Citation Nr: 1325587 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 10-00 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE 1. Entitlement to an initial evaluation in excess of 30 percent for recurrent major depressive disorder prior to November 5, 2011. 2. Entitlement to an initial rating in excess of 50 percent for recurrent major depressive disorder for the period since November 5, 2011. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from July 1979 to July 1982. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska which, in part, granted service connection for recurrent major depressive disorder and assigned a 30 percent evaluation, effective May 19, 2009. In March 2011, the Veteran presented testimony in a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder. In an October 2011 decision, the Board remanded this issue for additional development. In an August 2012 rating decision, the RO granted a higher disability rating of 50 percent for recurrent major depressive disorder, effective November 5, 2011. As a higher schedular evaluation for this disability is possible, the issue of entitlement to an initial rating in excess of 50 percent since November 5, 2011 remains before the Board on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. Prior to November 5, 2011, the Veteran's recurrent major depressive disorder symptoms are indicative of occupational and social impairment with no more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. Since November 5, 2011, the Veteran's recurrent major depressive disorder symptoms are indicative of reduced reliability and productivity. CONCLUSIONS OF LAW 1. For the period prior to November 5, 2011, the criteria for entitlement to an initial disability evaluation in excess of 30 percent for recurrent major depressive disorder have not been met or approximated. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9434 (2012). 2. For the period since November 5, 2011, the criteria for entitlement to an initial disability evaluation in excess of 50 percent for recurrent major depressive disorder have not been met or approximated. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9434 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and 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. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided notice to the Veteran in a June 2009 letter, prior to the date of the issuance of the appealed June 2009 rating decision. The June 2009 letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The June 2009 letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, for initial rating claims or claims for an earlier effective date, 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, as 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 (NOD) with the rating or the effective date of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of service, VA treatment records and the reports of June 2009 and November 2011 VA examinations. The June 2009 and November 2011 VA examination reports reflect that the VA examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. As such, the Board finds that the June 2009 and November 2011 VA examination reports are sufficient upon which to base a decision with regard to this claim. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative on his behalf. The Board finds that no additional RO action to further develop the record on the claims is warranted. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran is currently assigned an initial 30 percent rating for recurrent major depressive disorder prior to November 5, 2011, and a 50 percent rating, from November 5, 2011, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434. The Board notes that psychiatric disabilities other than eating disorders are rated pursuant to the criteria for General Rating Formula. See 38 C.F.R. § 4.130. Under the general rating formula, a 30 percent rating requires 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 conversion 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). A 50 percent rating requires 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 requires 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 affected 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); and inability to establish and maintain effective relationships. A 100 percent rating is assigned when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Board notes that in accordance with the general rating formula, a maximum 100 percent rating is applicable if the manifestations of the service-connected psychiatric disorder result in total occupational and social impairment. Although the rating formula lists specific symptoms that are indicative of total impairment, the Court has held that the symptoms listed in the rating formula are only examples, and that evidence of those specific symptoms is not required to show that the veteran is totally disabled. In rating a mental disability, VA is required to consider all symptoms that affect her social and occupational functioning, and not limit consideration to those symptoms listed in the rating formula. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In other words, the primary consideration is whether the manifestations of the service-connected psychiatric disorder result in total social and occupational impairment, regardless of whether the Veteran demonstrates the symptoms listed in the rating formula. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). While the rating schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. In addition to recurrent major depressive disorder, for which service connection has been established, the record shows an additional diagnosis of depression not otherwise specified (NOS). It is now well-settled that 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 which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). The medical evidence in the instant case does not differentiate between the symptomatology associated with the Veteran's recurrent major depressive disorder and that resulting from his nonservice-connected psychiatric disorders. Accordingly, for the purposes of this decision, the Board will attribute all of the Veteran's psychiatric symptoms to his service-connected major depressive disorder. Factual Background and Analysis The Veteran underwent a VA examination in June 2009. He reported that he had been married once but was divorced. He currently lived with his mother. He reported not having many social relationships. He had a "couple" of friends but did not get to see them very often as he had been a student for the past 4 years and did not have time for anything and did not feel like doing anything. He enjoyed gardening but was unable to because of his bad back. He volunteered a couple of days a week at the local VA where he answered phones and scheduled appointments in the mental health clinic. He reported making a suicide attempt in 2004 which resulted in him being hospitalized overnight and put him in a crisis center for a week. He had few friends, socialization or leisure activities. He had received treatment for drug and alcohol problems. He reported experiencing depressed feelings on a regular basis throughout the year. On examination, he was neatly groomed and appropriately dressed. His psychomotor activity and speech were unremarkable. He was cooperative, friendly, relaxed and attentive. His affect was blunted and flat. Regarding his mood, he reported feeling anxious, scared, sad and mad but at the same time hopeful that things would get better. He was sometimes lonely. His orientation was intact to person and time. His thought process and thought content was unremarkable. He had no delusions and understood the outcome of his behavior. He had no hallucinations and had no inappropriate behavior. He did not have obsessive/ritualistic behavior, did not have panic attacks and there was no presence of homicidal or suicidal thoughts. He was able to maintain minimal personal hygiene and there were no problems with activities of daily living. His remote, recent and immediate memory was normal. He was capable of managing his financial affairs. The diagnosis was major depressive disorder along with substance abuse in remission. A GAF score of 60 was assigned. The examiner noted that there was not total occupational and social impairment due to mental disorder signs and symptoms. There was also not total occupational and social impairment due to mental disorder signs and symptoms that resulted in deficiencies in judgment, thinking, family relations, work, mood or school. There was not reduced reliability and productivity due to mental disorder symptoms. However, there was occasional decrease in work efficiency and intermittent periods of inability to perform occupational task due to mental disorder signs and symptoms but with generally satisfactory functioning. The examiner noted that the Veteran reported that he had depressed feelings on a regular basis throughout the past year. While he tried to not think about it, he indicated that he was probably depressed 60 to 75 percent of the time. A July 2009 VA treatment report noted that the Veteran was feeling more irritable. He was cooperative and pleasant with good hygiene. His affect was restricted and his mood was described as depressed and anxious. His speech was spontaneous with normal tone and appropriate vocabulary. His thought processes were goal-directed and logical. No psychosis was noted. His judgment and insight were excellent and his psychomotor activity was within normal limits. The diagnosis was depression NOS, rule out adjustment reaction. A GAF score of 65 was assessed. An August 2009 VA treatment note diagnosed the Veteran with major depressive disorder. A GAF score of 55 was assigned. A May 2011 VA psychology consultation noted that the Veteran had ongoing difficulties with dysphoria, irritability, decreased attention and concentration, short-term memory, anhedonia, fatigue, lack of motivation, ease at angering and stress related to upcoming surgery. He reported that since he was informed of the need for the removal of his tumors, depression and other symptoms had worsened. He reported that he attempted suicide in 2005 due to poorly controlled pain and not being able to tolerate the level of pain that he had. He denied any attempts since then and his pain is reportedly much better controlled. He had a significant substance use history but had been absent from alcohol since 1995 and other drugs since 1998. He currently lived with his mother and worked as a medical clerk for the VA Medical Center. He was not in a significant relationship and had not dated since 1998. On examination, he was alert and attentive. His behavior was cooperative and reasonable. His affect was congruent with his mood and his speech was of the normal rate and rhythm. He had no perceptual disturbances and his thought process and association was normal and coherent. There was no unusual thought content. He convincingly denied suicidal ideation. His insight and judgment were good and his memory was intact. He was of no significant risk of danger to himself or others. The diagnosis was major depressive disorder and polysubstance abuse and alcohol dependence in sustained remission. He was assessed with a GAF score of 55. In June 2011 the Veteran underwent a psychiatry consultation as he was admitted with suicidal ideations. The treating physician noted that the Veteran's insight and judgment were impaired due to delirium and confusion. The diagnosis was post-operative delirium that was secondary to medications and recent hypoxia. A GAF score of 30 was assigned. A follow-up treatment note in June 2011 noted that the Veteran's apparent delirium had cleared with the reduction of medications. The Veteran had no suicidal ideations or thoughts of harming himself. He no longer appeared cognitively incapacitated. The diagnosis was delirium due to prescribed medications, resolved. A July 2011 VA mental health treatment note indicated that the Veteran had a recent diagnosis of a rare form of cancer. He reported that his current depression was "out of hand" and that he "shut the world out of his life". He felt that his friends had let him down by not following through on promises regarding transportation and visiting him. He described himself as scared and feeling consumed at home. He was frustrated by the limitations he was under as a result of his cancer and back disability. He adamantly denied thoughts of self harm at this time. He endorsed a number of symptoms of depression including decreased appetite with a 15 pound loss in the last month, feelings of hopelessness, decreased self worth, depressed mood, social isolation, decreased energy and motivation, increased sleep and anhedonia. It was possible that some of these symptoms were the result of his recent procedure and infection (i.e. increased need for sleep and decreased energy). He continued to voice benefit from therapy. His grooming and hygiene were good. His motor behavior was normal and his attitude was cooperative. His mood was neutral and his affect was appropriate/variable. His thought processes were logical and goal directed. His thought content was relevant and his insight was adequate. He had no homicidality. The diagnosis was major depressive disorder and polysubstance abuse and alcohol dependence in sustained remission. A GAF score of 55 was assigned. An August 2011 Brief Suicide Risk Assessment noted that the Veteran had suicidal thoughts in the last week that were related to his medical care and prognosis. The treating psychologist noted that the Veteran adamantly denied suicidal intent or plan and described it only as ideation related to current medical concerns. He was not judged to be a risk of harm to self at this point. A September 2011 VA treatment note indicated that the Veteran reported that he was fatigued and constantly tired which he attributed to his radiation therapy. He reported significant depression and ongoing stress at work. During the interview, his behavior was cooperative. His mood was neutral and his affect was appropriate/variable. Thought processes were logical and goal directed. His thought content was relevant and his insight was adequate. There was no homicidality. The diagnosis was major depressive disorder and polysubstance abuse and alcohol dependence in sustained remission. A GAF score of 60 was assigned. A Brief Suicide Risk Assessment noted no suicidal thoughts. Per the October 2011 Board remand instructions, the Veteran underwent a VA examination in November 2011. The examiner indicated that the Veteran had major depressive disorder. His level of impairment was best summarized as occupational and social impairment with reduced reliability and productivity. He experienced depressed mood, chronic sleep impairment, impairment of short and long term memory, flattened affect, disturbances of motivation and mood and difficultly in establishing and maintaining effective work and social relationships. He also had frequent irritability, rage and occasional suicidal ideations that affected his performance at work. On examination, he was casually dressed and his hygiene was fair. His eye contact was poor. His speech was soft and his tone of voice was low. He had psychomotor retardation. His thought process showed some pausing in making his thoughts together. There were no psychotic symptoms. He had no suicidal or homicidal ideation. His mood was severely depressed. Affect was flat. Since his last examination, his overall depressive symptoms had worsened. His sleep, even with a CPAP machine, was poor every night. As a result he was tired all of the time and his concentration was poor. He got irritated many times a week. His overall social and work functioning was affected. He had reduced reliability and productivity with his work. A GAF score of 55 was assigned. Period Prior to November 5, 2011 Based on the record, the Board finds that initial rating in excess of 30 percent for the period prior to November 5, 2011 for the Veteran's recurrent major depressive disorder disability is not warranted. The pertinent medical evidence collectively reflects that the Veteran's recurrent major depressive disorder was primarily characterized, by having few friends, socialization or leisure activities; experiencing depressed feelings on a regular basis throughout the year; and feelings of hopelessness, decreased self-worth, depressed mood, decreased energy and motivation, increased sleep and anhedonia. The Board finds that these symptoms more nearly approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, the level of impairment contemplated in the initial 30 percent disability rating for the period prior to November 5, 2011. The medical evidence does not show the Veteran to have flattened affect; panic attacks more than once a week; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; or other symptoms that are characteristic of the next higher, 50 percent rating. Rather, the June 2009 VA examination report, May 2011 treatment report and July 2011 treatment report all determined that the Veteran's thought process and association was unremarkable, normal and coherent with no unusual thought content. Additionally, while the June 2009 VA examiner noted that the Veteran reported that he had depressed feelings on a regular basis throughout the past year as well an affect that was blunted and flat, the examiner also specifically found that the Veteran had occasional decrease in work efficiency and intermittent periods of inability to perform occupational task due to mental disorder signs and symptoms but with generally satisfactory functioning. This description actually corresponds squarely with the schedular requirements for the assignment of a 30 percent disability rating. The Board notes that the GAF scores from this period range from 55 to 65. While the GAF scores of 55 and 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers), the Board again notes that the Veteran's overall symptoms during this time period more nearly approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, the level of impairment contemplated in the initial 30 percent disability rating. Additionally, the Board notes that GAF scores are only one indication of the severity of a given service-connected mental disorder. 38 C.F.R. § 4.130, Diagnostic Code 9411; see also Carpenter, supra. The Board also notes that the Veteran was assigned a GAF score of 30 in June 2011. Scores in this range reflect serious impairment in communication or judgment (e.g., suicidal preoccupation). At this time, the Veteran's insight and judgment were impaired due to delirium and confusion. The diagnosis was post-operative delirium that was secondary to medications and recent hypoxia. The Board finds that this GAF score and the accompanying symptoms were aberrational and not truly indicative of the state of the Veteran's recurrent major depressive disorder at that time as a subsequent treatment report noted that the Veteran's apparent delirium had cleared with the reduction of medications. As a result of the reduction of medications, the Veteran had no suicidal ideations or thoughts of harming himself and no longer appeared cognitively incapacitated. The treating physician specifically indicated that the Veteran's delirium due to prescribed medications had been resolved. The Veteran also had a previous suicide attempt in 2004 related to an inability to cope with pain which required hospitalization for a week. However, the record indicates that the Veteran denied any attempts since then and his pain was reportedly much better controlled. Moreover, while an August 2011 Brief Suicide Risk Assessment noted that the Veteran had suicidal thoughts in the last week that were related to his medical care and prognosis, the treating psychologist also noted that the Veteran adamantly denied suicidal intent or plan and described it only as ideation related to current medical concerns. He was not judged to be a risk of harm. Accordingly, the aforementioned discussion makes clear that for the period prior to November 5, 2011, the Veteran's recurrent major depressive disorder symptomatology has resulted in a disability picture that approximates no more than the level of occupational and social impairment contemplated in the assigned 30 percent rating under the applicable rating criteria. Period since November 5, 2011 For the period since November 5, 2011, the preponderance of the evidence does not show that the Veteran's symptoms warrant a rating in excess of 50 percent as the overall evidence of record on does not reflect that the Veteran's symptomatology, in general, was so severe as to merit an initial 70 percent evaluation for any period of the claim. In this regard, the evidentiary record was negative for obsessional rituals which interfered with routine activities, speech which was intermittently illogical, obscure or irrelevant, near-continuous panic or depression affecting his ability to function independently, spatial disorientation or neglect of personal hygiene. While the November 2011 VA examination revealed that the Veteran's thought process showed some pausing in making his thoughts together, there were no psychotic symptoms and there was no evidence of delusions. While the Board acknowledges that the Veteran reported occasional suicidal ideation, the November 2011 examination no noted suicidal ideation and there is no indication that he demonstrated any plan or intent. The Veteran did not have deficiencies in most of the areas in the criteria for a 70 percent rating nor had he been shown to have most of the symptoms listed as examples in the criteria. As the criteria for the next higher (70 percent) rating for a psychiatric disorder have not been met, it logically follows that criteria for an even higher rating (100 percent) have not been met. During this initial period there is no showing that the Veteran had gross impairment of thought processes or communication, persistent delusions, exhibited grossly inappropriate behavior; persistent danger of hurting himself or others, intermittent inability to perform activities of daily living, or disorientation to time or place. Thus, the Board finds that the Veteran's symptoms more closely approximated the criteria for 50 percent. Additionally, the GAF score of 55 at the November 2011 VA examination generally shows moderate to serious impairment and support a 50 percent rating for recurrent major depressive disorder. Moreover, the November 2011 examiner stated that the Veteran's symptoms were productive of occupational and social impairment with reduced reliability and productivity. This assessment fits squarely within the criteria for a 50 percent rating. Accordingly, the Board finds that an initial rating in excess of 50 percent for recurrent major depressive disorder for the period since November 5, 2011 is not warranted. As the preponderance of the evidence is against the claims for increased ratings, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Considerations The Board has considered the question of whether an extraschedular rating may be appropriate for the Veteran's service-connected recurrent major depressive disorder. See Bagwell v. Brown, 9 Vet. App. 157 (1966). Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.21(b) (1) (2012). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The Veteran has not identified any factors which may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful. There is no evidence in the medical records of an exceptional or unusual clinical picture. The record demonstrates that the Veteran has not required hospitalization as a result of his service-connected recurrent major depressive disorder disability. Further, the record does not demonstrate any other reason why an extraschedular rating should be assigned. Accordingly, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) is not warranted. ORDER Entitlement to an initial evaluation in excess of 30 percent for recurrent major depressive disorder prior to November 5, 2011 is denied. Entitlement to an initial rating in excess of 50 percent for recurrent major depressive disorder for the period since November 5, 2011 is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs