Citation Nr: 1322359 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 06-31 869A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for the loss of two top teeth, for dental treatment purposes. 2. Entitlement to an initial disability rating greater than 30 percent for service-connected mood disorder prior to August 19, 2010, and greater than 50 percent since then. 3. Entitlement to an initial compensable disability rating for service-connected scarring on the penis shaft prior to September 9, 2010, and greater than 10 percent since then. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). (The issues of entitlement to service connection for prostate cancer, to include as due to exposure to herbicides, and entitlement to restoration of a 30 percent disability rating for service-connected bilateral hand eczema, claimed as a skin condition, are the subject of a separate appellate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from October 1972 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida. That decision, in pertinent part, granted service connection and assigned an initial 30 percent disability rating for dysthymic disorder, and granted service connection and assigned an initial noncompensable disability rating for scarring on the penis shaft, each effective as of March 28, 2005. The decision also denied service connection for the loss of the top two teeth for dental treatment purposes. The Veteran expressed disagreement with the assigned initial disability ratings and with the denial of service connection, and perfected a substantive appeal. This matter was previously before the Board in December 2008 at which time it was remanded for additional development. It is now returned to the Board. As will be discussed further herein, the Board finds that with regard to the issues being decided herein, the agency of original jurisdiction substantially complied with the remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In September 2008, the Veteran testified at a personal hearing over which a Veterans Law Judge of the Board presided while at the RO. Following the filing of additional claims, which are the subject of a separate decision on appeal, in June 2012, the Veteran testified at a personal hearing over which a second Veterans Law Judge of the Board presided while at the RO. A transcript of each hearing has been associated with the claims file. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During each hearing and during pre-hearing conferences, the Veterans Law Judges clarified the issues on appeal and inquired as to the etiology, continuity, and severity of the Veteran's asserted symptoms. The Veteran was offered an opportunity to ask the undersigned questions regarding his claims. The Board, therefore, concludes that it has fulfilled its duty under Bryant. VA law requires that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c) (West 2002); 38 C.F.R. § 20.707. Additionally, when two hearings have been held by different Veterans Law Judges concerning the same issue or issues, the law also requires that the Board assign a third Veterans Law Judge to decide that issue or issues because a proceeding before the Board must be assigned either to an individual Veterans Law Judge "or to a panel of not less than three members of the Board." 38 U.S.C. § 7102(a); 38 C.F.R. § 19.3. In this case, there were two hearings conducted by two different Veterans Law Judges; thus, a third Veterans Law Judge is required for a panel decision in this case. Under 38 C.F.R. § 20.707, a claimant must be afforded an opportunity for a hearing before all the Board members who will ultimately decide his appeal. Thus, if the claimant's appeal is assigned to a Board panel, the claimant must be afforded the opportunity for a hearing before every member of the panel that will ultimately decide his case. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). In this case, the Veteran presented testimony at two hearings before two different Veterans Law Judges regarding the issues captioned above. Accordingly, pursuant to 38 C.F.R. § 20.707 and the holding in Arneson, a letter was sent to the Veteran in March 2013 offering him the opportunity to testify at a hearing before a third judge who would participate in the panel decision. Later in March 2013, the Veteran responded that he waived his right to appear at an additional hearing before a third Veterans Law Judge who would be assigned to decide his appeal on the issues that were addressed at his prior hearings. Additionally, he requested consideration of his case on the evidence of record and requested the Board to proceed immediately without delay in issuing a panel decision. During the pendency of this appeal, by rating action dated in January 2012, the RO determined that the service-connected mood disorder warranted an increased disability rating of 50 percent, effective as of August 19, 2010. In February 2012, the RO also determined that the service-connected scarring on the penis shaft warranted an increased disability rating of 10 percent, effective as of September 8, 2010. Applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran has not withdrawn the appeal as to the issues of a disability rating greater than assigned; therefore, the issues remain in appellate status as captioned above. The evidence of record suggests that the Veteran may not be employed as a result of his service-connected disabilities. As such, the Board must consider whether a TDIU is warranted. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) has held that a TDIU claim is part of an increased disability rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. As such, the issue has been included among those on appeal before the Board as captioned above. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issues of service connection for the loss of two top teeth, entitlement to an increased disability rating for the service-connected scarring on the penis, and entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to September 8, 2010, the Veteran's mood disorder has been manifested by symptoms approximating 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 2. From September 8, 2010, the Veteran's mood disorder has been manifested by occupational and social impairment with deficiencies in most areas; however, it has not been productive of total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial 50 percent disability rating, but no higher, for service-connected mood disorder, prior to August 19, 2010, have been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9435 (2012). 2. The criteria for a disability rating higher than 50 percent for service-connected mood disorder, from August 19, 2010, to September 7, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9435 (2012). 3. The criteria for a 70 percent disability rating, but no higher, for service-connected mood disorder, from September 8, 2010, have been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9435 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court (Supreme Court) held that the blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA. Rather, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. Id. As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant. By letters dated in June 2005, August 2005, July 2008, and April 2009 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Because the claim for an increased initial disability rating for a mood disorder is an appeal arising from a grant of service connection in a March 2006 rating decision, and because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, in the above-mentioned letters and other correspondence provided by the RO, the Veteran was notified of 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. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. The Board observes that this case was remanded in December 2008 in order to obtain outstanding VA treatment records and afford the Veteran VA examinations to assess the severity of his disabilities. Thereafter, additional VA treatment records were associated with the claims file; a VA Formal Finding of Unavailability of Records was issued in September 2011 for records that could not be obtained; and the Veteran was afforded VA examinations for his asserted disabilities. As such, the agency of original jurisdiction has substantially complied with the December 2008 remand directives such that no further action is necessary in this regard. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Increased disability ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. §§ 4.2, 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the Veteran's entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Veteran, however, is appealing the initial assignment of a disability rating. As such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods during which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2012). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2012) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). The Veteran's service-connected psychiatric disorder is rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9435 (2012), which provides the rating criteria for mood disorder, not otherwise specified. Mood disorders are rated under the General Rating Formula for Mental Disorders, which provides that a 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. A 70 percent disability rating 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 worklike setting); inability to establish and maintain effective relationships. Id. A 50 percent disability rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 30 percent disability rating is warranted for 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, mild memory loss (such as forgetting names, directions, recent events). Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased disability rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. The Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994); 38 C.F.R. § 4.125 (2012). A GAF of 41 to 50 is defined as 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). A GAF of 51 to 60 is defined as 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). A GAF of 61 to 70 is defined as 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. A GAF of 71 to 80 relates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); and no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). Id. The Veteran's claim of entitlement to service connection for a psychiatric disorder was received in March 2005. By rating action dated in March 2006, service connection for a dysthymic disorder was granted and an initial 30 percent disability rating was assigned effective as of the date of claim. A VA mental disorders examination report dated in December 2005 shows that the Veteran reported being depressed ever since undergoing a circumcision in service which had complications. He described having low self-esteem, sleep disturbance, and marital problems as a result. Mental status examination revealed that he was alert, oriented, well-nourished, and well-developed. He was neatly and casually dressed, made good eye contact, cooperative, and in no apparent distress. Affect was blunted and mood was depressed. Speech was clear, coherent, goal directed, and unpressured. There were no flights of ideas or looseness of association. There were no suicidal or homicidal ideations. There were no auditory or visual hallucinations, or delusions. He was able to recall two of three objects in five minutes. He could spell "world" forward and backward. Serial 3s were intact. He was able to recall the past five presidents. Proverb interpretation was abstract. Insight and judgment were fair. The diagnosis was dysthymic disorder. A GAF score of 55 was assigned. The examiner added that the symptoms of depression were of moderate severity and interfered moderately with his social functioning, and mild to moderately with his industrial functioning. His symptoms were thought to improve with treatment. VA outpatient treatment records dated from April 2006 to January 2012 show that the Veteran was treated intermittently for symptoms associated with his mood disorder. Over the course of the treatment, he was assigned GAF scores which ranged primarily from 50 to 60. During the September 2008 hearing, the Veteran reported undergoing continued treatment for symptoms associated with his mood disorder. He reiterated that the complications resulting from his in-service circumcision had resulted in full depression. He described that his depression had caused problems in his personal life and professional career. He added that he would experience anxiety, sleep disturbance, insecurity, nervousness, memory loss, isolation, and an avoidance of social interaction. He noted that he had thought about suicide, but did not think he would carry it out. He indicated that he was taking prescription medication for anxiety and depression. A VA mental disorders examination report dated September 8, 2010, shows that the Veteran reported feeling very dejected with worsened mood due to parenthetic pain that further impinged on his mood disorder. He described being despondent and depressed, and having poor sleep and no appetite. Although the examiner indicated that residuals from prostate cancer had been a significant stressor relative to the mood disorder, the examiner determined it would have been too speculative to clearly separate how much mood disorder was caused by the prostate cancer versus the service-connected residuals of circumcision. Mental status examination revealed that the Veteran was oriented in all spheres. He presented at the examination wearing a hat and sunglasses, along with an over-sized jacket, in the office. He was unshaven and seemed restless, tense, and fatigued. Speech was clear, spontaneous, and coherent. He was cooperative. Affect was constricted, and mood was depressed. He was easily distracted and could not do serial 7s or spell a word forward and backwards. Thought process was unremarkable, but content was preoccupied with one or two topics. He reported no delusions or hallucinations. Judgment and insight were intact. He reported mild insomnia with variable amount of sleep hours. There were no panic attacks. He denied homicidal and suicidal thoughts. He exhibited fair impulse control, though, there was an occasional loss of temper. He would experience periodic anxiety. Memory was within normal limits. He was taking both anti-depressant and anti-anxiety prescription medication. The diagnosis was mood disorder due to medical disorders, mostly prostate cancer, but also deformity of penis and HIV. A GAF of 50 over the course of the previous year was assigned. The examiner added that the disability did not result in total occupational and social impairment, but that it did result in deficiencies in thinking, family relations, work, and mood. During the June 2012 hearing, the Veteran reported being in treatment for panic attacks. He described having low confidence and hearing noises. He noted that he was taking four medications, including one that helped him sleep better. He added that he continued to undergo regular therapy for his mood disorder. Mood Disorder Prior to September 8, 2010 The Veteran has described experiencing depression, anxiety, sleep disturbance, insecurity, nervousness, memory loss, isolation, avoidance of social interaction, and suicidal thoughts without plan. His GAF scores over the course of the appeal prior to September 8, 2010, have primarily suggested that he exhibited moderate to serious symptoms with moderate to serious impairment in social and occupational functioning. Moreover, he was shown to exhibit low self-esteem, sleep disturbance, blunted affect, depressed mood, abstract proverb interpretation, and fair insight and judgment. Although he did not exhibit all of the symptomatology consistent with a 50 percent disability rating, the Board finds that overall, his disability picture from March 28, 2005, to September 8, 2010, meets the criteria for an initial 50 percent disability rating. See Mauerhan, 16 Vet. App. at 442. The Board has additionally reviewed the evidence to determine if a disability rating in excess of 50 percent may be assigned prior to September 8, 2010. A 70 percent rating for mood disorder requires deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran had reportedly maintained a relationship with his family. Prior to September 8, 2010, the medical evidence suggested that his disability interfered moderately with his social functioning, and mild to moderately with his industrial functioning. It was not shown that his disability resulted in deficiencies in thinking, family relations, work, and mood. In this regard, diminished thinking, family relations, work, and mood are contemplated in the criteria for the 50 percent disability rating, which compensates for reduced occupational and social functioning. The criteria for the next higher 70 percent disability rating require that there be occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to symptoms such 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. Although the Veteran had thought about suicide and was being treated for depression, the evidence of record does not suggest that he has deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Further he did not engage in obsessional rituals, or have illogical, obscure, or irrelevant speech, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, or difficulty adapting to stressful circumstances. In short, prior to September 8, 2010, he did not have deficiencies in most of the areas needed for the next higher 70 percent disability rating. Mood Disorder From September 8, 2010 As noted above, the Veteran underwent a VA mental disorders examination on September 8, 2010. Based on the findings of this examination, and those of the treatment records thereafter, the Board finds that the Veteran's disability picture most closely approximates a 70 percent disability rating, and no more, from September 8, 2010, the date on which it was first shown that the disability had increased in severity. The requirements for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking and mood. Bowling, 15 Vet. App. at 1; 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). The Veteran has deficiencies in the area of work, as shown by the September 2010 VA examination report which noted that while the Veteran's mood disorder did not result in total occupational and social impairment, it did result in deficiencies in thinking, family relations, work, and mood. In this regard, the record shows deficiencies in most of the areas needed for a 70 percent disability rating. Moreover, in September 2010, the Veteran's mood disorder was assigned a GAF score of 50 which is indicative of serious symptoms or serious impairment in social and occupational functioning. He was easily distracted and said to exhibit constricted affect, depressed mood, a preoccupation with one or two topics, sleep disturbance, occasional loss of temper, and periodic anxiety. In June 2012, he added that he was being treated for panic attacks. In light of the aforementioned factors and other relevant evidence of record, the Board finds that the Veteran's mood disorder beginning in September 2010 most closely approximates a 70 percent disability rating. The preponderance of the evidence of record demonstrates that the Veteran is not entitled to a 100 percent disability rating as the evidence does not show total occupational and social impairment. As noted, the VA examiner in September 2010 specifically concluded that the disability did not result in total occupational and social impairment. Additionally, it has not been shown that the disability results in gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. In sum, considering all applicable rating criteria, the Board finds that the level of impairment presented by the Veteran's service-connected mood disorder from September 8, 2010, warrants a 70 percent disability rating, and no higher. The Board has considered the statements of the Veteran as to the extent of his symptoms over the course of the entire appeal. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In evaluating a claim for an increased schedular rating, however, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Accordingly, the Board finds that the overall disability picture from March 28, 2005, to September 8, 2010, most closely approximates the criteria for an initial 50 percent disability rating; and from September 8, 2010, approximates the criteria for a 70 percent disability rating. Consideration has been given to additional staged ratings since the date of the Veteran's claim (i.e., different percentage ratings for different periods of time). See Fenderson, 12 Vet. App. at 119. There, however, appears to be no identifiable period of time since the date of claim during which an additional staged rating for the mood disorder would be warranted. Extra-schedular Consideration Finally, the Board finds that the Veteran's mood disorder does not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration. The level of severity of the Veteran's mood disorder is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In this regard, as a result of this decision, the mood disorder has been awarded an increased initial disability rating of 50 percent prior to September 8, 2010, and of 70 percent from September 8, 2010. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. ORDER An initial 50 percent disability rating for service-connected mood disorder, from March 28, 2005, to August 18, 2010, is granted, subject to the applicable criteria governing the payment of monetary benefits. A disability rating greater than 50 percent for service-connected mood disorder, from August 19, 2010, to September 7, 2010, is denied. A 70 percent disability rating for service-connected mood disorder, from September 8, 2010, is granted, subject to the applicable criteria governing the payment of monetary benefits. REMAND Unfortunately, another remand is required in this case as to the issues of service connection for the loss of two top teeth, entitlement to an increased disability rating for the service-connected scarring on the penis, and entitlement to a TDIU. This additional delay is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). With regard to the issue of service connection for the loss of two top teeth, the Board remanded the issue in December 2008 so that in considering the Veteran's documented history and assertions, a dentist could offer an opinion as whether it was at least as likely as not that the Veteran sustained dental trauma to the top two teeth in service, resulting in his current dental condition. The examiner was asked to address whether the top two teeth were removed in service as a result of injury or aggravation of a condition that existed prior to entry into service. A VA examination report dated in September 2010 shows that the examiner indicated that no written record of trauma or events leading up to the loss of maxillary anterior teeth was reviewed. The examiner then concluded that he could not resolve the issue of whether the Veteran sustained dental trauma to the top two teeth in service without resorting to mere speculation. The examiner added that there was no substantiating evidence in the written records to support a position that the maxillary anterior teeth were lost following trauma sustained in service. The examiner also noted that there was nothing in the records to substantiate that any pre-existing condition in the maxillary anterior teeth was aggravated by events occurring in service. The Board finds that the September 2010 VA examination report to be of limited probative value as the VA examiner merely relied on the absence of evidence in the Veteran's service treatment records as the basis for the inability to provide an opinion as to the etiology of the asserted dental disorder. Although the remand noted the Veteran's contentions, those contentions were not considered in rendering an opinion as to the etiology of the asserted dental disorder. Additionally, the examiner did not indicate whether there was additional evidence that would have permitted him to provide the needed opinion. Hence, the opinion is inadequate. See Jones v. Shinseki, 23 Vet. App. 382 (2010); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). As such, a new examination is required. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). See also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes); Hicks v. Brown, 8 Vet. App. 417, 422 (1995) (inadequate medical evaluation frustrates judicial review). With regard to the issue of an increased disability rating for the service-connected scarring on the penis, during his June 2012 hearing, the Veteran testified that in addition to the painful scarring that resulted from his in-service circumcision, he also experienced damage to the urethra resulting in bleeding and problems with urination. He also described sexual dysfunction. The Veteran's disability has been rated under the rating criteria for unstable or painful scars. It does not appear that the Veteran has been evaluated for any additional residuals of the in-service circumcision beyond the residual scar. As such, the Board finds that the Veteran must be provided an additional examination to assess all of the residuals of the in-service circumcision beyond the residual scar. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion. See Colvin, 1 Vet. App. at 171; Hatlestad, 3 Vet. App. at 213; Barr, 21 Vet. App. at 311-12; Hicks, 8 Vet. App. at 422. As noted above, in Rice, the Court held that a claim for a TDIU is part of an increased disability rating claim when such claim is raised by the record. When a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined, and VA is required to decide those issues together. Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, adjudication of the TDIU claim will be held in abeyance pending the aforestated development and adjudication of the Veteran's claims. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his asserted disabilities should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall contact the appropriate VA medical facilities and attempt to obtain medical treatment records pertaining to the Veteran that have not yet been associated with the evidence of record. All such records obtained must be associated with the Veteran's claims file. 2. The RO/AMC shall schedule the Veteran for a VA dental examination to ascertain the precise nature and etiology of his asserted loss of two top teeth. The entire claims file must be made available to the examiner. All appropriate tests and studies shall be accomplished (with all results made available to the examining physicians prior to the completion of his or her report), and all clinical findings should be reported in detail. Following examination of the Veteran and considering the Veteran's documented history and competent assertions, the dentist is directed to provide an opinion as to whether it is at least as likely as not that the Veteran sustained dental trauma to the top two teeth in service, resulting in his current dental condition. The examiner shall specifically address whether the top two teeth were removed in service as a result of injury or aggravation of a condition that existed prior to his entry into service. If the examiner finds that the Veteran lost his two front teeth as a result of aggravation of a dental condition that existed prior to service, the examiner shall offer an opinion as whether it is at least as likely as not that the teeth were lost as a result of a permanent worsening of the pre-existing condition as a result of service, or as a result of trauma sustained in service, or whether the loss of the teeth was the result of a natural progression of the dental condition that existed prior to service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for the asserted dental condition in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination-for example, does the examiner lack the expertise to render such an opinion, or is some additional testing or information needed, and possibly available, that would permit an opinion. If so, a qualified examiner should provide an opinion and/or the additional testing should be accomplished. If the examiner cannot provide an opinion because it cannot be determined from current medical knowledge whether a specific in-service injury or disease can possibly cause the claimed condition, or the actual cause cannot be selected from multiple potential causes, this should be fully explained. The examiner must provide a rationale for each opinion given. 3. The RO/AMC shall schedule the Veteran for a VA genitourinary examination to ascertain the precise nature and severity of all residuals of his in-service circumcision. The entire claims file must be made available to the examiner, and the report of examination must include a discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies shall be accomplished (with all results made available to the examining physicians prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner is requested to identify all residuals attributable to the Veteran's in-service circumcision, to include any damage to the urethra, urinary dysfunction, voiding dysfunction, and sexual dysfunction. If any of the reported symptoms are attributable to a nonservice-connected disability, such should be reflected in the examination report. The examiner should also describe the severity of the Veteran's scarring on the penis shaft by rendering responsive to the criteria for rating scars, to include measurement of the length and width of the scars, as well as the area of the scarring in square inches. If the scarring causes limitation of function, the examiner should describe such limitation, as appropriate. The examiner is advised that all findings or lack thereof, described above must be addressed so that the Board may rate all residuals of the Veteran's in-service circumcision in accordance with the appropriate rating criteria. In addition, the examiner must specifically comment on whether the Veteran has any additional residuals not yet considered by the Board. The clinical findings and reasons upon which any opinion is based should be clearly set forth. The examiner is advised that the Veteran is competent to report his symptoms, and such reports must be specifically acknowledged and considered in formulating any opinions. The examiner is also asked to comment on the impact of the claimed increase in severity of the Veteran's disability, if any, on the his employment and activities of daily life. A complete rationale for any opinion expressed shall be provided. 4. The RO/AMC will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. The Veteran is hereby reminded that failure to report for any scheduled VA examination without cause may adversely affect the outcome of his claims. 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims 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). DENNIS F. CHIAPPETTA JACQUELINE E. MONROE Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals __________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs