Citation Nr: 1323477 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 10-25 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial disability rating for service-connected mood disorder, in excess of 30 percent from October 15, 2009, and 70 percent from November 15, 2012. 2. Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from September 1952 to September 1954 and from June 1957 to June 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in January 2010 and April 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. By a December 2011 rating decision, the RO increased the disability rating assigned to the service-connected mood disorder to 30 percent, effective October 15, 2009. In a February 2013 decision, the Appeals Management Center (AMC) increased the disability rating to 70 percent, effective November 15, 2012. The Veteran has not expressed satisfaction with the increased ratings. This issue thus remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not ended). In July 2012, the Veteran presented sworn testimony during a personal hearing in Nashville, Tennessee, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. In an October 2012 Board decision, the claims were remanded for further evidentiary development. As will be discussed below, review of the record reflects substantial compliance with the Board's remand directives with respect to the increased rating claim . See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) continued the previous denials in a June 2013 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. The Veteran's original claim encompassed hearing loss of the right and left ears. The claim was remanded by the Board in October 2012. By a June 2013 rating decision, service connection was granted for left ear hearing loss and a noncompensable disability rating was assigned. To the Board's knowledge, the Veteran has not disagreed with that decision. That matter has accordingly been resolved. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). (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).) The issue of entitlement to service connection for right ear hearing loss is addressed in the remand that follows the decision below. FINDINGS OF FACT 1. Prior to November 15, 2012, the evidence demonstrates that the Veteran's mood disorder was manifested by anxiety, depression, sleep impairment, intrusive thoughts, irritability, and disturbances of mood and motivation. There has been no evidence of obsessional rituals; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; spatial disorientation; illogical, obscure, or irrelevant speech; suicidal ideation; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. 2. From November 15, 2012, the evidence demonstrates that the Veteran's mood disorder is manifested by impaired impulse control with periods of unprovoked irritability; depression and panic attacks; difficulty in adapting to stressful circumstances; memory loss; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; and the inability to establish and maintain effective relationships. Gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name have not been shown. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for an initial disability rating of 50 percent, but no higher, for the service-connected mood disorder have been met prior to November 15, 2012. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code (DC) 9435 (2012). 2. The criteria for the assignment of a disability rating in excess of 70 percent for the Veteran's mood disorder from November 15, 2012 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.13, 4.130, DC 9435 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.129(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that claimant is expected to provide. Here, however, the Veteran's claim for an increased initial rating for his service-connected mood disorder is a "downstream" issue in that it arose from an initial grant of service connection for this disability. Prior to the April 2010 rating decision, the RO issued letters in October 2009 and January 2010 that advised the Veteran of the evidence necessary to substantiate his claim for service connection for this disability and of his and VA's respective obligations with regard to obtaining evidence. As previously noted herein, in the April 2010 rating action, the RO granted service connection for mood disorder and evaluated this disability as 10 percent, from October 15, 2009, the date of claim. As indicated above, in a December 2011 rating decision, the RO increased the disability rating assigned to the service-connected mood disorder to 30 percent, effective October 15, 2009. In a February 2013 decision, the AMC increased the assigned disability rating to 70 percent, effective November 15, 2012. Importantly, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated. It has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional § 5103(a) notice. See Dingess v. Nicholson, 19 Vet. App. 473,490-491 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Also, the agency of original jurisdiction (AOJ) obtained the Veteran's available service treatment records (STRs) and post-service treatment records, Social Security Administration (SSA) records, and secured two examinations in furtherance of his claim. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims file. 38 C.F.R. § 3.159(c)(1)-(3). VA examinations with respect to the mood disorder claim on appeal were obtained in April 2010 and November 2012. See 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained here are sufficient, as they considered all of the pertinent evidence of record, including the statements of the Veteran, and provided explanations for the opinions stated as well as the medical information necessary to apply the appropriate rating criteria. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome here, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Accordingly, VA has no duty to inform or to assist that has been unmet. II. Analysis-Schedular Evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran is assigned a 30 percent evaluation for his service-connected mood disorder from October 15, 2009, the date of claim, and a 70 percent evaluation from November 15, 2012, the date of the most recent VA examination. As discussed below, the Board concludes that a 50 percent disability evaluation is warranted from October 15, 2009, to November 15, 2012; the previously established 70 percent evaluation from that later date should remain undisturbed. Thus, a staged rating is appropriate for the Veteran's service-connected mood disorder. The Veteran's mood disorder is evaluated pursuant to 38 C.F.R. § 4.130, DC 9435. Under this formula, a 10 percent is granted when there is 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, or symptoms controlled by continuous medication. A 30 percent evaluation is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is for assignment when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty establishing effective work and social relationships. A 70 percent evaluation is contemplated for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted when there is evidence of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation or name. The use of the term 'such as' in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase 'such symptoms as,' followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, __ F.3d ___, No. 2012-7114 (Fed. Cir. April 8, 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." The Global Assessment of Functioning (GAF) is a scale reflecting psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV). As will be discussed below, the Veteran has been assigned GAF scores ranging from 45 to 60 as determined by VA examiners and treatment providers dating from 2010 to 2012. These scores are indicative of moderate to serious impairment. According to the DSM-IV, which VA has adopted pursuant to 38 C.F.R. §§ 4.125 and 4.130, a GAF score of 41 to 50 is reflective of 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). GAF scores ranging from 51 to 60 reflect more 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). Initially, the record on appeal demonstrates that, in addition to the service-connected mood disorder, the Veteran has been diagnosed with dementia. Some treatment providers have attempted to differentiate between the memory, speech, and judgment problems associated with the Veteran's mood disorder and the nonservice-connected dementia. See, e.g., the VA psychiatric assessment dated in May 2010. However, the November 2012 VA examiner specifically determined that, aside from memory impairment, he was unable to clearly differentiate between the overlapping symptomatology. Specifically, the examiner stated that "[t]here is much overlap amongst the noted conditions. Veteran's cognitive deficit (e.g., memory impairment) is attributable to the diagnosed dementia and otherwise dementia tends to exacerbate previous affective personality traits." The Board notes that when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2011); Mittleider v. West, 11 Vet App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so). Accordingly, the Board will consider the psychiatric symptoms, as depicted by the evidence as a whole in rating the service-connected mood disorder unless clearly attributed to the other nonservice-connected neuropsychiatric diagnoses. In this case, the Veteran seeks a disability rating in excess of the currently assigned 30 percent for his service-connected mood disorder from October 15, 2009 and in excess of 70 percent from November 15, 2012. After having reviewed the record, and for reasons explained in greater detail below, the Board concludes that a 50 percent disability rating is warranted under the schedular criteria for the period dating from October 15, 2009 to November 15, 2012; however, a rating in excess of 70 percent is not warranted for the period dating from November 15, 2012. Here, in a VA psychiatric evaluation dated in July 2009, the Veteran reported drinking quite heavily since his military discharge, which continued until recent years. He endorsed becoming angry/irritable easily and stated that he was experiencing some memory problems. The Veteran further reported feeling sad and depressed at times, but denied thoughts of suicide. He also indicated that he experienced sleep problems, including difficulty going to sleep and staying asleep. The treatment provider stated that the Veteran's appearance was appropriate and his speech was at a normal rate and rhythm, although loud. The practitioner noted that the Veteran's mood was "euthymic and his affect was congruent to mood." The Veteran was oriented to person, place, and time, and demonstrated no significant impairment of thought process or content. The treatment provider noted a GAF of 60. In a September 2009 VA social work assessment, the Veteran reported feeling depressed and endorsed nightmares, flashbacks, night sweats, and intrusive thoughts of the incident in the military two or three times weekly. The treatment provider noted that the Veteran was well-oriented and denied homicidal or suicidal ideation. His affect was congruent, his insight and judgment were intact, and he was neatly dressed. The Veteran did indicate that he suffered from anxiety. A GAF of 50 was assigned at that time. In a letter dated in January 2010, the Veteran's spouse described the Veteran's persistent anger and distrust of authority figures stemming from his in-service assault. The Veteran was initially afforded a VA examination as to his acquired psychiatric disability claim in April 2010. His reported symptoms included chronic sleep impairment with nightmares and restless sleep. The Veteran indicated that he "can't function like he used to due to memory problems." He reported no suicidal or homicidal ideation. He explained that he has been married twice, and that his current marriage has lasted 36 years. He indicated that he gets along well with his wife and two adult sons. The examiner noted the Veteran's good family relationships and interpersonal interactions. The Veteran described himself as sociable and stated that he has good friends, several of whom are deceased. He endorsed "increasing problems with motivational status over recent years due to a variety of factors, including physical problems, retirement, death of good friends, and relocation from the country to a subdivision five years ago." The Veteran indicated that he tries to stay active, but is more limited now due to physical problems. He reported that he goes to the VFW Post three times a month. The examiner noted the Veteran's affect was appropriate and full, although he did manifest some teariness when talking about his sons. The Veteran's mood was agitated and dysphoric when talking about his military experiences. He indicated that he does not experience panic attacks. With respect to family relationships, the examiner indicated that the Veteran's mood disorder causes sleep-related issues in that he disturbs his wife at night. With respect to mood, the examiner noted that "the Veteran manifests some depressive mood and decreased motivation to do things." The examiner also indicated that the Veteran exhibits reduced reliability and productivity as a result of his impaired motivation. As the Veteran has not been employed for over twenty years, the examiner did not identify any work-related impairment caused by the mood disorder. A GAF of 55 was assigned. In a VA psychiatric assessment dated in May 2010, it was noted that the Veteran was a poor historian and had difficulty articulating his thoughts. The Veteran's continuing memory problems were noted; specifically, misplacing things frequently and trouble with names. Increased 'mood swings,' particularly increased irritability, were also noted. The treatment provider indicated that the Veteran was increasingly depressed and a bit anxious. The Veteran did not endorse suicidal ideation. His mood was described as euthymic and the practitioner noted that the Veteran had good family/marital relationships. The practitioner concluded that the Veteran "showed severe deficits across multiple areas of functioning including memory, abstract reasoning/judgment, fine motor speed, language (word-finding/naming, expression, intact reading), and complex attention (visual-spatial/auditory)." It was further noted that these deficits were consistent with the early stages of Alzheimer's dementia. A GAF of 45 was assigned. VA treatment records dated in November 2010 document a GAF of 55 based, in part, upon the Veteran's depression, irritability, and low energy level. A VA treatment record dated in March 2011 noted the Veteran's nightmares, bad dreams, and night sweats secondary to military trauma. A GAF of 55 was indicated. At the July 2012 Board hearing, the Veteran and his spouse testified concerning the Veteran's psychological symptomatology. Specifically, the Veteran endorsed minimal social interaction over the last six years, with the exception of attending military funerals. See the July 2012 Board hearing transcript, pg. 7. The Veteran stated that he last went to a VFW event in 2005. Id. He explained, "I just haven't felt like doing the things I was able to do before." Id. at pg. 8. The Veteran's spouse reported that the Veteran suffers from panic attacks and irritability, which affect him in social settings. Id. at pgs. 9-10. The Veteran described spending time with his immediate family on a regular basis. However, his spouse stated that he becomes "irritated and agitated at noises, activity that's anything out of routine." Id. at pg. 16. She further indicated that the Veteran rarely leaves his house. Id. at pg. 17. Pursuant to the October 2012 Board remand, the Veteran was afforded a second VA examination in November 2012 that addressed his psychological symptomatology. The examiner noted that the Veteran "manifests serious impairment in social functioning due to mood disorder and cognitive dysfunction, with the latter exacerbating the former." The examiner stated that the Veteran's psychological symptomatology is best summarized as "[o]ccupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood." The examiner further observed that the "Veteran is manifesting an increase in the previously established affective dysfunction, likely due to the noted dementia element. His cognitive dysfunction appears to be the most significant change since the prior compensation and pension examination in April 2010." The examiner documented the Veteran's increased irritability. Specifically, the Veteran's spouse reported that the Veteran's "[i]rritability and rage episodes [are] worse in the last two years with screaming in the last six months." The examiner noted that the Veteran mostly remains at home and interacts with his wife. The Veteran's spouse stated that the Veteran has not developed any friendships since losing his close friends in 1994 and 2005. She indicated that the Veteran obsesses about perceived injustices, insists on specific routines, and manifests obsessive rituals. She further indicated that he has become increasingly forgetful regarding things he is told to do as well as the names of individuals. Upon examination, the November 2012 VA examiner noted that the Veteran exhibited "preservation regarding the military trauma; pressured speech that is difficult to interrupt; circumstantial, disorganized thought process; and deficiency in immediate memory." The examiner also documented the following symptoms: depressed mood; chronic sleep impairment; mild memory loss such as forgetting names, directions, or recent events; impairment of short and long term memory; circumstantial, circumlocutory or stereotyped speech; disturbances of mood and motivation; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; and suicidal ideation. A GAF of 48 was assigned. Based on a review of the evidence, the Board concludes that an increased initial rating of 50 percent, but no higher, is warranted for the Veteran's mood disorder prior to November 15, 2012. Symptomatology warranting the assignment of a 50 percent rating includes impaired affect, impairment of memory, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board concludes that an increased rating to 50 percent, but no higher, is warranted based on the Veteran's manifested mood disorder symptomatology prior to November 15, 2012. See 38 C.F.R. § 4.3 (2012). The Board has considered the assignment of a rating in excess of 50 percent prior to November 15, 2012. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the Rating Schedule, the pending appeal as to that issue is not abrogated). Critically, the VA treatment records dated prior to November 2012 as well as the April 2010 VA examination report did not show that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Rather, the findings of the April 2010 VA examination and treatment records prior to November 2012 are indicative of occupational and social impairment, with reduced reliability and productivity. The Veteran was shown to maintain social relationships with family members and exhibited an interest in activities outside of the home. The Board recognizes that the Veteran experienced memory problems and irritability prior to November 15, 2012. See the VA examination report dated April 2010 & the VA psychiatric assessment dated May 2010. Nevertheless, the presence of certain symptoms is not necessarily determinative. These symptoms must also cause the occupational and social impairment in the referenced areas. See Vazquez-Claudio, supra. Critically, there is no indication that his occupational and social functioning was indicative of deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood prior to November 15, 2012. Accordingly, the Board concludes that a 70 percent rating is not warranted under Diagnostic Code 9435 prior to November 15, 2012. Additionally, the Board concludes that, since November 15, 2012, a rating in excess of 70 percent is not warranted. The November 2012 VA examiner's thorough and detailed report indicates that the Veteran's mood disorder and other intertwined neuropsychological symptomatology causes occupational and social impairment, with deficiencies in most areas, such as work, family relations, and mood, due to such symptoms as suicidal ideation; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; difficulty in adapting to stressful circumstances; and the inability to establish and maintain effective relationships. As indicated above, the examiner opined that the Veteran's symptoms have worsened. Additionally, total occupational and social impairment as a result of the Veteran's service-connected mood disorder have not been shown since November 15, 2012. The evidence has not shown total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting oneself or others; intermittent inability to perform activities of daily living; or disorientation to time or place. It is undisputed that the Veteran has a history of suicidal ideation as noted by the November 2012 VA examiner. Nevertheless, the evidence of record does not support a finding that such symptomatology rose to the level of persistent danger of hurting self as is contemplated for the assignment of a 100 percent disability rating. Moreover, although the Veteran's memory problems are well documented in the record, there is no evidence of memory loss for names of close relatives, own occupation, or own name. The Board recognizes that the Veteran has not been employed. However, the evidence of record does not show that his mood disorder has caused total occupational impairment. Critically, the Veteran previously reported that he stopped working as a result of his worsening hearing impairment. See the Veteran's statement dated May 1993. No medical professional has provided any opinion indicating that the Veteran's mood disorder has caused total occupational and social impairment. Accordingly, in this case, the symptoms shown in the VA treatment records and VA examinations do not equate to the symptoms contemplated for a 100 percent rating since November 15, 2012. In sum, prior to November 15, 2012, the extent and severity of the Veteran's actual mood disorder symptoms reported and/or shown are suggestive of occupational and social impairment, with reduced reliability and productivity due to such symptoms as disturbances of motivation and mood, impaired memory; depression; anxiety; and difficulty in establishing and maintaining effective work and social relationships; i.e., the level of impairment contemplated in the assignment of a 50 percent rating for psychiatric disabilities. See Mauerhan, supra, Vazquez-Claudio, supra. More severe symptomatology was not shown prior to November 15, 2012. Since November 15, 2012, the extent and severity of the Veteran's symptoms are suggestive of occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; difficulty in adapting to stressful circumstances; and the inability to establish and maintain effective relationships; i.e., the level of impairment contemplated in the assignment of a 70 percent rating for psychiatric disabilities. See Mauerhan, supra, Vazquez-Claudio, supra. More severe symptomatology has not been shown since November 15, 2012. Accordingly, and based on this evidentiary posture, the Board concludes that the totality of the evidence has shown that the Veteran's mood disorder warrants a 50 percent rating, but no higher, prior to November 15, 2012 and no higher than the previously established 70 percent evaluation from November 15, 2012. III. Additional Considerations The Board also finds that evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards. See 38 C.F.R. § 3.321 (2012). The current evidence of record does not demonstrate that Veteran's mood disorder has resulted in frequent periods of hospitalization or in marked interference with employment. Id. In this regard, the Board notes that it is undisputed that the psychiatric disorder has had some impact on the Veteran's occupational functioning, but it bears emphasis that the schedular rating criteria are designed to take such factors into account. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2012). Here, the Veteran's psychological symptoms are expressly contemplated by the criteria discussed above. 38 C.F.R. §§ 4.10, 4.40. Thus, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted. Although the Veteran has submitted evidence as to his psychiatric symptomatology, and made assertions of entitlement to a higher rating, he has not submitted evidence of unemployability, or claimed to be unemployable, specifically as a result of his service-connected mood disorder. Thus, the question of entitlement to a total disability rating based on individual unemployability due to this service-connected disability has not been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). No further discussion of a TDIU is necessary. ORDER An initial disability rating of 50 percent, but no higher, for the service-connected mood disorder is granted prior to November 15, 2012, subject to controlling regulations applicable to the payment of monetary benefits. Entitlement to a disability rating for service-connected mood disorder in excess of 70 percent disabling from November 15, 2012, is denied. REMAND After having considered the matter, and for reasons expressed immediately below, the Board finds that the remaining claim on appeal-entitlement to service connection for right ear hearing loss-must be remanded for further development. In its October 2012 action, the Board remanded the hearing loss claim for a new VA examination to address the question of whether the currently diagnosed hearing loss had its clinical onset in service or was otherwise traceable to the Veteran's military service, to include his in-service acoustic trauma/noise exposure. In its discussion, the Board noted that the Veteran had identified two articles from the Journal of Neuroscience that he claims support his contentions that his currently diagnosed hearing loss can, at least in part, be traced to in-service noise exposure. In providing an opinion as to medical nexus with regard to the claimed hearing loss, the Board instructed the examiner to "address the Veteran's competent assertions of continued hearing problems since service and provide the medical reasons for accepting or rejecting the Veteran's statements of continuity of symptoms since service." The examiner was also instructed to "specifically address the February 2006 and November 2009 articles in Journal of Neuroscience referred to above and explain why these articles do or do not support this particular Veteran's claim of a relationship to military service." Pursuant to the October 2012 remand, the Veteran was afforded a VA audiological examination in December 2012, at which time the VA examiner concluded that she was unable to provide an opinion concerning medical nexus because she was unable to review the claims file. Accordingly, a VA addendum opinion was provided in May 2013 after the examiner reviewed the file. Unfortunately, rather than addressing the questions posed in the Board's October 2012 remand, the examiner concluded as to the right ear hearing loss, "[b]ased on review of c-file including SMR and the fact that no hearing loss was present in the right ear at the Veteran's 1957 enlistment or at the separation examination in 1960 nor did any significant threshold shifts occur, right hearing loss is deemed less likely as not (less than 50/50 probability) caused by or a result of military noise exposure." While such an assessment may have a sound medical basis, the examiner failed to expressly address the Veteran's competent reports of right ear hearing loss dating from his military service. To this end, the Board notes that the absence of evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley, 5 Vet. App. at 159. Additionally, the examiner failed to address the Journal of Neuroscience articles that were specifically referenced in the Board's October 2012 remand instructions. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court held that compliance with remand instructions is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As the Board's remand instructions have not been complied with, the claim of entitlement to service connection for right ear hearing loss must be remanded so that this may be accomplished. Additionally, a review of the Veteran's claims file and Virtual VA file shows that he receives ongoing VA medical treatment. Therefore, on remand, ongoing medical records should be also obtained. 38 U.S.C.A. § 5103A(c) (West 2002). Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate releases where necessary, procure records of any treatment that the Veteran has recently received. The Board is particularly interested in records of treatment or evaluation that the Veteran may have received through the VA Nashville Healthcare System, or any other VA healthcare system or facility since November 2012. All such available documents should be associated with the claims file. 2. Thereafter, schedule the Veteran for a VA audiological examination to determine the etiology of any right ear hearing loss. The claims file including a copy of this Remand should be made available to and reviewed by the examiner. All necessary studies, including audiological testing, should be performed. Specifically, the audiologist is requested to identify auditory thresholds, in decibels, at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. The examiner should then opine as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that a currently diagnosed right ear hearing loss had its onset in service or is otherwise traceable to the Veteran's military service, to include his in-service acoustic trauma/noise exposure. The examiner should specifically address the Veteran's competent assertions of continued hearing problems since service and provide the medical reasons for accepting or rejecting the Veteran's statements of continuity of symptoms since service. In rendering his/her opinion, the examiner should also specifically address the February 2006 and November 2009 articles in the Journal of Neuroscience referred to above and explain why these articles do or do not support this particular Veteran's claim of a relationship to military service. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). The AOJ should ensure that any additional evidentiary development suggested by the examiner should be undertaken so that a definite opinion can be obtained. 3. Thereafter, readjudicate the issue of entitlement to service connection for right ear hearing loss. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a SSOC and an appropriate period of time for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs