Citation Nr: 1316241 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 09-37 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an increased evaluation for major depression, currently evaluated as 50 percent disabling. 2. Entitlement to a total evaluation based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from October 1986 to October 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In that rating decision, the RO denied an increased evaluation for major depression and continued a 30 percent disability evaluation. During the pendency of the appeal, in a June 2011 Supplemental Statement of the Case (SSOC) that was effectuated by a June 2011 rating decision, the RO increased the evaluation for the Veteran's service-connected major depression to 50 percent effective on May 21, 2008. Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the claim remains on appeal. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in the paperless claims file reveals a June 2011 rating decision by the RO that is pertinent to the appeal. The remaining documents are either duplicative of the evidence in the paper claims file or they are irrelevant to the issue on appeal. The issue of entitlement to TDIU is 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. For the period on appeal, the Veteran's major depression has been productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. 2. The Veteran's major depression has not resulted in total occupational and social impairment. CONCLUSION OF LAW The criteria for an increased evaluation of 70 percent for major depression have been approximated for the period on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.130, Diagnostic Code 9434 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided the Veteran with notice in May 2008, prior to the initial decision on the claim in August 2008. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. Specifically, the May 2008 letter informed the Veteran of what evidence was needed to substantiate her claim and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and all identified and available post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with the claim. The Veteran has not identified any other outstanding records that are pertinent to the issue currently on appeal. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran was afforded VA mental disorders examinations in August 2008 and February 2011 in connection with her claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations are adequate to decide the case because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, as well as her lay assertions and current complaints, and they describe the service-connected major depression disability picture in detail sufficient to allow the Board to make a fully informed determination. Id. There is also no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected major depression since she was last examined. 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. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). VA has further assisted the Veteran and her representative throughout the course of this appeal by providing them with a Statement of the Case (SOC) and a Supplemental Statement of the Case (SSOC), which informed them of the laws and regulations relevant to the Veteran's claim. The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of her claim, and she did, in fact, participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the particular claim on appeal. She has been given ample opportunity to present evidence and argument in support of her claim. All relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained, and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Laws and Regulations Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, as in this case, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, the question for consideration is a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434, a 30 percent rating for major depressive disorder will be assigned where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss. 38 C.F.R. § 4.130, Diagnostic Code 9434. A 50 percent rating will be assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideations; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and the inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. However, the symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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, 442 (2002). In Vazquez-Claudio v. Shinseki, __ F.3d ___, No. 2012-7114 (Fed.Cir. April 8, 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126 (2012). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. That portion of the rating schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "the DSM-IV"). 38 C.F.R. § 4.130 (2012). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health illness. Higher scores correspond to better functioning of the individual. GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994). A GAF score ranging 41 to 50 is contemplated for serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning. A GAF score between 31 and 40 reflects some impairment in reality testing or communication (e.g. speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. Factual Background and Analysis In a February 1994 rating decision, the RO granted service connection for major depression secondary to service-connected irritable bowel syndrome and assigned a 30 percent disability evaluation effective on November 19, 1992. In May 2008, the Veteran submitted an informal claim for an increased evaluation for her service-connected major depression. In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that time frame. See 38 U.S.C.A. § 5110 (West 2002). During October 2007 and January 2008 VA mental health treatment, the Veteran reported that she was "stable" from a mental health standpoint. She indicated that her mood and anxiety symptoms were well contained on her current dose of Paroxetine. Mental status examinations revealed that the Veteran was casually dressed and demonstrated good hygiene. She was cooperative and provided the examiner goal-directed responses. She made good eye contact, and her speech was within normal limits in tone and prose. She denied any suicidal or homicidal plans, auditory or visual hallucinations, paranoia, psychosis, and mania or hypomania. Her affect was appropriate to content, and she was alert and oriented. She denied any change in her cognitive functioning. GAF scores of 55 were assigned on both dates. In a January 2008 VA primary care note, the Veteran reported that she was doing well and had no recurrent depressive symptoms. She was continuing to follow-up with mental health care providers and taking Paxil with good effects. An April 2008 VA mental health treatment note documented identical findings to the October 2007 and January 2008 notes. The Veteran continued to report that her mental health was stable, her mood and anxiety symptoms were well-controlled, and she wanted to continue taking her prescribed dosage of Paroxetine. A GAF score of 55 was assigned. During May 2008 VA mental health treatment, the Veteran reported that she was under a lot of stress after undergoing emergency surgery to remove a portion of her colon. She related that her major depressive symptoms became markedly worse with her new health issues. She stated that work was challenging, and she did not think that she could take time off of work due to financial issues. She indicated that she wanted to remain on her prescribed dosage of Paroxetine, but she would consider medication changes if her symptoms persisted or progressed. She felt that she tolerated Paroxetine well and benefited from it. A mental status examination revealed similar findings to previous VA mental health treatment note findings; however, the Veteran reported increased dysphoria and anxiety associated with recent significant medical stresses. The examiner also noted that the Veteran's affect was constricted. A GAF score of 49 was assigned. In June 2008 and September 2008 VA mental health treatment notes, the Veteran reported that she was recently diagnosed with metastatic endometrial stromal sarcoma. She underwent surgery, including an oopherectomy and removal of additional tissue. The psychiatrist noted that the Veteran was coping adequately, despite significant stress. Again, the Veteran indicated that she wanted to remain on her prescribed dosage of Paroxetine, but she would consider medication changes if her symptoms persisted or progressed. Mental status examinations were consistent with findings documented in the May 2008 note. GAF scores of 49 were assigned. During an August 2008 VA examination, the Veteran reported that, over the last several years, her depressive symptoms had dramatically increased, particularly in the past two months. She noted that she was diagnosed with metastatic cancer two months ago and indicated that her depression had worsened since that time. She reported that she took Paxil for the past seven years and that it slowed her cognitive functioning, but she found the medication very helpful in managing her chronic anxiety symptoms and she was reluctant to stop taking it. She related that she worked full-time for the United States Postal Service for 15 years as a mail handler in a "very stressful work environment" where her work was closely scrutinized. She reported that she had difficulty working over the past two months and that she had increased absenteeism and diminished work quality as a result of her symptoms. She reported that she felt physically and emotionally exhausted by the time she arrived at work, and even though her job involved simple tasks, she often made mistakes. The Veteran reported having pervasive dysphoria, anhedonia, decreased energy, increased appetite and weight gain, and feelings of worthlessness and hopelessness. She indicated that Paxil controlled her anxiety and panic symptoms "fairly well." She related that she continued to experience approximately two anxiety episodes per year that involved heart palpitations, sweating, dizziness, feeling faint, fear of dying, fear of loss of control, and hot flashes. She noted the episodes were untriggered and lasted approximately 10 minutes. She denied having any suicidal urge, intent, or plan. She also denied experiencing auditory or visual hallucinations. The examiner noted that the Veteran was casually, but appropriately dressed and adequately groomed. She was pleasant and cooperative, and the examiner noted that she appeared to be truthful and reliable. A mental status examination revealed some psychomotor slowing. Her speech was normal in rate and volume; she was alert and oriented; she was free from any gross signs of cognitive impairment; and, her insight and judgment were adequate. Her thought form was lucid and coherent, and it was not tangential or circumstantial. There was no evidence of any psychotic thought process. Her thought content was marked by feelings of worthlessness and hopelessness relative to her current medical issues. She was not obsessional or delusional, and her affect was full in range and the content was appropriate. She denied any past or present suicidal or homicidal ideation, urge, intent, or plan. The examiner opined that the Veteran was "suffering from significant difficulties in the area of occupational functioning." She further opined that the Veteran's occupational dysfunction was significant enough to render her unemployable. A GAF score of 49 was assigned. In an October 2008 VA mental health treatment note, the Veteran reported experiencing intermittent panic symptoms. She was prescribed benzodiazepines to take as needed when she had these symptoms. The psychiatrist opined that the Veteran was continuing to adequately cope with her symptoms, despite significant stress. A mental status examination was consistent with previous findings, and a GAF score of 49 was assigned. In a statement received in December 2008, the Veteran reported that she had severe depression and serious problems in relationships with men. She related that her memory was severely impaired from her prescribed psychiatric medication. She also stated that she had mild panic attacks a couple of times per day and severe panic attacks approximately every two months. The Veteran indicated that she had thoughts of suicide and noted that she did not report her worsening symptoms to her treatment providers because she had bad side effects from the current dosage of her medication. In a December 2008 VA mental health treatment note, the Veteran related that her physical health symptoms were unpredictable and that she was constantly concerned that she could have a medical event at any time, which had a negative impact on her mood. The psychiatrist opined that the Veteran continued to adequately cope with her symptoms. A mental status examination was consistent with previous findings, and a GAF score of 49 was assigned. In another December 2008 VA mental health note, the Veteran's psychiatrist noted that she had been treating the Veteran for major depressive disorder since May 2002. She stated that the Veteran had a "marked worsening" of her depressive symptoms over the past seven months due to her service-connected gastrointestinal symptoms. The psychiatrist noted that she assigned a GAF score of 55 in April 2008, which demonstrated moderate symptoms. She indicated that she assigned GAF scores of 49 since May 2008 due to the marked worsening of the depressive symptoms, which demonstrated severe symptoms. She opined that it was not expected that the severity of the depressive symptoms would improve given the impact the Veteran's other service-connected medical issues had on her mental health. In an April 2009 VA mental health treatment note, the Veteran reported that she was "stable." She stated that she was coping adequately despite ongoing stresses, and she felt that her current psychotropic medication regime was beneficial to her and she tolerated it well. A mental status examination was consistent with previous findings, except the examiner noted that the Veteran's mood was stable. A GAF score of 49 was assigned. In a June 2009 VA mental health treatment note, the Veteran reported that she recently watched a television program about military sexual trauma that caused her distress. A mental status examination was consistent with previous findings. The examiner noted that the Veteran's mood was stressed, but she was coping adequately. A GAF score of 49 was assigned. In a July 2009 statement, the Veteran reported that her depression and anxiety had increasingly worsened over the years and asserted that she was incapable of working consistently. She indicated that she was unable to perform basic functions at home and work, including cooking and cleaning. She complained that her short- and long-term memory was increasingly worse, and she stated that she was repeatedly forgetting simple tasks and requests on a daily basis at work. The Veteran noted that she had problems thinking, poor judgment, and slow reactions. She indicated that she had a difficult time functioning at work due to stress. She stated, "Many times I just cannot bring myself to go [to work] because of being under such stress there. Sometimes even after I go to work, I have to come home because there is so much tension there." She related that she had frequent panic attacks and had occasional thoughts of suicide. The Veteran related that she was irritable and had problems with her husband and extended family. She also described weight gain and indicated that she did not care about her appearance like she once did. In a statement included on an August 2009 VA Form 9, the Veteran reported that she lost substantial work hours due to her severe depression; she had problems dealing with stress at work; she made and hid consistent mistakes at work; and she was constantly forgetting short-term instructions. She also noted that she had panic attacks several times per week, occasional thoughts of suicide, memory loss, difficulty with relationships, irritability, and poor hygiene. In an August 2009 VA mental health note, the Veteran's treating psychiatrist reported that she noted a "marked worsening" of the Veteran's depressive symptoms. She reported that the symptoms caused significant distress and major impairment in multiple areas of functioning. She also indicated that the Veteran's assigned GAF score was currently 49, which reflected severe symptoms. The psychiatrist further noted that the Veteran currently worked at the post office and that the stress of employment was further exacerbating her depressive symptoms, but the Veteran felt that she had no other options because she needed the income. In an October 2009 VA mental health treatment note, the Veteran reported that her memory had improved. A mental status examination revealed findings consistent with previous findings. The examiner noted that the Veteran was stressed, but coping adequately. A GAF score of 49 was assigned. During November 2009, December 2009, and February 2010 VA mental health treatments, the Veteran discussed ongoing stresses in light of her health issues, including employment stress. Mental health status examinations revealed findings consistent with previous findings. The examiner noted that the Veteran was stressed, but coping adequately. GAF scores of 49 were assigned. In April 2010 and October 2010 VA mental health treatment notes, the Veteran reported that she was "generally stable" despite ongoing stress. She felt that her mood and anxiety symptoms were well contained. Mental status examinations revealed findings consistent with previous findings. The examiner noted that the Veteran was stressed, but coping adequately. GAF scores of 49 were assigned on both dates. In a February 2011 statement, the Veteran reported that her depressive symptoms had increased over the years. She stated that her depression had not worsened due to any event in particular in 2008. She related that her depression became a major problem in her everyday life and impacted her daily functioning at work. During a February 2011 VA mental disorders examination, the Veteran reported that her psychiatric symptoms had worsened in severity since her previous VA examination in 2008. She indicated that she dealt with anxiety and depressive symptoms every day. She stated that she had difficulty getting out of bed and noted that her symptoms were causing problems with her family. She remained in treatment with her treating VA psychiatrist, and she continued to take Paroxetine and Clonazapam as prescribed "with limited benefit." The Veteran reported that she was currently employed as a mail handler for the United States Post Office. She was employed by the post office for the past 17 years. She related that she missed a significant amount of time over the past year, specifically one to two days per week, due to her depression and anxiety. She stated, "I can't get out of bed or sometimes I have to leave." Additionally, she reported that she was forgetful while performing occupational tasks, made mistakes, and her coworkers got upset with the amount of time it took her to complete certain jobs. The examiner described the Veteran's work history as "poor" due to her symptoms and level of impairment in overall functioning. The Veteran reported that she had been married for 15 years. She described her relationship with her spouse as "not so good." She stated that she had lots of problems with her husband. He became angry because she did not do things around the house or take care of their three children. She stated that they rarely went out to dinner or left the house despite his attempts. She denied having any friends, but she expressed interest in developing friendships. She only spent time with immediate family members, including holidays with her brother and father. She denied enjoying any social activities or engaging in any leisure pursuits. A mental status examination revealed slightly slowed psychomotor activity. The examiner noted that the Veteran's rate and flow of speech were slowed. She reported that the Veteran was dressed in sweat pants, a dirty shirt, and an oversized coat, and that her hair was not brushed. The Veteran reported some difficulty completing daily tasks of living, including showering on a daily basis. She stated that her husband often had to remind her to complete these tasks. She reported that she showered every other day on average and that she ate and brushed her teeth on a regular basis. The Veteran's thought process was linear, and she was oriented to person, place, and time. She denied experiencing any auditory or visual hallucinations or other symptoms consistent with psychosis. Her behavior was appropriate. The Veteran reported experiencing recurrent, passive "death thoughts" and feelings of worthlessness on a daily basis. She denied any current suicidal ideation, plans, or intent, but she described a long-standing history of suicidal thoughts without plan or intent. She denied ever experiencing homicidal thoughts, ideation, plans, or intent. The Veteran also indicated that she had significant memory problems. She was able to provide correct responses on serial 3's and name the months of the year in reverse order, but she experienced difficulty recalling the names of United States presidents in reverse order. She denied performing obsessive or ritualistic behavior that interfered with routine activities. The Veteran reported that she checked doors and windows repeatedly because she forgets if she locked them, but she indicated that the ritual did not interfere with her daily activities. She also acknowledged having unexpected panic attacks and reported that she had heart palpitations, shortness of breath, sweating, and feeling faint. She stated that the attacks peaked quickly and that she had several attacks a week ("almost daily"). The Veteran also reported that, during the past two weeks, she experienced a depressed mood nearly every day. She rated the severity of her depression as 8 out of 10 and described a near complete loss of interest in almost all activities. She stated that she gained 20 pounds over the past year, took her approximately an hour to fall asleep, woke at least three times per night, and had decreased energy. The examiner opined that the Veteran's depressive symptoms negatively impacted her ability to complete household and work-related tasks and social and interpersonal functioning. The examiner assigned a GAF score of 42, which suggested serious severity and impairment. In a March 2011 VA mental health treatment note, the Veteran reported feeling dysphoric and anxious. A mental status examination revealed that she was casually dressed and demonstrated good hygiene. She was cooperative; her speech was within normal limits; she made good eye contact; and, she provided goal-directed responses. She denied suicidal or homicidal plans, auditory or visual hallucinations, paranoia, psychosis, and mania or hypomania. The examiner noted that the Veteran had some increase in dysphoria, but indicated that she was coping adequately. Her affect was constricted, but she was alert and oriented, and she denied any change in her cognitive functioning. A GAF score of 47 was assigned. The foregoing evidence indicates that the Veteran warrants a 70 percent rating, but no higher, for her service-connected major depression for the period on appeal. A 70 percent rating is warranted where the Veteran demonstrates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. The Veteran has been shown to have suicidal ideation, near continuous panic or depression affecting her ability to function, and the neglect of personal appearance and hygiene. As to occupational impairment, the Veteran reported that she had worked for the United States Postal Service for 17 years as a mail handler. Throughout the period on appeal, she complained that she had difficulty functioning at work due to stress, difficulty thinking, short- and long-term memory problems, poor judgment, and slow reactions. In an August 2009 VA mental health note, the Veteran's treating psychiatrist noted that the stress of employment was further exacerbating the Veteran's depressive symptoms, but she needed to continue working for the income. During the February 2011 VA examination, the Veteran related that she missed a significant amount of time over the past year, specifically one to two days per week, due to her depression and anxiety. She stated, "I can't get out of bed or sometimes I have to leave." Additionally, she reported that she was forgetful while performing occupational tasks, made mistakes, and her coworkers got upset with the amount of time it took her to complete certain jobs. The examiner described the Veteran's work history as "poor" due to her symptoms and level of impairment in overall functioning. Additionally, the August 2008 VA examiner opined that the Veteran was suffering from significant difficulties in the area of occupational functioning and that her occupational dysfunction was significant enough to render her unemployable. As to social impairment, during the February 2011 VA examination, the Veteran indicated that she had no friends and noted that she only socialized with immediate family members. She also indicated that her relationship with her spouse was "not so good" and that they rarely left the house. Based on the foregoing, and resolving any reasonable doubt in favor of the Veteran, the Board concludes that the Veteran is entitled to a 70 percent evaluation for her major depression. The Board has also considered whether the Veteran is entitled to an evaluation in excess of 70 percent for her major depression. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. As previously noted, the record indicates that the Veteran does have occupational impairment; however, the Veteran she has remained employed by the United States Postal Service for over 17 years. Thus, the evidence does not suggest that the Veteran has total occupational impairment due to her major depression. As to social impairment, the Veteran indicated that she had no friends, yet she did report socializing with immediate family members. She also remained married to her husband, despite their difficulties. Thus, while the Veteran may have had some social impairment, the evidence shows that he was able to establish and maintain some relationships, which does not establish total social impairment. After considering the evidence of record, the Veteran's symptoms more closely approximate the criteria for the currently assigned 70 percent disability rating. Overall, the Veteran has not demonstrated a level of impairment consistent with the 100 percent criteria, nor have the Veteran's symptoms caused total occupational and social impairment. Mauerhan, supra, Vazquez-Claudio, supra. The evidence also shows that the Veteran does not have persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or, memory loss for names of close relatives, own occupation, or own name. Thus, the criteria for the next higher rating of 100 percent have not been met or approximated for any period in this appeal. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board does observe that the Veteran has been assigned a Global Assessment of Functioning (GAF) score between 42 and 55. A GAF score ranging from 41 to 50 is contemplated for serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning. A GAF score between 51 and 60 reflects moderate symptoms (e.g. flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning. See 38 C.F.R. §§ 4.125, 4.130 (incorporating the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, of the American Psychiatric Association in the rating schedule). While the Board has considered the degree of functioning as evidenced by these reported scale scores, they are but one factor for consideration in assigning a rating in this case. As outlined above, the Board finds that when all of the evidence and findings contained therein are considered, including the degree of functioning as evidenced by these reported scales, the Board concludes that the Veteran has not been shown to have total occupational and social impairment. Accordingly, the Board finds that the schedular criteria for the next higher 100 percent disability evaluation have not been met. Therefore, the Board finds that the preponderance of evidence is against an initial evaluation in excess of 70 percent for major depression. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's major depression disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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 and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, which includes anxiety, depressed mood, sleep impairment, panic attacks, suicidal ideation, and neglect of personal appearance and hygiene. Indeed, the 70 percent evaluation contemplates the overall effect of all of her symptomatology on his occupational and social functioning. As discussed above, there are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected major depression under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An evaluation of 70 percent for major depression is granted, subject to the controlling regulations applicable to the payment of monetary benefits. REMAND The Court has held that, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, in the August 2008 VA mental disorders examination, the VA examiner opined that the Veteran was suffering from significant difficulties in the area of occupational functioning and her occupational dysfunction was significant enough to render her unemployable. Additionally, in a July 2009 statement, the Veteran reported she was "incapable" of working consistently due to her service-connected major depression and anxiety. Therefore, the RO should develop a claim for TDIU in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following action: The RO/AMC should consider whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to her service-connected disabilities, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). In so doing, the RO/AMC may decide to pursue further development of the Veteran's employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary. 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). 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). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs