per month and had been hospitalized during one such attack in March 2010. He denied any current homicidal or suicidal thoughts. He has good impulse control and no episodes of violence. He is able to maintain a minimum level of personal hygiene and there are no problems with performing his activities of daily living. Remote and recent memory were both normal, but his immediate memory was mildly impaired. The examiner diagnosed major depressive disorder, recurrent and chronic. He assigned a GAF of 55, and noted that the Veteran exhibits moderate to severe impairment both occupationally and interpersonally. The examiner further opined that the Veteran has total occupational and social impairment due to his depressive disorder. He noted that the Veteran has difficulty getting along with people due to his chronic depression and anger management problems. He is socially isolated, with poor self esteem, and would have difficulty taking criticism in a work environment. The examiner further opined that the Veteran would have difficulty concentrating due to his high level of anxiety and would have difficulty following complex instructions and meet work quotas/deadlines. In an April 2011 VA treatment record, the Veteran was noted to have dysthymia and was assigned a GAF of 65. He related that he was dissatisfied with his VA psychiatric care because his treatment provider was unwilling to provide him with a letter supporting an increase in VA benefits. Towards the end of 2011, the Veteran attended grief counseling at the VAMC to help cope with the loss/grief of losing his life partner. He reported increased depression, but is aiming to become emotionally healthy again. Throughout the timeframe on appeal, the Veteran has regularly sought treatment for his depressive symptoms. In some instances, as noted above, it was due to increased symptoms from bereavement, in other instances, due to his difficulty coping with chronic pain or family problems. His GAF scores have varied from 50 to 65. And his symptoms have been described as mild to more moderately severe in nature. He has been compliant with treatment and has found it helpful, and treating professionals have indicated that the Veteran seemed stable and coping with the daily stressors. Analysis Increased Ratings In this case, the Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. The Board concludes, however, that the symptoms and manifestations of his depressive disorder as shown during the VA examinations and the course of outpatient treatment, as well as based on statements by the Veteran and his wife, do not demonstrate a degree of disability that warrants assignment of a rating greater than 50 percent prior to August 21, 2006, or in excess of 70 percent thereafter; an increased 70 percent evaluation is warranted for the period of August 21, 2006, to June 24, 2010. See 38 C.F.R. § 4.7 (2012). Furthermore, the symptoms and manifestations shown throughout the Veteran's treatment are generally consistent in terms of impact on social and occupational functioning throughout the pendency of the applicable appellate time periods. For this reason, additional staged ratings are not applicable. See Fenderson, 12 Vet. App. at 119. Initially, the Board acknowledges the assigned GAF scores prior to June 24, 2010, ranged from 50 to 65, which suggests mild to moderate symptoms. That said, an examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned. The percentage rating is to be based on all the evidence that bears on occupational and social impairment. 38 C.F.R. § 4.126 (2012); VAOPGCPREC 10-95 (1995); 60 Fed. Reg. 43186 (1995). Prior to August 21, 2006, the functional impact of depressive symptoms demonstrates reduced reliability and productivity, without serious deficiencies in most areas of his life. During this timeframe, the Veteran was in a long-term partnership with a woman whom he called his wife. Although he and his "wife" had some relationship issues stemming from sexual intimacy problems and money, he described their relationship in a positive light. He reported consistent anger management issues, depressive symptoms, occasional panic attacks, but otherwise normal attitude, behavior, and hygiene. The Board finds that the Veteran's symptoms prior to August 2006 are most analogous to those associated with a 50 percent rating. In other words, his symptoms show occupational and social impairment with reduced reliability and productivity. Namely, he exhibited disturbances in motivation and mood, impaired abstracting thinking, difficulty maintaining/establishing social and occupational relationships in addition to the depression and anger problems. However, the Veteran did not display obsessional rituals which interfere with routine activities, exhibit illogical, obscure, or irrelevant speech, or exhibit neglect for personal appearance or hygiene. He was generally functioning well prior to August 2006. As noted above, the Board acknowledges that a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan, 16 Vet. App. at 442; however, as the Court held in Mauerhan, without the examples noted in the rating criteria differentiating a 50 percent rating from a 70 percent rating, evaluation of the psychiatric disability for rating purposes would be extremely ambiguous. The Board is to consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. If the evidence demonstrates that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the Diagnostic Code, the appropriate equivalent rating should be assigned. Id. In this case, however, the Board concludes that the Veteran's depressive disorder symptoms did not cause occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, as necessary to warrant a 70 percent rating, prior to June 24, 2010. Nor did the Veteran exhibit total occupational and social impairment as contemplated for a 100 percent rating at any time during the appeal period. However, beginning August 21, 2006, the date of a VA progress note discussing increasing symptomatology, the Veteran began displaying a pattern of poor judgment, blame shifting, and lack of insight which contributed to a higher degree of impairment from his service-connected psychiatric disability. His relationship foundered, and he lost his housing. From that point forward, care providers regularly commented on his poor insight and judgment. While other symptomatology improved at times, his "anxiety and persistent lack of insight" rendered him "highly dysfunctional." His complaints of worsening, and finding of "constant" despair and despondency, were affirmed in July 2007. Though he appears to have reunited with his "wife," he had fewer activities and expressed depression and discouragement. The examiner in fact commented that disability appeared to have increased based on examination and the record as a whole. The June 2010 VA examiner then identified the Veteran's MDD as causing moderate to severe occupational and interpersonal impairment. He began to experience obsessional rituals, such has frequent hand washing, and he described instances of near-continuous depression. The June 2010 VA examiner essentially indicated that the Veteran would have difficulty in adapting to a stressful work environment. He assigned a GAF of 55, which as noted above, represents moderate symptoms and moderate impairment of occupational and social functioning. Although the Veteran is not currently working, the evidence does not demonstrate that his depressive disorder has been manifested by total occupational and social impairment due to such symptoms as grossly inappropriate behavior; persistent danger of hurting self or others; an intermittent ability to perform activities of daily living; or disorientation to time or place-a degree of severity which would warrant a 100 percent rating. The Board acknowledges that TDIU benefits were awarded, beginning June 24, 2010, but this award was based on total industrial impairment due to both his mental and physical disabilities. Furthermore, even if total occupational impairment was conceded, the greater weight of the evidence does not reflect total social impairment. As discussed above, the Veteran is severely socially isolated, as contemplated by his 70 percent rating; however, he nevertheless was able to maintain a long term relationship with a life partner during much of the period under consideration in this appeal. Finally, he has consistently denied any suicidal or homicidal ideation throughout the appeal period. As such, the evidence does not show the Veteran is in persistent danger of hurt himself or others. In summary, the Veteran did not have the degree of deficiencies in social and occupational functioning as contemplated for a 70 percent rating, prior to August 21, 2006, or total social and occupational impairment as contemplated for a 100 percent rating at any time thereafter. He certainly did have deficiencies in these areas, but the greater weight of evidence demonstrates that it was to a degree no more than contemplated by the 50 percent rating assigned prior to August 21, 2006, and a 70 percent rating for the period following. The Board finds that the Veteran did not meet the requirements for an evaluation greater than the 50 percent schedular rating prior to August 21, 2006. The Board additionally finds that the evidence of record supports assignment of an increased 70 percent evaluation from the earlier date of August 21, 2006. However, at no time is a Schedular evaluation in excess of 70 percent warranted. Although the Veteran had some of the criteria for a 70 and 100 percent rating in different timeframes on appeal, see Mauerhan, 16 Vet. App. at 442, the Board concludes his overall level of disability did not merit evaluations in excess of those assigned herein. Further, given the wide variation in GAF scores over the appellate period, waxing and waning between examiners despite fairly consistent descriptions of symptoms and impairments within the respective stages, they are not considered a reliable reflection of the disability level. The actual reported symptoms and manifestations repeatedly noted in the record and discussed above were considered and given greater weight than the GAF scores. Again, in determining that ratings in excess of 50 percent and 70 percent, respectively, are not warranted, the Board has considered the Veteran's complaints regardless of whether they are listed in the rating criteria, but concludes that the Veteran's level of social and occupational impairment does not warrant a rating in excess of the 50 and 70 percent ratings current assigned. Extraschedular Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. 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 a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 evaluate 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 evaluations for the service-connected depressive disorder are inadequate. A comparison between the level of severity and symptomatology of the Veteran's depressive disorder with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology for the timeframes on appeal. As discussed above, the criteria relied upon to assign a 50 percent rating prior to August 21, 2006, and in excess of 70 percent thereafter are adequate to fully compensate the Veteran for his symptoms. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. TDIU The Veteran contends that prior to June 24, 2010, his service-connected disabilities were so severe that he was unable to obtain or retain substantially gainful employment. The Veteran has indicated that he used to be a truck driver and quit that job in the 1990s because of his back disability. Of note, the Veteran was awarded TDIU, effective June 24, 2010. As such the issue on appeal is limited to entitlement to TDIU prior to June 24, 2010. In accord with the decision above, the Veteran's depressive disorder was rated as 50 percent disabling prior to August 21, 2006, and 70 percent thereafter; his back disability was rated as 10 percent prior to October 17, 2007, and 20 percent thereafter. Prior to August 21, 2006, the Veteran combined rating was 60 percent. From August 21, 2006, to October 17, 2007, the combined rating was 70 percent. Thereafter the combined rate was 80 percent. Therefore, the Veteran's service-connected disabilities do not meet the percentage rating standards for TDIU prior to August 21, 2006. 38 C.F.R. § 4.16(a). However, the threshold issue under either 38 C.F.R. § 4.16(a) or (b) is whether the Veteran is actually unemployable, meaning unable to obtain or retain substantially gainful employment. The question of unemployability is a factual determination. Although the finding should be informed by the opinions of medical professionals, the final determination must be based on the functional capacities associated with the service connected disability. Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (stating that " '[i]t is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present'" (quoting 38 C.F.R. § 4.2 (2006))). Again, factors to be considered include, but are not limited to, employment history, educational achievement, and vocational attainment. Age is not a factor. 38 C.F.R. §§ 3.341, 4.16. The Veteran reports on his VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, that he completed three years of high school. Relevant treatment records note that the Veteran is functionally illiterate. He has not reported any specialized or vocational training in addition. His last employment ended in March 1992. Prior to that time, he worked as a truck driver. A review of his SSA records show that he was seeking SSA disability benefits because of a cervical spine disability, low back disability (service connected), left upper extremity radiculopathy, torn meniscus of the left knee, Baker's cyst of the left leg, unequal limb length, left inguinal hernia, and myofascial pain syndrome. The SSA findings referenced these disabilities as "medically determinable impairments" and that each alone would not render him unemployable, but together they are severe. Of note, the SSA specifically excluded the Veteran's mood disorder due to medical condition as a medically determinable impairment. In October 2005, the SSA found that the Veteran's statements related to his disability were not credible and he was not considered disabled for SSA purposes. The SSA judge opined that the Veteran can perform his "past relevant work," and SSA disability benefits were denied. The Board is not bound by SSA's findings, but has considered the SSA's findings in reaching this decision. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (VA is not bound by the findings of disability and/or unemployability made by other agencies, including SSA); see also Martin v. Brown, 4 Vet. App. 136, 140 (1993) (while a SSA decision is not controlling for purposes of VA adjudication, it is "pertinent" to a veteran's claim). Further, the Board notes that VA has already recognized the psychiatric disorder as a disability, and the current appeal involves a period after that considered by SSA. Having reviewed the record, the Board finds that an earlier effective date of August 21, 2006, is warranted for the grant of TDIU. As is discussed above, the Veteran began displaying increased depression and decreased judgment and insight as of that date, warranting assignment of an increased 70 percent evaluation. Examiners and treating doctors began to note the Veteran's increased difficulty with dealing with people, particularly with regard to accepting responsibility and dealing with others. However, the functional capacity reflected by the clinical findings in treatment and examination reports indicate that prior to August 21, 2006, the Veteran was capable of performing substantially gainful employment. He has repeatedly stated that he can generally perform his daily activities, and VA examiners and treatment professionals did not find that his depressive disorder or low back disability rendered him unemployable. He was functioning well with others prior to August 2006, maintaining his relationship and friendships. While doctors prior to August 2006 recognized there would be some impact on occupational functioning from depression, they also noted that his condition only affected some aspects of employment, or some forms. All employment was not unavailable. In short, the Board notes there is no medical professional who has suggested that prior to August 21, 2006, the Veteran was unable to maintain and follow substantially gainful employment as a result of his service-connected disabilities. The Board also cannot identify any symptoms or manifestations of his depressive disorder or lumbar spine disabilities that suggests that they outside the norm in either their nature or severity so as to render him totally unable to maintain or follow employment. Although the Veteran can certainly describe symptoms and the difficulties caused by his disability, the Board finds his assertion that such symptomatology was so severe as to render him unemployable for that time frame particularly problematic in light of the objective findings of record that specifically analyzed occupational impairment as a rating criteria for his depressive disorder. As outlined above, in Van Hoose, 4 Vet. App. at 363, the Court noted, The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16(a) (1992). In this case, there is simply no evidence of unusual or exceptional circumstances to warrant referral for extra-schedular consideration of a total disability rating based on the Veteran's service-connected disabilities for the timeframe prior to August 21, 2006. The Veteran has documented occupational impairment with reduced reliability and productivity, and these symptoms are the basis for the 50 percent rating assigned prior to August 21, 2006. Additionally, his painful/limited motion and other functional limitations of his low back disability are the basis for a 20 percent rating. Given the above, although the Board does not doubt that the Veteran's service-connected depressive disorder and low back disability had some effect on his employability prior to August 21, 2006, the preponderance of the evidence does not support his contention that his service-connected disabilities were of such severity as to preclude him participation in any form of substantially gainful employment. Indeed, the most credible lay and medical evidence of record clearly demonstrates that the Veteran's service-connected disabilities did not preclude some form of employment before August 21, 2006. It was not until factors such as the loss of housing, or difficulty in day treatment, or inability to accept responsibility increased that the Veteran became unemployable. Accordingly, in the absence of any evidence of unusual or exceptional circumstances beyond what is contemplated by the assigned schedular disability evaluations, the preponderance of the evidence is against the Veteran's claim that he was precluded from securing substantially gainful employment solely by reason of his service-connected disabilities or that he was incapable of performing the physical acts required by employment due solely to his service-connected disabilities, prior to August 21, 2006, even when his disabilities are assessed in the context of subjective factors such as his occupational background and level of education. In sum, the evidence of record establishes that the Veteran is entitled to TDIU from the earlier effective date of August 21, 2006. Prior to that date, the Veteran's service-connected disabilities did not prevent him from obtaining or retaining substantially gainful employment. ORDER A disability rating in excess of 50 percent, prior to August 21, 2006, for depressive disorder is denied. An increased disability rating of 70 percent, but no higher, from August 21, 2006, to June 24, 2010, for depressive disorder is granted. A disability rating in excess of 70 percent, since June 24, 2010, for depressive disorder is denied. Entitlement to TDIU is granted from the earlier effective date of August 21, 2006. ______________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs