Citation Nr: 1317862 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 97-32 220 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to a rating in excess of 70 percent for recurrent major depression for the period from October 16, 2003 to May 31, 2009. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his friend (E.M.) ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active military service from January 1973 to December 1974. This appeal before the Board of Veterans' Appeals (Board) arises from a December 1996 rating decision in which the RO denied a rating in excess of 30 percent for the Veteran's service-connected psychophysiological reaction, characterized as irritable bowel syndrome (IBS) with a history of duodenal ulcer. A review of the Virtual VA claims processing system reveals VA treatment records dated through May 2012; however, these records are either duplicative of those contained in the claims file or not relevant to instant to the claim on appeal. A brief explanation of the procedural history of this appeal is necessary. Under the former criteria in effect prior to November 7, 1996, the Veteran's psychophysiological gastrointestinal reaction was evaluated pursuant to the criteria of former Diagnostic Code (DC) 9502, for psychological factors affecting gastrointestinal condition. See 38 C.F.R. § 4.132 (1995). Note (2) under former DC 9502 provided that when two diagnoses, one organic and the other psychological or psychoneurotic, are presented covering the organic and psychiatric aspects of a single disability entity, only one percentage evaluation will be assigned under the appropriate diagnostic code determined by the rating board to represent the major degree of disability. Hence, in a January 1995 rating decision, the RO determined that the Veteran's gastrointestinal disorder was the predominant disability, and recharacterized it as IBS with history of duodenal ulcer. The RO then assigned a 30 percent disability under DC 7319, for irritable colon syndrome. See 38 C.F.R. § 4.114 (1995). In August 1996, the Veteran filed a claim for an increased rating, stating that there was a psychological aspect to his disability that had not been considered in his previous evaluation. In the December 1996 rating decision at issue on appeal, the RO denied a rating in excess of 30 percent for IBS under DC 7319. The RO noted that the Veteran had been diagnosed with bipolar disorder, but did not otherwise address the psychological factors affecting IBS. In the March 1997 notice of disagreement (NOD), the Veteran argued that his service-connected disability should be evaluated under the criteria used to rate major depression and anxiety disorders instead of IBS. In March 1998, the Veteran and his friend testified during a hearing held before RO personnel. A transcript of that hearing is of record. In an April 2003 rating decision, the RO assigned a separate 30 percent rating for a psychiatric disability (then characterized as major depression), effective November 7, 1996. This decision was based on the provision in the revised criteria, authorizing separate ratings for psychophysiological gastrointestinal disability and for psychiatric disability, under the appropriate criteria for evaluating each such disability. On appeal, in July 2003, the Board denied a higher rating for the Veteran's service-connected gastrointestinal disorder, but did not address the evaluation of his psychiatric disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In the interim, in a May 2005 rating decision, the RO granted a higher, 50 percent rating for the Veteran's recurrent major depression, effective October 16, 2003. In an October 2006 single-judge Order, the Court affirmed the Board's July 2003 decision to the extent that it denied a disability rating in excess of 30 percent for the Veteran's service-connected gastrointestinal disability, and remanded the matter of a higher rating for the psychiatric disability to the Board for further proceedings consistent with the Order. In March 2009, the Board granted a 70 percent, but no higher, rating from October 16, 2003, and denied a rating in excess of 30 percent prior to that date. The Veteran appealed the Board's March 2009 decision to the Court. In March 2010, during the pendency of his appeal, his former attorney and attorneys with VA's Office of General Counsel filed a Joint Motion requesting that the Court affirm the Board's decision denying a rating in excess of 30 percent prior to October 16, 2003, but vacate the Board's decision to the extent that it denied a rating in excess of 70 percent, from October 16, 2003, and remand this matter for further action. The Court granted the Joint Motion in an Order dated later that month and returned this matter to the Board for compliance with the directives specified in the Joint Motion. In August 2010, the Board remanded the claim for a rating in excess of 70 percent for psychiatric disability, from October 16, 2003, to the RO for further action, to include the additional development of the evidence and consideration of TDIU due to service-connected psychiatric disability. After accomplishing further action, in August 2012, the RO issued a rating decision granting a 100 percent rating for recurrent major depression, effective June 1, 2009 and awarding a TDIU, effective February 4, 2005. The RO also denied a higher rating for recurrent major depression for the period from October 16, 2003 to May 31, 2009 (as reflected in the August 2012 supplemental statement of the case (SSOC)) and returned this matter to the Board for further appellate consideration. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. For the period from October 16, 2003 to May 31, 2009, the Veteran's psychiatric symptoms included a short temper, mood swings, sleep impairments, suicidal ideation, obsessional rituals (picking at his skin), near-constant depression or panic, neglect of personal appearance, difficulty adapting to stressful circumstances (including work or work like setting), and an inability to establish and maintain effective relationships; collectively, these symptoms are indicative of no more than occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 3. The schedular criteria are adequate to rate the Veteran's service-connected psychiatric disability at all points during the period from October 16, 2003 to May 31, 2009. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for recurrent major depression, for the period from October 16, 2003 to May 31, 2009, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9434 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). As for the claim on appeal for a higher rating, notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, although the RO has not furnished a letter meeting the VCAA's notice requirements specific to the matter of a higher rating for the now separately rated psychiatric disability, the Veteran is not shown to have been prejudiced by the omission of such a letter. In an October 1997 statement of the case (SOC) pertinent to the matter of a higher rating psychophysiological gastrointestinal reaction (the claim at that time), the RO also set forth the criteria for higher ratings for psychiatric disorders. Following the enactment of the VCAA, a February 2003 letter, informed the Veteran and his representative of the newly enacted VCAA, and invited the Veteran to provide any additional information or evidence in support of the claim for increase. The February 2003 letter informed the Veteran that, upon his authorization, VA would obtain records on his behalf. The April 2003 and May 2005 rating decisions set forth the reasons for the assignment of a separate disability rating under the criteria for a psychiatric disorder. Moreover, the claims file reflects that the Veteran had actual knowledge of the information and evidence necessary to substantiate his claim for higher rating (to include the matter of separate rating for psychiatric disability). In this regard, in the March 1997 NOD and correspondence received in January 1999, the Veteran and his representative argued that his psychophysiological gastrointestinal disorder included symptoms involving anxiety and depression and that these manifestations should be rated under the appropriate criteria for major depression and anxiety disorder. During the March 1998 hearing before RO personnel, the Veteran, through is representative, stated that the Veteran's symptoms included chronic sleep impairment, disturbances of motivation, suicidal ideation, suspiciousness, irritability, difficulty in establishing and maintaining social relationships, and that the Veteran was probably unemployable. The Veteran and his witness (E.M.) specifically testified as to how the Veteran's psychiatric and gastrointestinal disabilities affected his activities of daily living, including his social and work relationships. In correspondence received in January 2005, the Veteran provided a detailed history of his psychiatric symptoms, the affect on his activities of daily living, and how this disability affected his social and work relationships. He argued that he was unemployable and should be rated 100 percent disabled. In the February 2005 Appellant's Brief and Reply Brief, the Veteran's representative demonstrated actual knowledge of the rating criteria, referring to the November 1996 amendments and arguing that a claim for a separate, higher rating for a psychiatric disorder was properly before the Board. As mentioned, in the October 2006 order, the Court granted a partial remand specifically to address this issue. In a September 2008 letter, the Board informed the Veteran and his representative that the appeal had been remanded, and that he had 90 days to submit any additional argument or evidence before the claim was readjudicated. In December 2008, the Veteran responded that he did not have anything else to submit and wanted to proceed immediately with readjudication. Thus, through the Veteran's oral and written statements, he had demonstrated actual knowledge of the information and evidence needed to establish a higher rating. Consequently, any error in this regard was "cured by actual knowledge on the part of the claimant." See Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir 2007). In addition, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of the Veteran's VA outpatient treatment records, various private treatment records and the various VA examination reports. Also of record and considered in connection with the appeal is the transcript of the Veteran's Board hearing, as well as various written statements provided by the Veteran and by his representative, on his behalf. The Board finds that no further RO action on this matter, prior to appellate consideration, is required. Pursuant to the Board's August 2010 remand, in November 2010, the Veteran submitted a completed formal application for TDIU (VA Form 21-8940). In addition, the Veteran's updated VA treatment records were associated with the claims file as requested by the Board . See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Factual Background Historically, in May 1977, the RO granted service connection for a psychophysiologic gastrointestinal reaction and assigned a 10 percent disability rating. In May 1994, the Veteran filed the claim for increased rating that culminated in the matter remaining on appeal. As previously discussed, the Board's denial of a higher rating prior to October 16, 2003 was affirmed by the Court in March 2010 and an August 2012 rating decision granted a 100 percent rating for recurrent major depression, effective June 1, 2009. Therefore, the period at issue in this appeal is from October 16, 2003 to May 31, 2009. The report of the March 2003 VA examination reflects that the Veteran had two sisters and a brother and was close to one of his sisters. The Veteran reported that that he worked as a mail handler until 2000 but had left the job because of back problems and that he received disability retirement. On mental status examination, the Veteran was dressed appropriately. He was cooperative, but anxious. He was relatively logical and relevant in manner, although not always providing the best details. His memory, both remote and recent, was intact. There was no indication of a thought disorder, and he denied delusions or hallucinations. He was oriented time, person, and place. He said he had a history of impulse-control problems, but denied any current problems. He said he was depressed and had suicidal plans, but no intent. He denied homicidal ideation. He said he had anxiety and panic attacks. His predominant symptoms were depression and anxiety. The VA examiner opined that the Veteran did not fully meet the criteria for bipolar disorder. The diagnosis was major depression, recurrent, and the examiner assigned Global Assessment of Functioning (GAF) score of 54. The report of the February 4, 2005 VA examination includes a notation that the Veteran had a girlfriend with whom he had lived with since 1990. On mental status examination, the examiner noted that the Veteran was casually dressed and displayed sloppy grooming. Although he appeared clean, his clothes were wrinkled and it did not appear they had been washed in several days. The Veteran was polite and cooperative throughout the interview. He was alert and oriented to time, person, place, and situation. He did not display any deficits in thinking or memory. The Veteran stated that he was completely depressed most of the time. He said he had a short temper but denied being aggressive, destructive or violent. He said he was sometimes mad for no reason and had racing thoughts at night. He said that he had a panic attack before coming to VA for the examination. He said his appetite was poor and he had trouble sleeping. He said he had a chronic history of suicidal ideation with no intent. He also said he had homicidal ideation without intent. The Veteran said that his girlfriend managed his finances and the examiner noted this was in the Veteran's best interest given his episodes of mania and spending sprees. The February 2005 VA examiner opined that the Veteran appeared to meet the diagnosis for bipolar disorder, not otherwise specified (NOS). The examiner expressed the belief that the diagnoses of major depression and anxiety disorder, which were given in March 2003, appeared to be symptoms of the larger bipolar disorder. The examiner further opined that while the bipolar disorder was not caused by the Veteran's military service, the Veteran had his first manic episode during service in 1974. The examiner said that the Veteran appeared to be seriously impaired in his overall functioning with a chronic history of sleep disturbance, appetite disturbance, chronic depression, bouts of anxiety, and social avoidance. It was noted that the Veteran felt incapable of maintaining full-time employment. The examiner assigned a GAF score of 48. The report of the April 2005 VA examination indicates that the Veteran's girlfriend of 15 years had just moved out, that he belonged to no groups and that he was socially isolated. He reported a history of racing thoughts, that he typically slept during the day but was awake at night, and that he had a habit of picking at his skin all the time. Passing suicidal ideations without an intent to kill himself as well as a history of homicidal fantasies without an intent to carry any of them out were noted. On mental status examination, the Veteran was noted to be clean and essentially disheveled-as he was sloppily dressed, with uncombed hair-but without body odors. Speech was noted to be logical and focused while at an average rate of speed without speech impediment. He did not display any obvious deficits in thinking or memory in spite of the fact he that he described his concentration as "crappy" and that he reported being confused at all times. Mood was described as completely depressed with a short-temper and extreme mood swings of mania. The examiner noted that the Veteran was socially avoidant and extremely socially isolated and that the only significant relationship in his life was with his sister. A GAF of 40 was assigned and the examiner noted that the Veteran's functioning was majorly impaired. III. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, 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 entitlement to a higher initial rating assigned following the grant of service connection-which is analogous to this situation-evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating' (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. The RO assigned the rating for the Veteran's recurrent major depression under Diagnostic Code 9434. However, the actual criteria for ratting psychiatric disabilities other than eating disorders are set forth in a General Rating Formula. See 38 C.F.R. § 4.130. Under the General Rating Formula, a 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. Id. Psychiatric examinations frequently include assignment of a GAF score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness". There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Considering the pertinent evidence in light of the above, the Board finds that a rating greater than 70 percent rating for recurrent major depression, for the period from October 16, 2003 to May 31, 2009, is not warranted. The pertinent evidence includes contemporaneous mental health records and reports of various VA examinations. This evidence establishes that, for the period in question, the Veteran experienced such psychiatric symptoms as a short temper, sleep impairments, suicidal ideation, obsessional rituals (picking at his skin), near-constant depression or panic, neglect of personal appearance, difficulty adapting to stressful circumstances (including work or work like setting), and an inability to establish and maintain effective relationships. Collectively, these symptoms resulted in occupational and social impairment in most areas of the Veteran's life, the level of impairment contemplated in the 70 percent rating. With respect to whether the Veteran's recurrent major depression warrants the maximum 100 percent disability rating at any time pertinent to this appeal, the Board observes that the evidence does not demonstrate symptomatology which is more suggestive of total occupational and social impairment. See 38 C.F.R. § 4.130. In this regard, none of the contemporaneous records or examination reports reflect such symptoms as gross impairment in thought process or communication, and there were no obvious deficits in thinking or memory found in the February 2005 examination. He was found to be fully oriented while delusions and hallucinations were denied by the Veteran and not found on objective examination. In addition, the March 2003 VA examiner found that there was no indication of any thought disorder and that his recent and remote memories were intact. Although the February 2005 VA examiner noted that the Veteran was wearing wrinkled clothes that looked like they had not been washed in several days, he was noted to be clean and to not be giving off any notable body odor. The March 2003 VA examiner noted that the Veteran was dressed appropriately with fair activities of daily living and hygiene. In April 2005, he was noted to appear disheveled but was also clean without body odor, suggesting that he was able to maintain minimum personal hygiene. Although the Veteran reported that he had no friends and that he had not seen his brother in 15 years during a February 2005 examination, total social impairment was not demonstrated as he also reported having a girlfriend from 1990 until approximately March 2005 and that he had relationship with one of his sisters who resided locally. Total occupational impairment was not demonstrated as he reported sometimes helping his ex-girlfriend at her nursery business during the March 2003 VA examination and working at his girlfriend's greenhouse during the February 2005 VA examination. A chronic history of passing suicidal ideations without intent or a history of attempts were reported by the Veteran. In addition, he reported homicidal fantasies without intent or a history of arrests or assaults. Despite such reports of passing suicidal ideations and homicidal fantasies, the Veteran has not been found to be a persistent danger to himself or others on objective examination. Therefore, a maximum, 100 percent rating is not warranted for any period pertinent to this appeal. See 38 C.F.R. § 4.130. The Board further notes that the evidence of record reflects that the Veteran had additional symptomatology that is not enumerated in the rating criteria, to include sleep impairment, a short temper and mood swings. See Mauerhan, supra. However, the Board finds that such symptoms do not more nearly approximate the criteria for the maximum 100 percent rating under the General Rating Formula as these symptoms not of such severity or frequency to result in total occupational and social impairment. The Board further finds that the GAFs assigned in this case are consistent with no more than the 70 percent rating herein assigned. As noted, the Veteran has been assigned GAF scores that have ranged from 40 to 54. Under the DSM-IV, GAF scores ranging from 51 to 60 are 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 co-workers). Scores ranging from 41 to 50 are indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). The assigned scores are indicative of moderate or serious symptoms under the DSM-IV guidelines. Although, as noted above, the assigned GAF scores are not dispositive of the evaluation issue but must be considered in light of the actual symptoms shown (see 38 C.F.R. § 4.126(a), here, the objective findings regarding the Veteran's symptoms are consistent with an assessment of moderate to serious impairment. The highest GAF score of 54 is indicative of even less impairment than that contemplated by the 70 percent rating, and, as such, clearly provides no basis for higher rating., However, even the lowest GAF score of 40, assigned by the April 2005 examiner. suggests serious symptoms or serious impairment in social, occupational or school functioning, the assigned 70 percent rating contemplates such serious symptoms or serious impairment. Accordingly, the collective evidence supports a finding that,, for the period in question , the Veteran's recurrent major depression was characterized by symptomatology resulting in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, consistent with current 70 percent disability rating. The above determinations are based on consideration of pertinent provisions of VA's rating schedule. Additionally, the Board finds at no point pertinent to the period under consideration was the Veteran's recurrent major depression shown to be so exceptional or unusual to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (cited in the April 2003 SSOC). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, 22 Vet. App. 111. In this case, the Board finds that schedular criteria are adequate to rate the Veteran's recurrent major depression at all times pertinent to this appeal. As discussed above, the Veteran's predominant subjective and objective psychiatric symptoms impact his overall social and occupational functioning. A comparison between the Veteran's symptoms and the criteria of the rating schedule indicates that the rating criteria reasonably describe his level of impairment for the period in question. Further, as noted, the rating schedule provides for assignment of a higher rating based on evidence demonstrating more severe impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As a final point, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which a higher rating is sought, then part and parcel to that claim for a higher rating is the matter of whether a TDIU for the disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran has been awarded a TDIU, effective February 4, 2005, However, for the pertinent period prior to that date (here, from October 16, 2003 to February 3, 2005), the Veteran has not asserted, and the record does not reflect, that he was unemployable due to psychiatric disability. During the March 2003 examination, the Veteran reported that he sometimes helped his ex-girlfriend with her nursery business; he also reported that he had left his last employment as a mail handler due to his nonservice-connected back disorder. As there is no suggestion that the Veteran was unable to obtain or maintain employment due to his service-connected disabilities, the matter of the Veteran's entitlement to a TDIU due to psychiatric disability has not been raised, and need not be addressed. For all the foregoing reasons, the Board finds that, there is no basis for staged rating for the Veteran's recurrent major depression, pursuant to Fenderson, for the period from October 16, 2003 to May 31, 2009, and that the claim for higher rating for this period must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 70 percent for recurrent major depression for the period from October 16, 2003 to May 31, 2009 is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs