Citation Nr: 1318125 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 04-01 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased evaluation for a mood disorder, currently evaluated as 30 percent disabling. 2. Entitlement to an effective date prior to March 7, 2008, for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 3. Entitlement to an effective date prior to March 7, 2008, for the grant of Dependents' Educational Assistance benefits. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from June 1976 to March 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2002 and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The December 2002 rating decision denied a rating in excess of 30 percent for the Veteran's service-connected mood disorder. The March 2012 rating decision granted entitlement to a TDIU and Dependents' Educational Assistance benefits, both effective from March 7, 2008. In July 2007, the Veteran requested a Board hearing at his local RO. He was scheduled for a June 2009 hearing and was notified of this hearing in an April 2009 letter. He did not report for this hearing and, in October 2011, the Veteran's accredited representative withdrew the hearing request in writing. This hearing request is therefore deemed to have been withdrawn. This claim was originally before the Board in October 2009, at which time it was remanded for additional development. Following the completion of the requested development, this claim was denied by the Board in a July 2010 decision. The Veteran appealed the Board's July 2010 decision to the United States Court of Appeals for Veterans Claims (Court). While the case was pending at the Court, the VA Office of General Counsel and the appellant's attorney filed a joint motion for remand in March 2011, requesting that the Court vacate the Board's July 2010 decision because it erred in not considering relevant evidence. Specifically, the joint motion noted that the March 2008 VA peripheral nerves examination report indicates that the Veteran "has been unemployed since 2001, due to, in part, 'lack of mental concentration.'" The Board was directed to discuss this evidence on remand. In a March 2011 Order, the Court granted the joint motion, vacating the Board's July 2010 decision and remanding the case to the Board for compliance with directives that were specified by the joint motion for remand. In December 2011, the Board remanded this claim for further development. Following completion of the Board's remand instructions, the case was returned to the Board for further appellate review. In a June 2012 decision, the Board again denied a rating in excess of 30 percent for the Veteran's service-connected mood disorder. In doing so, the Board expressly considered the March 2008 VA peripheral nerves examination report that was the subject of the March 2011 joint motion for remand. The Veteran appealed the Board's June 2012 decision to the Court. While the case was pending at the Court, the VA Office of General Counsel and the appellant's attorney filed a joint motion for remand in November 2012, requesting that the Court vacate the Board's June 2012 decision. In a November 2012 Order, the Court granted the joint motion, vacating the Board's June 2012 decision and remanding the case to the Board for compliance with directives that were specified by the joint motion for remand. The case has thus been returned to the Board for further consideration. The issues of entitlement to earlier effective dates for the TDIU and Dependents' Educational Assistance benefits are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT The Veteran's mood disorder is manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but not by occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for the assignment of a disability rating in excess of 30 percent for service-connected mood disorder are not met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9435 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2012)). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate a claim, as well as the evidence VA will attempt to obtain and which evidence the veteran is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements, however, may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Dingess, supra; Pelegrini, supra. The Board finds that the notification requirements of VCAA have been satisfied in this case. In this regard, the Board notes January 2007 and December 2009 evidentiary development letters in which the RO advised the appellant of the evidence needed to substantiate his increased rating claim. The appellant was advised in these letters of his and VA's responsibilities under VCAA, to include what evidence should be provided by him and what evidence should be provided by VA. These letters also advised the Veteran as to the type of evidence needed to substantiate both the disability rating and effective date elements of his claim, pursuant to the Court's holding in Dingess, supra. The Board notes that these letters were not issued prior to the initial adjudication of the Veteran's claim in December 2002. His claim, however, was subsequently readjudicated, most recently in a March 2012 supplemental statement of the case. Thus, any deficiencies in the timeliness of these notice letters would not be prejudicial. The Board further finds that the duty to assist requirements of VCAA have also been satisfied in this case. 38 U.S.C.A. §§ 5103 and 5103A. Specifically, the Board finds that all obtainable evidence identified by the Veteran relative to the issue on appeal has been obtained and associated with the claims folder. In particular, the Board notes that the RO obtained the Veteran's VA medical records and his identified private medical records. The RO arranged for the Veteran to undergo VA examinations in September 2002, May 2007, April 2008, December 2010, March 2011, and February 2012. The Board finds that the resulting examination reports are adequate for the purpose of determining entitlement to an increased rating. The examiners elicited from the Veteran his history of complaints and symptoms, and the examination reports provide pertinent clinical findings detailing the results of the examinations to allow for effective evaluation of the Veteran's disability. For these reasons, the Board concludes that the examination reports in this case provide an adequate basis for a decision. The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Increased Rating The Veteran's mood disorder is currently assigned a 30 percent disability rating pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9435 (2012). The November 2012 joint motion for remand states that the Board did not provide adequate reasons and bases for its June 2012 determination that the Veteran was not entitled to a rating in excess of 30 percent for his service-connected mood disorder. Specifically, it notes that "the Board stated that, 'the evidence of record does not show that the occupational and social impairment from the disability more nearly approximates the deficiencies in most areas contemplated by a 50 percent disability rating...' (BVA dec. at 11, emphasis added). This appears to co-mingle the language for a 50 percent rating criteria with that used for a 70 percent criteria." The joint motion found it "unclear exactly how the Appellant's symptomatology was evaluated, and if it was done so in accordance with the proper regulatory language." The Board will address this deficiency in the decision below. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 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. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7. Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Mood disorder is evaluated pursuant to the General Rating Formula for Mental Disorders. A 30 percent rating is warranted when 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 (such as forgetting names, directions, recent events). Id. A 50 percent evaluation is warranted 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted when there is 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 work like setting); and the inability to establish and maintain effective relationships. Id. A 100 percent evaluation 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; 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. Id. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). With regard to the Global Assessment of Functioning (GAF) scores assigned, the GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. Carpenter v. Brown, 8 Vet. App. 240 (1995). According to the American Psychiatric Association's DSM-IV, GAF scores from 61 to 70 indicate 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, has some meaningful interpersonal relationships. GAF scores from 51 to 60 indicate moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers and co- workers). GAF scores of 41 to 50 indicate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social or occupational functioning (e.g., no friends, unable to keep a job). The Veteran underwent a VA mental disorders examination in September 2002. At that time, the Veteran reported that he had had several sales jobs since 1987. The longest of these jobs lasted for approximately one year. His last job involved selling advertising, making phone calls, face-to-face conversations, and driving from one place to another and lasted from October 2000 to August 2001. He reported that he was unable to work starting in March 2001 following a motor vehicle accident. He reported that he had had problems with gambling and that resulting legal problems landed him in jail for 57 days in 1997. The Veteran's wife asked him for a divorce in 1998 due to "significant domestic issues." The Veteran started receiving counseling after he got out of jail. The Veteran reported that he had been depressed, but he denied any neurovegetative signs of depression. He admitted to feelings of hopelessness and worthlessness, as he was unable to maintain full employment. He reported that he has had no suicidal or homicidal thoughts, and there was no history of suicide attempts. On examination, the Veteran was calm and cooperative. He was alert and oriented to time, place, person, and his current condition. He was significantly concerned that he is not able to keep full employment due to his chronic back pain. His mood was depressed, and his affect was restrictive. His thought process was goal oriented without any flight of ideas or loosening of associations. He denied any hallucinations. No delusions were noted. Cognition was intact. He had fair insight into his condition and fair judgment. The examiner diagnosed mood disorder due to chronic back pain with depressive features and assigned a GAF score of 65. The examiner stated that, although the Veteran has experienced depressive symptoms that are likely triggered by his chronic back pain, they are not severe enough to render him unemployed. In a January 2007 statement, the Veteran reported that there had been a breakdown in family communications and degraded relationship with his ex-wife. The Veteran underwent a VA mental disorders examination in May 2007. The resulting examination report reflects that the Veteran received psychotherapy from 1997 to 2000 following a break-up with his wife. At the time of the examination, he was taking anti-anxiety medication that was providing little relief from his symptoms. The Veteran reported that he was married once for 18 years and that they divorced in 1998. He denied any recent romantic involvement. He had a good relationship with one of his daughters and a poor one with his other daughter. The Veteran retired in July 2001. He used to like to fish but felt he could no longer do this. He denied any other active hobbies. He reported watching a lot of television, talking to neighbors and to friends on the phone a lot, and doing the occasional crossword puzzle. He reported having experienced varying levels of depression for the last 15 to 16 years. He reported having had sadness all day in approximately eight out of the last ten days. He reported no difficulty sleeping. He reported periodic tearfulness for no apparent reason. He complained of decreased motivation for socialization and activity. He reported that he "[h]as a few good friends 'who come around no matter what,' but reports that he does not feel comfortable spending much time with them." He reported that he sees one friend every eight or nine days and sees the other for several days in a row each month, and that he is close to this latter friend's family. Few of his other friends lived in the area, and those who did were busy. He complained of irritability and frustration, but reported only rare verbal acting out. He reported feeling enraged at times. He complained of enormous concentration and memory problems. He denied suicidal or homicidal ideation. On physical examination, the Veteran was clean, neatly groomed, appropriately dressed, and casually dressed. Psychomotor activity and speech were unremarkable. The attitude toward the examiner was cooperative, friendly, relaxed, and attentive. His mood was depressed and his attention was intact. He was able to perform serial sevens quickly and accurately and was able to spell a word forwards and backwards. He was oriented to person, time, and place. His thought process had tangentiality. Thought content was unremarkable and he had no delusions. In terms of judgment, he understood the outcome of behavior. He had average intelligence and, with respect to insight, understood that he had a problem. He interpreted proverbs appropriately. He did not have sleep impairment, hallucinations, inappropriate behavior, obsessive or ritualistic behavior, panic attacks, suicidal or homicidal thoughts, or episodes of violence. Impulse control was good. He was able to maintain minimum personal hygiene. Remote memory was normal, but recent and immediate memory were mildly impaired. Results of psychological testing were consistent with relatively mild depressive, anxious, and somatoform tendencies. The examiner diagnosed major depressive disorder, recurrent, mild, and assigned a GAF score of 60. The examiner opined that the Veteran's psychiatric disability is manifested by occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to mental disorder signs and symptoms, but with generally satisfactory functioning (routine behavior, self-care, and conversation normal). The examiner noted that the Veteran presented as thoroughly cognitively intact during the mental status evaluation but complained of intermittent concentration and memory problems. Interpersonal functioning appeared largely intact. Recreational activities were noted to be at least mildly impaired. In March 2008, the Veteran was afforded a VA peripheral nerves examination. The examiner noted that the Veteran had been unemployed since 2001 due to pains and lack of mental concentration. The Veteran reported several automobile accidents (possibly six) in a one-year period from 2001 to 2002. Upon the examiner asking why he had these accidents, the Veteran responded that he could not function mentally. This examiner made no comments concerning the Veteran's statements of lack of mental concentration or mental functioning. The Veteran next underwent VA examination in April 2008. The examination report reflects that the Veteran was being treated with a medication that was helping him sleep. It was noted that the Veteran was not in a current romantic relationship. There had been some deterioration in his relationship with the daughter he was formerly close to. He reported that she has gotten busier and had less time for him. He reported having a poor relationship with his other daughter. He reported that he had a few close friends whom he saw in some capacity several times but that he was generally spending most of his time in isolation. He reported he was physically unable to do most of the things that he enjoyed and took pride in maintaining his yard when physically able. He watched a lot of television. He reported experiencing sadness most of the day, every day, and having periodic tearfulness. He reported initial and middle insomnia with no more than five hours of sleep per night. His motivation was intact for social activity with friends, but was poor for some activities. His appetite was variable and was often poor. He reported losing his train of thought in conversation, sometimes forgetting to pay bills in timely fashion, and sometimes having difficulty keeping track of his appointments. He denied any regular problems with irritability but reported a history of "being a hothead." He denied suicidal or homicidal ideation. He occasionally experienced assaultive ideation when frustrated or angry but denied that he would act on this feeling. He reports constantly worrying about his finances. On examination, he was clean, neatly groomed, appropriately dressed, and casually dressed. Psychomotor activity was unremarkable. Speech was slow. He was cooperative, friendly, relaxed, and attentive toward the examiner. Affect was appropriate and constricted. His mood was depressed. Attention was intact. He was able to do serial sevens and spell a word forward and backward. He was oriented to person, time, and place. There was tangentiality of thought process. Thought content was unremarkable. There were no delusions. In terms of judgment, he understood the outcome of behavior. Intelligence was average. In terms of insight, he understood that he had a problem. There were no hallucinations. He was found to have inappropriate behavior, and his occasional irritability was listed as an example. He interpreted proverbs appropriately. He did not have obsessive or ritualistic behavior. He did not have panic attacks. Impulse control was good. There were no episodes of violence. He was able to maintain minimum personal hygiene. Remote memory was normal, but recent and immediate memory were mildly impaired. He reported some concentration difficulty, but the examiner observed that these complaints sounded normal. Mental status evaluation was noted to be normal, but some tangentiality was noted. The examiner determined that the Veteran was grossly cognitively intact. The examiner diagnosed major depressive disorder, recurrent, moderate, and assigned a GAF score of 55. The examiner noted that the Veteran had moderate symptoms and functional impairment. Some worsening of symptoms was reported, but the overall level remained in moderate range. The Veteran had not perceived a need for psychiatric treatment, having attributed most of his problems to physical concerns. The examiner opined that the Veteran's level of occupational and social impairment was best described as being characterized by occasional decrease in work efficiency with intermittent periods of inability to perform occupational tasks due to mental disorder signs and symptoms, but with generally satisfactory functioning (routine behavior, self-care, and conversation normal). The examiner determined that the Veteran's symptoms and functional impairment were of moderate severity. The January 2010 VA examination report notes that the Veteran was being treated with anti-anxiety medication with fair results. The Veteran reported no significant relationships since the time of the last examination and indicated that he was not currently dating. He lived alone and was responsible for making household decisions and taking care of the chores. He reported that his house was not dirty, but he had not done dishes in a while. He reported that he shopped for groceries very little and that he often ate at a restaurant a few doors from his home. His relationship with his father had improved somewhat in the years before his father's death in 2006. He has no siblings but indicated there was a woman he perceived as a sister and a man he perceived as an older brother. This brother-figure had a father to whom the Veteran also felt close. He reported that he went to this man's house and helped him complete crossword puzzles multiple times a week. The Veteran reported that he did not have close relationships with his daughters. He reported that he had fewer than ten, and closer to five, close friends whom he saw a couple of times per week. They would go get something to eat or visit each other in their homes. The Veteran indicated he visited the woman he perceived as his sister on a regular basis and that he was also close to this woman's boyfriend. They generally watched a ballgame or are pizza, and he attended birthday parties at their home. The Veteran indicated he watched her children play softball in the fall but stated he did not do much with them over the winter. He reported no recreational activities other than watching a ballgame. He reported no community activities. He was a member of the Disabled American Veterans but had not attended meetings in awhile. The Veteran reported feelings of sadness every day. He stated that he tried to escape it by watching television or calling a friend. He deemed this a relatively effective coping strategy but indicated at times the sadness would last for a couple of hours. Sadness often stemmed from thoughts of worthlessness or thoughts of his deteriorating relationship with his children. He characterized himself as "withdrawn" and reported that he felt his life was a "void." He reported crying spells once every week or two. He described concentration problems, reporting that he would lose track of conversations with friends and then feel guilty. He endorsed some irritability or anger but stated that he was able to maintain control during such times and reported no episodes of violence or physical aggression. He reported having difficulty falling asleep most nights and generally obtaining approximately four hours of sleep per night. He described energy/motivation as intact for social activities with friends but indicated it was poor for some other activities, such as housework and laundry, due to pain. On examination, he was clean, neatly groomed, appropriately dressed, and casually dressed. Psychomotor activity was unremarkable. Speech was clear and coherent. Attitude toward the examiner was cooperative, friendly, and attentive. Affect was full. In terms of mood, the Veteran reported that "'I have an absence of feelings.'" Attention was intact. He was able to perform serial sevens quickly and mostly accurately, and to quickly spell a word forward and backward. Orientation was intact to person, time, and place. Thought processes and content were unremarkable. There were no delusions. In terms of judgment, he understood the outcome of his behavior. Intelligence was average. In terms of insight, he understood that he had a problem. He interpreted proverbs appropriately. He did not have hallucinations, inappropriate behavior, obsessive or ritualistic behavior, panic attacks, homicidal thoughts, or suicidal thoughts. Impulse control was fair, and there were no episodes of violence. He was able to maintain minimum personal hygiene. There were no problems with activities of daily living due to his psychiatric disability. Remote, recent, and immediate memory were normal. The Veteran presented as cognitively intact during interview and mental status evaluation. He currently handled his finances and did indicate financial stress as a result of not having enough money, but there was no evidence to suggest he would be incapable of managing finances independently. The Veteran was diagnosed with major depressive disorder, in partial remission. He was assigned a GAF score of 57. The examiner's closest estimate of the Veteran's social and occupational functioning was that there was occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to mental disorder signs and symptoms, but with generally satisfactory functioning (routine behavior, self-care, and conversation normal). The examiner opined that the Veteran's mood symptoms appeared to result in mild functional impairment. The March 2011 VA general medical examination report notes that there is a history of depression. It also notes that there is no history of interpersonal relationship difficulties, panic attacks, substance abuse, memory problems, loss of control/violence potential, homicidal symptoms, anxiety, confusion, sleep impairment, and suicidal symptoms. In September 2011, the Veteran underwent a private employability evaluation in connection with his TDIU claim. This evaluation contemplates the cumulative effects of the Veteran's service-connected disabilities on his ability to secure or follow substantially gainful employment. It also, however, contains information that is relevant to determining the severity of the Veteran's service-connected mood disorder. The vocational rehabilitation consultant who conducted the evaluation noted that this evaluation was based on her review of the claims file and on a telephone interview of the Veteran of nearly two hours' duration. She "noted that [the Veteran] frequently rambled to tangential subjects and needed continual redirection to answer questions and stay on topic." Following a review of the Veteran's pertinent medical and employment histories, the examiner concludes that "the service-connected conditions for spinal fusion and mood disorder were associated with unrelenting back pain, restricted physical abilities, lack of sleep, and problems with concentration due to the side effects of pain medications." The Veteran also underwent a VA mental health examination in February 2012. It notes that the Veteran has a diagnosis of depressive disorder, not otherwise specified, and assigns a GAF score of 60. He reported that he experiences depressed mood every day. He also reported that he has become a hermit and his activities have been cut to a minimum, but he reported that his lack of activity is associated more with chronic pain than with mood disturbance. He reported tearfulness and sleep disturbance. He denied suicidal ideation. He did not endorse current panic symptoms, but he did report that he experienced panic attacks when taken off of a medication. The examiner observed, however, that these symptoms appear to have been associated with opioid withdrawal. He reported memory problems and losing his place in conversations, which was not observed by the examiner. There was no evidence of difficulty remembering dates, details of incidents, or names of providers. He reported some difficulty concentrating, but was generally capable of completing tasks with effort. The most accurate summary of the Veteran's level of occupational and social impairment was noted to be occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported that he had not heard from his youngest daughter, who was living in Australia, in a while. He reported that he has contact with his oldest daughter and with his ex-wife approximately once per year. He reported that he has a couple of friends whom he talks to a couple of times per week. He had also distanced himself from another neighbor because of her behavior. He reported that he had not done anything fun in a long time and that he has not felt like helping anybody with anything lately. He reported that he goes to a cookout every once in a while when it is warm outside. He reported that he has casual, friendly interactions with acquaintances. Relevant symptoms were depressed mood; chronic sleep impairment; and mild memory loss, such as forgetting names, directions or recent events. The remaining symptomatology that are listed in the rating schedule were not found. The examiner assessed that the Veteran is employable from a mental health perspective. He noted that the Veteran had reported mild to moderate mood symptoms associated with chronic pain. He reported mild difficulty concentrating associated with chronic pain and difficulty multitasking, but the examiner determined that the Veteran would likely be capable of completing simple, repetitive tasks from a mental health perspective. Based on the above, the Board finds that a disability rating in excess of 30 percent for the Veteran's service-connected mood disorder is not warranted at any time during this appeal. This conclusion is based on the Board's finding that the above evidence most closely approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. With respect to the symptomatology that is expressly listed in the 30 percent rating criteria of the applicable rating schedule, the record contains evidence of the following: depressed mood, anxiety, chronic sleep impairment, and mild memory loss. Suspiciousness and panic attacks due to the service-connected mood disorder (as opposed to panic attacks that were related to medication withdrawal) were not found. With respect to the enumerated 50 percent rating criteria, the record contains evidence of flattened affect. The September 2002 VA examination report describes the Veteran's affect as restrictive, while the April 2008 report notes that it is appropriate and constricted. Elsewhere, however, it is noted to be full. Disturbances of motivation and mood are reflected in the record as well, as the Veteran at several times notes that he has decreased motivation for socialization and activities such as household chores. The Board does not find evidence of the following 50 percent rating criteria: circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of long-term memory; impaired judgment; and impaired abstract thinking. Such impairment in cognition or the Veteran's ability to express himself are largely absent from the multiple examination reports of record. While the Veteran has himself described difficulties with concentration, memory, cognition, and self-expression, such impairment was mostly actually observed during his September 2011 private employability evaluation over the telephone, while tangentiality of expression was also found during the May 2007 and April 2008 VA examinations. Other records, including the February 2012 VA examination report, characterize the Veteran as a good historian, with no evidence of difficulty remembering dates, details of incidents, or names of treatment providers. Although the VA March 2008 peripheral nerves examination noted the Veteran's complaints of lack of mental concentration or mental functioning, two mental health professionals who examined the Veteran described his symptoms as no more than moderate. Elsewhere, difficulties with concentration and motivation, in particular, were attributed on multiple occasions to physical pain that has been associated with the Veteran's service-connected back disability. In short, the Board finds that the type and the severity of the Veteran's mood disorder symptoms does not rise to the severity of the symptoms that are contemplated by the 50 percent rating criteria. More broadly, the Board also finds that the level of occupational and social impairment that is attributable to the Veteran's service-connected mood disorder most nearly approximates the level of impairment that is contemplated by the 30 percent rating criteria. In terms of social functioning, the record consistently reflects that the Veteran has many friends, several quite close, with whom he routinely spends time. Even during his February 2012 examination, when he described himself as a hermit, the Veteran reported that he has a couple of friends whom he talks to a couple of times per week, that he occasionally goes to cookouts, and that he still has casual, friendly interactions with acquaintances. While he reported that he has distanced himself from a neighbor, he reported that he did so because of the neighbor's behavior, not because of his mood disorder. He also expressly attributed the decrease in his level of socialization to his back pain rather than to a mood disorder. The Board acknowledges that the Veteran has described having difficulties in his relationships with his daughters and his ex-wife and that the examination reports of record reflect varying levels of contact with each daughter throughout this appeal period. It is not clear from the record the extent to which the Veteran's difficulties with his younger daughter arose from her living in Australia and having become busy, rather than from the Veteran's mood disorder. The evidence is less clear on the nature of his difficulties with his older daughter. Nonetheless, even acknowledging that the Veteran's relationships with his daughters may have become strained due to his mood disorder, this evidence does not demonstrate an overall difficulty in establishing and maintaining effective work and social relationships, as is contemplated by the 50 percent rating criteria, due to the Veteran's service-connected psychiatric disability. In terms of occupational impairment, the Board notes that the Veteran has not worked at any point during the period that is contemplated by this appeal. As discussed elsewhere, while there does appear to have been a mood disorder component to the impairment that led to the Veteran's discontinuing to work, the Veteran's retirement appears to have largely been due to impairment caused by his service-connected back disability. The psychiatric impairment is largely categorized as a difficulty in concentration, which is also partly attributed to his back pain. Furthermore, the above evidence reflects that the Veteran generally functions satisfactorily. Aside from some anger issues, the Veteran's behavior is largely described as routine. He is able to care for himself, to include making household decisions, taking care of chores, and managing his own finances. His casual interactions with others are described as normal. In short, the Board finds that the above evidence is illustrative of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. This conclusion was expressly drawn in the VA examination reports dated in May 2007, April 2008, January 2010, and February 2012. Additionally, the Veteran's GAF scores of 55 to 65 indicate that he experiences mild to moderate symptomatology consistent with the 30 percent evaluation currently assigned. After considering the totality of the evidence of record, the Board finds that the criteria for an evaluation in excess of 30 percent have not been met. The pertinent medical evidence collectively reflects that the Veteran's mood disorder is primarily characterized by depressed mood, sleep impairment, minor difficulty in maintaining effective familial relationships, and mild memory loss. The Board finds that these symptoms more nearly approximate occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks. The only medical opinions to directly address the level of impairment support this conclusion. The Board has considered whether the Veteran is entitled to a staged rating. See Hart, supra. However, at no time during the pendency of this appeal has the Veteran's service-connected mood disorder been more than 30 percent disabling. As such, a staged rating is not warranted. The Board has also considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to a rating in excess of 30 percent for a mood disorder must be denied. In reaching this conclusion, the Board also has considered whether the Veteran is entitled to a greater level of compensation for the disability at issue on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate. Second, if the schedular evaluations do not contemplate the Veteran's level of disability and symptomatology and are found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected mood disorder is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology. Specifically, the Board finds that the rating criteria of Diagnostic Code 9435 for the Veteran's service-connected mood disorder adequately contemplate the levels of cognitive, social, and occupational impairment that are demonstrated in the evidence of record. The assigned GAF scores appear to accurately quantify the Veteran's overall level of impairment and are consistent with the 30 percent rating that has been granted. The Veteran has not been hospitalized for this disability during the period that is contemplated by this appeal. While the Veteran has not been employed at any point in this appeal, the limitations in concentration that are attributable to his service-connected mood disorder are adequately contemplated by the 30 percent rating criteria. In short, there is nothing in the record to indicate that the service-connected mood disorder on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to an increased evaluation for a mood disorder, currently evaluated as 30 percent disabling, is denied. REMAND A March 2012 rating decision granted entitlement to a TDIU and established basic eligibility for Dependents' Educational Assistance, both effective March 7, 2008. In April 2012, the Veteran filed a notice of disagreement in which he "seeks entitlement to an effective date earlier than March 7, 2008, for the grants of TDIU and Dependents' Educational Assistance." The Veteran has not been issued a statement of the case and thus has not had the opportunity to perfect an appeal on these issues. The Court has held that the filing of a notice of disagreement initiates the appeal process, and that the failure of the RO to issue a statement of the case is a procedural defect requiring a remand. See Manlincon v. West, 12 Vet. App. 238 (1999). Therefore, the issues of entitlement to an effective date earlier than March 7, 2008, for the grants of TDIU and Dependents' Educational Assistance must be remanded for the issuance of a statement of the case. Accordingly, the case is REMANDED for the following action: Issue a statement of the case addressing the issues of entitlement to an effective date earlier than March 7, 2008, for the grants of TDIU and Dependents' Educational Assistance. The appellant should be provided the opportunity to perfect a timely substantive appeal (VA Form 9) with respect to those issues. The RO is free to undertake any additional development deemed necessary with respect to those issues. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs