Citation Nr: 1317952 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 12-09 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for major depressive disorder (also claimed as agoraphobia and posttraumatic stress disorder (PTSD)) from November 1, 2010 to April 28, 2011, and from September 1, 2011. 2. Entitlement to service connection for a left ankle condition secondary to hypothyroidism. 3. Entitlement to a total disability rating based in individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: Allen Gumpenberger, Agent ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from November 1988 to May 1991. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut, which, in pertinent part, granted a 50 percent disability rating effective November 1, 2010, denied service connection for a left ankle condition, and denied a TDIU. Further, a temporary 100 percent evaluation was assigned for major depressive disorder from September 20, 2010 to November 1, 2010 and from April 28, 2011 to September 1, 2011. See rating decisions dated April 2011, May 2011, and March 2012. The temporary 100 percent evaluations were granted due to hospitalization and admission into transitional housing. See 38 C.F.R. § 4.29 (2012). Please note that the Veteran's appeal has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The claim for a TDIU under 38 C.F.R. § 4.16(b) is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. For the initial rating period on appeal (November 1, 2010 to April 28, 2011 and from September 1, 2011), the Veteran's major depressive disorder has been characterized by nightmares, depressed mood, anxiety, hyperarousal, increased startled response, loss of interest, symptoms of agoraphobia, and occupational and social impairment with reduced reliability and productivity. 2. For the initial rating period on appeal (November 1, 2010 to April 28, 2011 and from September 1, 2011), the Veteran's major depressive disorder has not been characterized by 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships. 3. The Veteran is not service-connected for hypothyroidism. CONCLUSIONS OF LAW 1. For the initial rating period on appeal (November 1, 2010 to April 28, 2011 and from September 1, 2011), the criteria for an initial disability rating in excess of 50 percent for major depressive disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9434 (2012). 2. The criteria for service connection for a left ankle condition secondary to hypothyroidism have not been met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify a veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the veteran about the information and evidence necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. VCAA notice should be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this case, VCAA notice letters sent in October 2010 and November 2010 satisfied the provisions of 38 U.S.C.A. § 5103(a). In the October 2010 letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the service connection claim; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; and the information required by Vazquez-Flores. The November 2010 letter informed the Veteran about the information required to substantiate a claim for secondary service connection. The claim for an initial rating in excess of 50 percent for major depressive disorder arises from the Veteran's disagreement with the initial evaluation assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). The Board finds that all necessary assistance has been provided to the Veteran. In April 2011, the RO provided the Veteran with VA psychiatric examination to assist in determining the extent of the Veteran's major depressive disorder. As the examination reports were written after an interview with the Veteran, and contained specific findings indicating the nature of the Veteran's major depressive disorder disability and symptomatology, the VA examination is adequate for VA purposes, and there is no duty to provide an additional examination or medical opinion for this claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, VA psychiatric treatment records, and statements from the Veteran. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained; hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability Rating Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing a veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a veteran's disability. Schafrath, 1 Vet. App. at 594. 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). If the appeal is from the initial rating assigned with the grant of service connection, the possibility of "staged" ratings for separate periods during the appeal period, based on the facts found, must also be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Initial Rating for Major Depressive Disorder An April 2011 rating decision granted a 50 percent disability evaluation for major depressive disorder effective November 1, 2010. In the same rating decision, the RO granted a temporary 100 percent evaluation from September 20, 2010 to November 1, 2010 due to hospitalization related to the Veteran's psychiatric symptoms. A May 2011 rating decision granted another temporary 100 percent evaluation from April 28, 2011 to September 1, 2011 due to admission into transitional housing; thus creating a "staged" rating. The Veteran contends that his symptoms associated with major depressive disorder warrant a higher rating in excess of 50 percent from November 1, 2010 to April 28, 2011 and from September 1, 2011. Diagnostic Code 9434 addresses major depressive disorder. Under that code, a 50 percent rating for major depressive disorder is appropriate 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. A 70 percent rating for major depressive disorder is provided for 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. A 100 percent rating for major depressive disorder is provided for total occupational and social impairment, due to such symptoms as: Gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. §§ 4.125-4.130 (2012). To adequately evaluate and assign the appropriate disability rating to the Veteran's service-connected psychiatric disability, the Board must analyze the evidence as a whole, including the Veteran's Global Assessment of Functioning (GAF) scale scores and the enumerated factors listed in 38 C.F.R. § 4.130, Diagnostic Code 9411. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002) (holding that "the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in Diagnostic and Statistical Manual of Mental Disorders, 4th ed (DSM-IV). GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32) (hereinafter DSM- IV). In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DSM- IV. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. Id. Within the DSM-IV, Global Assessment Functioning (GAF) scale scores ranging from 1 to 100 reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter, 8 Vet. App. at 242; see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). GAF scores from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., a depressed patient who avoids friends, neglects family, and is unable to do work). DSM-IV at 46-47. VA treatment notes reveal that the Veteran was hospitalized for treatment for major depressive disorder from September 20, 2010 to October 19, 2010. While receiving treatment, the Veteran was diagnosed with major depressive disorder with panic disorder and agoraphobia. Insight and judgment were deemed fair and the Veteran did not report suicidal or homicidal ideations. The Veteran was discharged from the hospital on October 19, 2010 with a GAF score of 40, indicative of some impairment in reality testing or communication (e.g., speech which is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., a depressed patient who avoids friends, neglects family, and is unable to do work). See DSM-IV at 46-47. The evidence of record includes an April 2011 VA psychiatric examination where the Veteran reported feelings of depression, lack of interest, fatigue, anxiety, increased startled response, hyperarousal, past thoughts of suicide, and symptoms of agoraphobia. Upon mental status examination, the VA examiner reported that the Veteran was alert and oriented in all spheres. He was appropriate and cooperative throughout the examination. The Veteran was well groomed, and appeared to have good hygiene. He exhibited good eye contact, was polite, and speech was negative for pressure; however, at times, the VA examiner reported that the Veteran was unable to answer questions and was tangential. Affect was mostly appropriate. The Veteran denied visual or auditory hallucinations, as well as present suicidal or homicidal ideation. Insight and judgment were noted as intact. The VA examiner noted that the Veteran's symptoms of major depressive disorder recur at various times, with more severe symptoms surrounding political events in Korea, where the Veteran has fought near. The VA examiner assigned a GAF score of 55, which reflects essentially moderate depression symptoms. See DSM-IV at 46-47. VA outpatient treatment notes dated April 28, 2011 document that the Veteran was placed into transitional housing with compensated work therapy. The Veteran was discharged from transitional housing on August 30, 2011. A 100 percent disability evaluation was granted for this period (April 28, 2011 to September 1, 2011). VA treatment records dated after discharge from transitional housing reflect that the Veteran had not reported any suicidal or homicidal ideations. He was on medication and reported no delusions or paranoia. Insight and judgment were reported as fair and the Veteran stated that he began feeling stable. In a VA treatment note dated September 2011, the VA doctor noted that the Veteran was continuing his medication. The Veteran denied any extensive periods of depressed mood, and was looking forward to starting a VA work/study job and a new semester at school. The Veteran described his romantic relationship as positive. There was no evidence of suicidal or homicidal ideation. In a more recent VA treatment note dated March 2012, the Veteran reported doing well in school, and stated that his relationship was going well. He denied periods of extended depression, denied significant anxiety, and was continuing his medication regimen. The Veteran reported that overall he was managing his stressors and the VA doctor reported no significant changes in his baseline functioning. Upon mental status examination, the VA psychiatrist noted that the Veteran was alert and his speech was within normal limits. The Veteran described his mood as "alright". Affect was congruent. Thought process was linear and goal directed. No suicidal or homicidal ideations were reported. No delusions or paranoia were noted. Insight and judgment were noted as fair. Based on this evidence, the Board finds that a higher evaluation in excess of 50 percent for major depressive disorder from November 1, 2010 to April 28, 2011 and from September 1, 2011 is not warranted. Aside from the period of hospitalization and admission into transitional housing, for which a 100 percent temporary rating has already been granted, the Board finds that the weight of the evidence demonstrates that the Veteran's major depressive disorder symptoms more nearly approximate a 50 percent disability rating, reflecting occupational and social impairment with reduced reliability and productivity. During the April 2011 VA examination, the Veteran reported nightmares and flashbacks, hyperarousal, feelings of hopelessness and fear. He reported not wanting to go outside and being anxious about political policies. The Veteran reported better concentration with medication and no complaints with memory. The VA examiner assigned a GAF score of 55, which indicates moderate depression symptoms and moderate difficulty in social, occupational, or school functioning. For these reasons, the Board finds that the Veteran's major depressive disorder more nearly approximates a 50 percent disability rating. The Board further finds that, from November 1, 2010 to April 28, 2011 and from September 1, 2011, the Veteran's major depressive disorder does not more nearly approximate a 70 percent evaluation. As noted above, a 70 percent rating for major depressive disorder is provided for 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. Here, the Board finds that the Veteran's major depressive disorder symptoms do not demonstrate occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking, or mood. See Vazquez-Claudio v. Shinseki, 2012-7114 (Fed. Cir. Apr. 8, 2013) (finding that although the veteran's symptomatology is the primary consideration, § 4.130 also requires an ultimate factual conclusion as to the veteran's level of impairment in "most areas"). For example, the Veteran reported having friends and a romantic partner. The Veteran stated that he writes, attends school, volunteers and interns at the VA two to three times per week, attends a writers group, and was planning to be involved in a newsletter. The Veteran has recently stated that he has plans on becoming a history teacher. See April 2011 VA examination and VA treatment note dated February 2012. The Veteran does experience depressed mood; however, his symptoms are not near-continuous as contemplated by a 70 percent disability rating and are well-controlled with medication. The Veteran's judgment and thinking have been deemed to be within normal limits in both the April 2011 VA examination and VA treatment records dated subsequent from his most recent discharge from transitional housing in August 30, 2011. Except for periods of hospitalization, the Veteran has denied suicidal and homicidal ideation. His speech has not been found to be illogical, obscure, or irrelevant. During the April 2011 VA examination, the Veteran reported that he was unemployed and was going to collect unemployment; however, he also stated that he preferred to work and was currently looking for another job. This evidence tends to show that the Veteran believed that he was capable of working despite his major depressive disorder disability. For these reasons, the Board finds that the weight of the evidence of record does not demonstrate that the Veteran's major depressive disorder symptoms cause occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking, or mood. Accordingly, the Board finds that a 70 percent disability evaluation is not warranted. In sum, the Board finds that a preponderance of the evidence is against the Veteran's claim for an increased rating in excess of 50 percent for major depressive disorder for the initial rating period from November 1, 2010 to April 28, 2011 and from September 1, 2011. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted for major depressive disorder disability. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation 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." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. 38 C.F.R. 3.321(b)(1). Turning to the first step of the extraschedular analysis, the Board finds that all the symptomatology and impairment caused by the Veteran's major depressive disorder disability is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 9434, specifically provides for disability ratings based on a combination of history and clinical findings. In this case, the Veteran's major depressive disorder disability is manifested by nightmares, depressed mood, anxiety, hyperarousal, increased startled response, loss of interest, symptoms of agoraphobia, and occupational and social impairment with reduced reliability and productivity. These symptoms are either explicitly part of the schedular rating criteria or are "like or similar to" those symptoms and impairment explicitly listed in the schedular rating criteria. Mauerhan at 443. The levels of occupational and social impairment are also explicitly part of the schedular rating criteria. In addition, the GAF scores are incorporated as part of the schedular rating criteria as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with an acquired psychiatric disorder, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Service Connection for a Left Ankle Condition Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran's left ankle condition (swelling) is not considered a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). As noted above, competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker, 10 Vet. App. 67; Layno, 6 Vet. App. 465; Cartwright, 2 Vet. App. 24. The Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, at 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran is seeking service connection for his left ankle condition, which he contends is secondary to hypothyroidism, for which service connection is not in effect. Essentially, the Veteran states that his thyroid problems were not diagnosed properly and, as a result, his ankle began to swell due to poor circulation. See Veteran's statements dated November 2, 2010 and November 4, 2010. As the Veteran does not contend that his left ankle condition is directly related to service, the Board will not address direct service connection. With regard to the theory of secondary service connection, the record contains VA treatment notes which reflect that the Veteran has a current diagnosis of hypothyroidism and swelling of the left ankle. See VA treatment records dated October 2011, September 2011, and March 2012. That notwithstanding, the Board finds that service connection for a left ankle condition is not warranted. The Board finds that the Veteran is not currently service-connected for hypothyroidism; as such, secondary service connection may not be established as a matter of law. See 38 C.F.R. § 3.310(a). For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a left ankle condition as secondary to hypothyroidism. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. TDIU Analysis In this case, the Veteran essentially contends that he is unable to maintain employment due to his service-connected major depressive disorder disability, currently evaluated at 50 percent disabling. See Veteran's claim for TDIU dated December 2010. Under the objective criteria of combined rating percentages at 38 C.F.R. § 4.16(a)(2012), the Veteran is not eligible for consideration of a TDIU because the Veteran's combined disability rating is not 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). Rather, the Veteran has only one service-connected disability, major depressive disorder, currently assigned as 50 percent disabling. Having failed to meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extra-schedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Consideration of the TDIU under 38 C.F.R. § 4.16(b) is addressed in the remand section below. As indicated above, the Board has found that the Veteran does not meet the eligibility criteria for TDIU under the schedular combined rating percentages of 38 C.F.R. § 4.16(a). As the bases for findings under 38 C.F.R. § 4.16(a) turn on legal eligibility based solely on combined rating percentages, without reaching the question of unemployability due to the service-connected disabilities, whereas eligibility for TDIU under 38 C.F.R. § 4.16(b) turns on the factual, merits-based question of whether the Veteran's unemployability is due to the service-connected disabilities that is not dependent on combined rating percentages, the Board finds there is a valid basis for deciding TDIU eligibility under 38 C.F.R. § 4.16(a) in this decision, and for referring (remanding) the question of TDIU eligibility under 38 C.F.R. § 4.16(b). Such bifurcation of a claim generally is within the VA Secretary's discretion. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009), aff'd 631 F.3d 1380 (Fed. Cir. 2011) (holding that it is permissible to bifurcate a claim and to adjudicate the distinct theories of entitlement separately). ORDER An initial evaluation in excess of 50 percent for major depressive disorder (also claimed as agoraphobia and PTSD) from November 1, 2010 to April 28, 2011, and from September 1, 2011 is denied. Service connection for a left ankle condition secondary to hypothyroidism is denied. Entitlement to a TDIU under 38 C.F.R. § 4.16(a) is denied. REMAND Although the objective criteria are unmet under § 4.16(a), there is at least some evidence suggesting that the Veteran may be unable to secure or follow a substantially gainful occupation by reason of his service-connected major depressive disorder. See 38 C.F.R. § 4.16(b). In this case, there is some competent evidence of record suggesting that the Veteran's major depressive disorder may render him incapable of employment. For this reason, referral to the Director, Compensation and Pension Service, for consideration of a TDIU under 38 C.F.R. § 4.16(b) is warranted. The evidence of record addressing the issue of the Veteran's employability is found in the April 2011 VA compensation examination report and VA treatment records. Based on this evidence, the Board finds further assessment of the TDIU claim warranted. 38 C.F.R. § 4.16(b). In the April 2011 VA examination, the Veteran reported that after discharge from the service he was employed full-time as a supervisor at UPS and as a salesman at a car dealership. He also reported that he worked for Volunteers of America. From July 2009 to January 2011, the Veteran reported that he was unemployed due to his symptoms of depression. However, in a VA treatment note dated October 2011, the Veteran reported not working since 2009 due to a Workers Compensation injury. In March 2011 the Veteran was laid off only 11 days after he started working. He reported collecting unemployment, but stated that he prefers to work and was looking for another job. See April 2011 VA examination. As the analysis and findings above in this Board decision reflect, the Board has no authority to assign a TDIU rating under 4.16(b) where a claimant does not meet the schedular requirements of 4.16(a), without first referring the case to the Director, Compensation & Pension Service. See Barringer v. Peake, 22 Vet. App. 242, 244 (2008) (the Board may not assign an extraschedular rating in the first instance). The code clearly provides that a claim for extraschedular consideration under 38 C.F.R. § 4.16(b) must be determined by the Director, Compensation & Pension Service. Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, the issue of a TDIU is REMANDED for the following action: 1. The claim for a TDIU under 38 C.F.R. § 4.16(b) is to be submitted to the Director, Compensation and Pension Service, for adjudication. 2. If the determination remains adverse to the Veteran, the Veteran and his representative should be provided a supplemental statement of the case. Each should be afforded a reasonable period in which to respond, and the record should then be returned to the Board for further appellate review, as appropriate. 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs