Citation Nr: 1323211 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 10-02 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial higher rating in excess of 10 percent for undifferentiated somatoform disorder and moderate dementia with cognitive and mood problems prior to July 17, 2009. 2. Entitlement to rating in excess of 70 percent for undifferentiated somatoform disorder and moderate dementia with cognitive and mood problems from July 17, 2009 to August 28, 2012. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active service from April 1947 to March 1950. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, in which the RO granted a claim of service connection for undifferentiated somatoform disorder and moderate dementia (which was characterized as mild vascular dementia and undifferentiated somatoform disorder) and assigned a 10 percent rating, effective March 23, 2005 the date of claim. The Board previously remanded this issue in August 2012 for further development. In a March 2012 rating decision, the RO assigned a higher 70 percent rating, effective July 17, 2009, for the Veteran's service-connected undifferentiated somatoform disorder and moderate dementia. Subsequently, in a January 2012 rating decision, the RO awarded a maximum 100 percent rating, effective August 28, 2012, representing a full grant of the benefit sought on appeal as of that date. However, where there is no clearly expressed intent to limit the appeal to entitlement to a specified disability rating, the RO and Board are required to consider entitlement to all available ratings for that condition. AB v. Brown, 6 Vet. App. 35, 39 (1993). As such, the period from the date of claim to August 12, 2012 remains in appellate status, and the issues on appeal have been characterized as set forth on the front page of this decision. The Board recognizes that the RO has also characterized the issue as including entitlement to an earlier effective date for the maximum 100 percent rating prior to August 28, 2012. However, as noted above, this period is already considered on appeal as the Veteran is seeking a higher initial rating from the date of service connection and the Board must consider all available ratings during this period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). The issues of entitlement to service connection for hepatitis C, bilateral hearing loss and tinnitus as well as entitlement to special monthly compensation based on the need for aid & attendance/housebound status were also on appeal and remanded by the Board in the August 2012. However, in subsequent rating decisions issued in January and May 2013, the RO granted these issues. Thus, as this was a full grant of the benefits sought on appeal, these matters are no longer in appellate status. Where a claimant or the record raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for a total disability rating based on individual unemployability (hereinafter referred to as TDIU). Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009). In the instant case, in a May 2010 rating decision, the RO granted a TDIU, effective November 24, 2009, the date of claim. The Veteran did not initiate an appeal from this determination. Accordingly, any claim with respect to a TDIU is not currently before the Board. A review of the Veteran's Virtual VA electronic record reveals that additional VA treatment records dated through May 2013 have been associated with the record. However, the most recent supplemental statement of the case issued in May 2013 indicated that only records through August 2012 have been reviewed. Nevertheless, the additional treatment records through May 2013 do not address the severity of the Veteran's psychiatric disorder. As such, they are not pertinent to the claim and thus, waiver of RO consideration of this evidence is not necessary. 38 C.F.R. § 20.1304(c) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Prior to July 17, 2009, the Veteran's service-connected undifferentiated somatoform disorder and moderate dementia with cognitive and mood problems was productive of no more than occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, but without occasional decrease in work efficient and intermittent period of inability to perform occupational tasks. 2. From July 17, 2009 to August 28, 2012, the Veteran's service-connected undifferentiated somatoform disorder and moderate dementia with cognitive and mood problems was productive of occupational and social impairment with deficiencies in most areas, but without total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to July 17, 2009, the criteria for entitlement to an initial disability evaluation in excess of 10 percent for the Veteran's service connected undifferentiated somatoform disorder and moderate dementia with cognitive and mood problems have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.130, Diagnostic Codes 8045-9305 (2012). 2. From July 17, 2009 to August 28, 2012, the criteria for entitlement to a disability evaluation in excess of 70 percent for the Veteran's service connected undifferentiated somatoform disorder and moderate dementia with cognitive and mood problems have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.130, Diagnostic Codes 8045-9305 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the instant case, the Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's post-service reports of VA treatment and VA examinations. As noted above, additional VA treatment records dated from June 2010 to May 2013 have been associated with the Veteran's Virtual VA electronic record. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. The Board recognizes that the record shows that Veteran was awarded Social Security Administration (SSA) disability benefits in 1985. The Social Security Administration (SSA) decision and accompanying records are not of record. However, given that the Veteran was awarded suck benefits back in 1985, these records would not address the current severity of the Veteran's psychiatric disorder since the date of the Veteran's claim in 2005. Moreover, the Veteran has reported at the VA examinations that he has no history of mental health treatment. Likewise, given the lack of any mental health treatment, it would be reasonable to assume that the Veteran's SSA records would not include any pertinent psychiatric treatment records. Further, there has been no argument that the SSA records are pertinent to the claim being adjudicated in this decision as to require that additional adjudication resources be expended to obtain these records. See 38 U.S.C.A. § 5103A(b),(c); Baker v. West, 11 Vet. App. 163, 169 (1998); Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). Additionally, the Veteran was afforded VA examinations in November 2006, July 2009 and August 2012 to evaluate the severity of his service-connected psychiatric disorder. The Board finds that the VA examinations are adequate because, as discussed below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they provide detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, the Veteran has not asserted, and the evidence does not show, that his symptoms have materially worsened since the most recent August 2012 evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Moreover, again, the Veteran has since been awarded a maximum 100 percent rating based on this examination. The Board accordingly finds no reason to remand for further examination. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Finally, the Board finds that there was substantial compliance with the August 2012 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In particular, the Board in August 2012 directed the RO to contact the Veteran to identify all VA and non-VA providers who had treated him for his undifferentiated somatoform disorder. That same month, the RO sent a letter to the Veteran requesting this information. The RO was also directed to obtain any additional VA treatment records dated from May 2010, which as discussed above, was accomplished. Further, the RO was also directed to schedule the Veteran for a VA examination. As noted above, the Veteran was afforded a VA examination in August 2012 that is adequate for appellate review. Accordingly, the Board finds that there has been substantial compliance with the August 2012 Board remand directives and, therefore, no further remand is necessary. See Stegall, supra; D'Aries, 22 Vet. App. at 104 (2008). Law and Regulations Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). As in the instant case, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. The Veteran's service-connected undifferentiated somatoform disorder and moderate dementia with cognitive and mood problems was rated as 10 percent disabling prior to July 17, 2009, 70 percent disabling from July 17, 2009 and 100 percent disabling from August 28, 2012, under 38 C.F.R. §§ 4.124a, 4.130, Diagnostic Codes 8045-9305 for residuals of traumatic brain injury and cognitive impairment. See 38 C.F.R. §§ 4.124a, 4.130, Diagnostic Codes 8045-9305 (2012). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The regulations for traumatic brain injuries (TBIs) were revised during the pendency of this appeal. See 73 Fed. Reg. 54,693 (Sept. 23, 2008). The effective date for these revisions is October 23, 2008. 38 C.F.R. § 4.124, Note (5) (2012). For claims received by VA prior to that effective date, a veteran is to be rated under the old criteria for any periods prior to October 23, 2008, but under the new criteria or the old criteria, whichever are more favorable, for any period beginning on October 23, 2008. The claim is to be rated under the old criteria unless applying the new criteria results in a higher disability rating. See VBA Fast Letter 8-36 (October 24, 2008). However, a veteran whose residuals of TBI were rated by VA under a prior version of 38 C.F.R. 4.124a, Diagnostic Code 8045, will be permitted to request review under the new criteria, irrespective of whether his or her disability has worsened since the last review or whether VA receives any additional evidence. See 73 Fed. Reg. 54,693 (Sept. 23, 2008). Prior to October 23, 2008, brain disease due to trauma under Diagnostic Code 8045, purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, was to rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207). Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated at a maximum of 10 percent under Diagnostic Codes 9304, "Dementia due to head trauma." This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Codes 9304 were not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. Part 4, § 4.124a, Diagnostic Codes 8045 (2008). Revised Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2012). In the instant case, the Veteran has already been awarded separate 10 percent ratings for his TBI under Diagnostic Code 8045, post-traumatic headaches under Diagnostic Codes 8045-8100 and post traumatic seizures under Diagnostic Codes 8999-8910. As the Veteran did not appeal the ratings assigned to these disabilities, they are not currently before the Board. Rather, the only area of dysfunction currently before the Board associated with the Veteran's TBI is emotional/behavioral dysfunction. Diagnostic Code 8045 provides that this emotional/behavioral dysfunction is evaluated under § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Under the General Rating Formula for Mental Disorder as set forth under 38 C.F.R. § 4.130, a 30 percent rating is assigned when the mental disorder is manifested by occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of an 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 rating is assigned when the disorder is manifested by 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. A 70 percent rating is assigned for a mental disorder manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood due to such symptoms as suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, impaired impulse control (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), or an inability to establish and maintain effective relationships. A maximum 100 percent rating is assigned under when the mental disorder is manifested by total occupational and social impairment due to such symptoms as gross impairment in thought process 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, and memory loss for names of close relatives, own occupation, or own name. Id. The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). See also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). According to the DSM-IV, a GAF Scale score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job); a GAF score between 51 and 60 is indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers); a GAF between 61 and 70 is indicative of 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 between 71 to 80 is indicative that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more that slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in school work). Factual Background The Veteran filed his claim for service connection for in March 2005. He was afforded a neurological examination in July 2006. The claims file was not available for review. It was observed that the Veteran was in a motor vehicle accident while in service and had suffered memory problems since the accident. Otherwise, he had no other complaints. On mental status, he was awake and alert, but had difficulty giving a detailed history. The Veteran had to write most of his words down. The examiner was unable to perform mini-mental status examination due to Veteran's noncompliance, but on clock drawing test, he scored 2/3. In pertinent part, the impression was dementia, posttraumatic stress disorder and posttraumatic amnesia. Subsequently, the Veteran was afforded a VA psychiatric evaluation in November 2006. The claims file was reviewed. It was reported that the Veteran had been married for 55 years and had worked for the Texaco Corporation for 35 years, but he had not worked in the past 20 years. The Veteran denied receiving any mental health treatment of any kind, although he indicated that he had significant cognitive problems over the years. He reported experiencing forgetfulness, but denied any anxiety, depression or mood problems. His wife, who accompanied him to the examination, helped him compensate for his lack of cognitive ability. The Veteran also denied any psychosis or suicidal/homicidal ideas. He further denied any personal history of substance abuse or arrests. With respect to his job, he indicated that his memory problems kept him from advancing, but he functioned okay because he kept lists and other people helped him with his memory problems. With respect to his social functioning, the Veteran reported a long and pleasant marital relationship where he and his wife engaged in a variety of enjoyable activities, including dancing, camping, church activities, fishing and gardening. The Veteran was able to engage in a normal range and variety of activities of daily living without interruption of his typical daily routine. On mental status examination, the Veteran presented as quite calm and lucid, but was dependent on his wife. His thought processes were logical, coherent and relevant. He was well-dressed and groomed. He was also overall mentally intact and cooperative. He exhibited good social skills. The Veteran seemed intelligent and speech was well understood. He was oriented to time, place, person and situation. His affect was spontaneous and reasoning was good. Ability to solve arithmetic problems was poor, but his verbal comprehension was good. His concentration was fair, but his short term memory was poor. He forgot names and what to do, but he did remember lists. Overall, his sensorium was slightly cloudy. A review of psychological symptoms resulted in denial of all symptoms, including anxiety, depression, mood and anger problems, hallucinations, delusions, or any risk factors such as suicidal or homicidal ideas. The Veteran's problem behaviors had to do with forgetfulness and lack of ability to express his ideas. The examiner opined that although the Veteran was able to demonstrate significant cognitive problems, it did not seem to have interfered significantly with his social and occupational functioning. On Wechsler Adult Intelligence Scale III testing, it was observed that the Veteran had borderline ability when it came to receptive and expressive verbal skills. It may be that he had expressive aphasia. His concentration and long-term memory were within the low average range. However, his short-term memory was significantly impaired. He did very poorly on logical memory test. On Minnesota Multiphasic Personality Inventory-2 testing showed that the Veteran tended to be defensive and repress any psychological weakness. However, he may exaggerate or misperceive certain physical problems and may channel emotional problems in physical symptoms. The diagnosis was mild vascular dementia and undifferentiated somatoform disorder. A GAF score of 60 was provided. He exhibited borderline intelligence with poor short-term memory and expressive aphasia. The examiner determined that the Veteran's diagnoses were related to his accident in service. However, he opined that the Veteran did not have severe functional impairment. Although he had some significant cognitive impairment, it did not prevent him from working for 35 years as a supervisor. Furthermore, he was able to have a well-adjusted marital relationship for 55 years. Therefore, the examiner concluded that no specific functional impairment could be determined at least from this examination in terms of social and occupational endeavors. Another contemporaneous VA neurological examination again showed that the Veteran was alert and oriented to time, place and person. His performance on clock drawing was 3/4 and mini-mental state examination was 26/30. In a November 2007 notice of disagreement, the Veteran reported that he had lost memory since the accident and that his wife had to guide him through his daily life. She had to ensure that he took his medications and drive him as he was unable to drive. She also did the daily chores. The Veteran indicated that he was 100 percent disabled and asserted that he should be receiving at a 70 percent disability rating. Subsequently, the Veteran was afforded another VA neurological examination in January 2008. It was reported that the Veteran had memory loss and other cognitive problems as well as poor concentration since accident. The Veteran's limitations on daily activities of living were primarily found to be due to his physical disabilities. The Veteran was afforded another VA psychiatric examination on July 17, 2009, by the same examiner who conducted the November 2006 evaluation. The claims file was reviewed. The examiner reiterated essentially the same social and occupational history as the previous examination. Again, it was noted that the Veteran did not receive any sort of mental health treatment. He and his wife reported a steep decline in mental and physical functioning since 1985. He denied having any drug or alcohol problems. The Veteran reported poor short term memory, poor long term memory and showed very poor verbal expression. He indicated that he had difficulty finding the words to explain himself, showing signs of aphasia and poor comprehension. The Veteran was able to engage in a normal range of and variety of activities of daily living without interruption of his typical daily routine. He did have obvious mental and physical impairment and no doubt his wife had to help him some with his activities. On mental status examination, the Veteran seemed very fragile both physical and mentally. He was dependent upon his wife. His thought processes were logical, coherent and relevant. He was articulate, verbal, well-dressed, well groomed and cooperative. He exhibited good social skills, seemed intelligent and his speech was well understood. He was oriented to time, place, person and situation. His affect was flat and blunted. His reasoning was good and fund of general information was good. His concentration was extremely poor. He indicated that both short and long-term memory were impaired. He had difficulty with names and phone numbers and had to make lists in order to remember what do to. His sensorium was very cloudy. He again denied virtually all psychological symptoms. However, the examiner opined the Veteran had significant depression and mood instability because of his deplorable physical status. He denied psychosis as well as suicidal/homicidal ideas. He had a steep decline in his cognitive functioning resulting in mood instability. He was extremely dependent on his wife. He had very few social outlets. He had problems with short and long-term memory and appeared to have expressive aphasia. All of these cognitive problems significantly impaired his social functioning. Upon Wechsler testing, it was observed that his concentration and immediate memory fell within the range of mental retardation. His long-term memory was within about the average range. He had a poor response to the personal information scale and short term memory scale as well as a very slow response to the scale measuring mental control. The Minnesota personality test findings again gave the examiner the opinion that the Veteran was defensive about having emotional problems, but he did have significant mood instability. The examiner diagnosed undifferentiated somatoform disorder and moderate dementia with cognitive and mood problems. His GAF score was 45. He retained the capacity to manage his benefits. The examiner observed that the Veteran had gone through a steep decline in mental functioning since the 2006 examination. The examiner opined that the Veteran had severe impairment in cognitive functioning affecting his overall mood and mental status. Another contemporaneous neurological examination again observed memory loss and decreased concentration that impacted his occupational activities. He also had another neurological evaluation in July 2010. The examiner observed mild impairment of memory, attention, concentration or executive functions resulting in mild functional impairment. His judgment was normal and his social interaction was routinely appropriate. He was always oriented to person, time, place and situation. His subjective symptoms did not interfere with work, instrumental activities of daily living or relationships. Neurobehavioral effects did not interfere with workplace or social interaction. He was able to communicate by written and spoken language and comprehend written and spoken language. Based on findings at the July 2009 VA examination, as noted above, in March 2012, the RO increased the Veteran's disability rating to 70 percent, effective the date of the examination. Upon remand, the Veteran was afforded another VA examination on August 28, 2012. In pertinent part, the examiner determined that the Veteran had severe cognitive impairment due to his brain trauma residuals. He was in need of Aid and Attendance and was considered totally disabled and unemployable because of his dementia, which had both cognitive and mood impairment. The examiner determined that the Veteran had total occupational and social impairment. It was again noted that the Veteran was not involved in mental health treatment. The examiner also determined that the Veteran required assistance in all activities of daily living and was unable to move out his home or leave unassisted. Based on findings at the August 2012 VA examination, as noted above, in January 2013, the RO increased the Veteran's disability rating to a maximum 100 percent disability rating, effective the date of the examination. Again, the Veteran has not received any mental health treatment so VA treatment records do not address the current severity of his psychiatric disability, except to note that he had memory problems. For the most part, the records observe normal mental status, except for an August 2011 record that did document that the Veteran was depressed with pain. Analysis Prior to July 17, 2009 The Board now turns to whether an initial rating in excess of 10 percent is warranted prior to July 17, 2009. Based on the record, the Board finds that the preponderance of the evidence is against a finding of occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks to warrant the next higher rating of 30 percent. The only medical evidence during this period addressing the severity of the Veteran's psychiatric disability is the November 2006 VA examination. The examination report observed that the Veteran had no history of hospitalization or drug abuse. He had been married to his wife for 55 years, which was described as a long and pleasant marital relationship. He also had good social skills. Although he had some significant cognitive impairment, it did not prevent him from working for 35 years as a supervisor where he functioned fairly well with help. With the exception of memory problems, no other psychiatric symptoms were reported. In fact, the Veteran expressly denied all psychiatric symptoms. The examiner indicated that the Veteran's cognitive problems did not interfere significantly with his social and occupational functioning. Therefore, the examiner concluded that no specific functional impairment could be determined at least from this examination in terms of social and occupational endeavors. He also characterized the Veteran's dementia as mild. Moreover, the Veteran was given a GAF score of 60, which the Board recognizes is indicative of moderate symptoms, but the actual symptoms described in the examination report are a more accurate assessment of the disability at issue. Importantly, a GAF score reflects merely an examiner's opinion of functioning levels and in essence represents an examiner's characterization of the level of disability that by regulation is not, alone, determinative of the appropriate disability rating. See Richard v. Brown, 9 Vet. App. 266, 267 (1996). It is noted that a disability rating depends on evaluation of all the evidence, and an examiner's classification of the level of a psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage disability rating to be assigned. 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (1995). Under the circumstances, the Board must conclude that the degree of psychiatric impairment prior to July 17, 2009 was adequately contemplated by the initial 10 percent rating. In fact, at the July 17, 2009 VA examination, the same examiner noted a severe decline in functioning and this examination report was the first medical evidence documenting severe functional impairment. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his psychiatric disorder. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In sum, based on the medical evidence of record, an initial rating in excess of 10 percent for the Veteran's psychiatric disorder is not warranted prior to July 17, 2009. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). From July 17, 2009 to August 28, 2012 The Board now turns to whether a rating in excess of 70 percent is warranted from July 17, 2009 to August 28, 2012, the date a maximum 100 percent rating was awarded. However, based on the evidence of record, the Board must conclude that a higher evaluation of 100 percent is not warranted during this period. Again the July 2009 VA examination showed that the Veteran was alert and fully oriented; his thought processes and communications were not grossly impaired; and his speech was consistently within normal limits. The examiner observed that thought processes were logical, coherent and relevant. While significant depression and mood instability were observed, the Veteran did not have persistent delusions or hallucinations, or grossly inappropriate behavior. Further, there was no evidence of thoughts of suicide and of harming others. Significantly, the Veteran expressly denied suicidal and homicidal ideation. The VA examination showed that the Veteran was able to maintain minimal personal hygiene in that he was well-dressed and well-groomed. Further, although there were reports of significant cognitive effects, there had been no medical finding that the Veteran's memory loss was to such an extent that he consistently did not remember names of close relatives, his own occupation or his own name. The Veteran was still able to engage in a normal range and variety of activities of daily living. The medical evidence also showed that the Veteran was able to perform his activities of daily living. Moreover, the GAF score assigned of 45 is indicative of serious symptoms such as suicidal ideation or obsessional rituals, which are criteria under the current 70 percent rating. In other words, the GAF score assigned by a medical professional reflected the 70 percent rating criteria. The examiner made no finding of total occupational or social impairment, but rather characterized the Veteran's functional affect as severe, which is consistent with a 70 percent disability rating. In sum, the degree of impairment was adequately contemplated by the 70 percent rating. There is simply no showing of total occupational and social impairment such as to warrant the next-higher 100 percent evaluation. Again, the Board has carefully reviewed and considered the Veteran's statements regarding the severity of his psychiatric disorder. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. As noted above, the Veteran is competent to report observable symptoms. In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In conclusion, the record does not support a finding that the Veteran's psychiatric disorder caused total occupational and social impairment prior to August 28, 2012. Thus, the Board determines that the preponderance of the evidence is against the assignment of a rating in excess of 70 percent for the Veteran's psychiatric disorder from July 17, 2009 to August 28, 2012. 38 C.F.R. § 4.7. Again, as of August 28, 2012, the Veteran has been awarded a maximum 100 percent disability rating, which is considered a full grant of the benefit sought on appeal. Moreover, based on the above analysis, the evidence does not support the award of a 100 disability rating prior to August 28, 2012. Extraschedular Consideration In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)). An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected psychiatric disorder with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated. In this regard, the Veteran's staged disability ratings contemplate both his social and industrial impairment during the different periods. There are no additional symptoms that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Accordingly, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). ORDER Prior to July 7, 2009, entitlement to an initial disability rating greater than 10 percent for undifferentiated somatoform disorder and moderate dementia with cognitive and mood problems, is denied. From July 17, 2009 to August 28, 2012, entitlement to a disability rating greater than 70 percent for undifferentiated somatoform disorder and moderate dementia with cognitive and mood problems, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs