Citation Nr: 1328569	
Decision Date: 09/06/13    Archive Date: 09/16/13

DOCKET NO.  06-07 252A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, 
Connecticut


THE ISSUES

1.  Entitlement to a disability rating of 100 percent for 
major depressive disorder (MDD) prior to March 12, 2012.

2.  Entitlement to a disability rating of 30 percent for 
cervical disc disease prior to August 10, 2011.


REPRESENTATION

Appellant represented by:	Connecticut Department of 
Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

C. J. Houbeck, Counsel


INTRODUCTION

The Veteran had active service from June 1981 to June 2002. 
 
This matter comes to the Board of Veterans' Appeals (Board) 
from a January 2005 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Hartford, 
Connecticut. 
 
In a November 2007 decision, a Decision Review Officer (DRO) 
increased the evaluation of the Veteran's MDD to 70 percent 
effective September 28, 2004, the date of his claim.  In a 
July 2012 rating action, the evaluation of MDD was increased 
to 100 percent, effective March 12, 2012.  In an August 15, 
2012 communication, the Veteran conveyed his satisfaction 
with the grant of a 100 percent evaluation, but indicated 
that he still sought a 100 percent evaluation prior to March 
12, 2012.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).  
Accordingly, as shown on the cover page, the issue has been 
re-characterized to reflect the Veteran's intent. 
 
Similarly, in the July 2012 rating action the evaluation of 
cervical disc disease was increased to 30 percent disabling 
effective August 10, 2011.  In the August 2012 
communication, the Veteran also indicated his satisfaction 
with this evaluation, but also that he still sought a 30 
percent evaluation prior to August 10, 2011.  Id.  The issue 
has thus been re-characterized on the cover page as well. 
 
In July 2009, the Veteran testified before the Board.  A 
transcript of the testimony offered at this hearing has been 
associated with the record. 
 
The Veterans Law Judge that conducted the July 2009 hearing, 
however, has since retired.  The law requires that the 
Veterans Law Judge who conducts a hearing on appeal must 
participate in any decision made on that appeal.  38 C.F.R. 
§ 20.707 (2012).  Therefore, via a February 2013 letter, the 
Veteran was offered the opportunity for a new hearing.  In 
the letter he was advised that if he did not respond within 
30 days, the Board would assume he did not want another 
hearing and proceed accordingly.  The Veteran failed to 
respond to the letter.  Therefore, the Board will consider 
the issues on appeal. 
 
The Board remanded the issues for additional development in 
June 2011 and May 2013.  The requested development and/or 
readjudication having been completed, the matter again is 
before the Board.  


FINDINGS OF FACT

1.  Prior to March 12, 2012, the Veteran's MDD was 
manifested by symptoms such as difficulty sleeping, 
intrusive thoughts, constricted affect, feelings of anger, 
depression, irritability, concentration and memory problems, 
and some impairment of relationships with others, as well as 
intermittent reports of suicidal and homicidal ideation, all 
resulting in deficiencies in most areas, but less than total 
social and occupational impairment.

2.  Prior to August 10, 2011, the Veteran's cervical disc 
disease was manifested by symptoms such as pain, slight 
limitation of motion, and arthritis confirmed by x-ray, but 
there were no incapacitating episodes.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating greater than 70 
percent prior to March 12, 2012, for MDD have not been met.  
38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 
38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, 
DC 9434 (2012).

2.  The criteria for a disability rating greater than 10 
percent prior to August 10, 2011, for cervical spine disease 
have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & 
Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 
4.10, 4.40, 4.45, 4.71a, DC 5237 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the 
Veteran's claims file.  Although the Board has an obligation 
to provide reasons and bases supporting this decision, there 
is no need to discuss, in detail, all the evidence submitted 
by or on behalf of the Veteran.  See Gonzales v. West, 218 
F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review 
the entire record, but does not have to discuss each piece 
of evidence).  The analysis below focuses on the most 
salient and relevant evidence and on what this evidence 
shows, or fails to show, on the claim.  The Veteran must not 
assume that the Board has overlooked pieces of evidence that 
are not explicitly discussed herein.  See Timberlake v. 
Gober, 14 Vet. App. 122 (2000) (the law requires only that 
the Board address its reasons for rejecting evidence 
favorable to the Veteran).

Veterans Claims Assistance Act of 2000 (VCAA)
 
With respect to the Veteran's claims, VA has met all 
statutory and regulatory notice and duty to assist 
provisions.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 
5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 
3.159, 3.326(a) (2012).

Under the VCAA, when VA receives a complete or substantially 
complete application for benefits, it is required to notify 
the Veteran and his or her representative, if any, of any 
information and medical or lay evidence that is necessary to 
substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 
3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  
In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) 
(Pelegrini II), the United States Court of Appeals for 
Veterans Claims (Court) held that VA must inform the Veteran 
of any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek 
to provide; (3) that the Veteran is expected to provide; and 
(4) request that the Veteran provide any evidence in his or 
her possession that pertains to the claim.  The requirement 
of requesting that the Veteran provide any evidence in his 
possession that pertains to the claim was eliminated by the 
Secretary during the course of this appeal.  See 73 Fed. 
Reg. 23353 (final rule eliminating fourth element notice as 
required under Pelegrini II, effective May 30, 2008).  Thus, 
any error related to this element is harmless.

VCAA letters dated in November 2004, March 2006, June 2011, 
and May 2013 fully satisfied the duty to notify provisions.  
See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 
C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187.  The 
Veteran was advised that it was ultimately his 
responsibility to give VA any evidence pertaining to the 
claims.  The letters informed him that additional 
information or evidence was needed to support his claims, 
and asked him to send the information or evidence to VA. 
 See Pelegrini II, at 120-121.  The March 2006 letter also 
explained to the Veteran how disability ratings and 
effective dates are determined.  See Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006).

As noted above, the Veteran also was afforded a hearing 
before an Acting Veterans Law Judge (AVLJ) during which he 
presented oral argument in support of his claims.  In Bryant 
v. Shinseki, 23 Vet. App. 488 (2010), the United States 
Court of Appeals for Veterans Claims (Court) held that 38 
C.F.R. § 3.103(c)(2) (2011) requires that the VLJ/AVLJ/DRO 
who chairs a hearing fulfill two duties to comply with the 
above the regulation.  These duties consist of (1) the duty 
to fully explain the issues and (2) the duty to suggest the 
submission of evidence that may have been overlooked.  As 
noted above, the Veteran was offered the opportunity to 
testify in another Board hearing because the AVLJ conducting 
the original hearing had retired, to which the Veteran did 
not respond.  This offer to appear at another hearing cured 
any potential defect in the July 2009 Board hearing.   
 
Furthermore, even if any notice deficiency is present in 
this case, the Board finds that any prejudice due to such 
error has been overcome in this case by the following: (1) 
based on the communications sent to the Veteran over the 
course of this appeal, the Veteran clearly has actual 
knowledge of the evidence the Veteran is required to submit 
in this case; and (2) based on the Veteran's contentions as 
well as the communications provided to the Veteran by VA, it 
is reasonable to expect that the Veteran understands what 
was needed to prevail.  See Shinseki v. Sanders/Simmons, 129 
S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 
F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated 
on insufficiency of notice since its purpose had been 
served.").  In order for the Court to be persuaded that no 
prejudice resulted from a notice error, "the record must 
demonstrate that, despite the error, the adjudication was 
nevertheless essentially fair."  Dunlap v. Nicholson, 21 
Vet. App. 112, 118 (2007).  

In this case, the Veteran is represented by an experienced 
state service organization and they and the Veteran have 
submitted argument in support of his claims.  These 
arguments have referenced the applicable law and regulations 
necessary for a grant of an increased rating for the claims.  
Thus, the Board finds that the Veteran has actual knowledge 
as to the information and evidence necessary for him to 
prevail on his claims and is not prejudiced by a decision in 
this case.  As such, a remand for additional notice would 
serve no useful purpose and would in no way benefit the 
Veteran.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) 
(remands which would only result in unnecessarily imposing 
additional burdens on the VA with no benefit flowing to the 
Veteran are to be avoided).

The Board also concludes VA's duty to assist has been 
satisfied.  The Veteran's service treatment records and VA 
medical records are in the file.  Records from the Social 
Security Administration (SSA) also have been associated with 
the claims file.  Private medical records identified by the 
Veteran have been obtained, to the extent possible.  The 
Board acknowledges that the May 2013 Board remand directed 
that efforts be made to obtain the treatment records from a 
private psychologist, C.R.C., PhD.  Review of the evidence 
of record, however, indicates that the above individual is a 
VA employee and has been providing the Veteran treatment 
through VA, records of which have been associated with the 
claims file.  The Veteran has at no time referenced 
outstanding records that he wanted VA to obtain or that he 
felt were relevant to the claims.

For increased rating claims, the duty to assist includes, 
when appropriate, the duty to conduct a thorough and 
contemporaneous examination of the Veteran.  Green v. 
Derwinski, 1 Vet. App. 121 (1991).  In addition, where the 
evidence of record does not reflect the current state of the 
Veteran's disability, a VA examination must be conducted.  
Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. 
§ 3.327(a) (2012).

With respect to the MDD claim, the RO provided the Veteran 
appropriate VA examinations in November 2004, October 2006, 
January 2009, July 2011, and March 2012.  The examination 
reports are thorough and supported by outpatient treatment 
records.  The examination reports discussed the clinical 
findings and the Veteran's reported history as necessary to 
rate the disability under the applicable rating criteria.  
The examinations also discussed the impact of the disability 
on the Veteran's daily living.  Based on the examinations 
and the fact there is no rule as to how current an 
examination must be, the Board concludes the examinations in 
this case are adequate upon which to base a decision.  See 
Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA 
undertakes to provide a VA examination or obtain a VA 
opinion, it must ensure that the examination or opinion is 
adequate).

As to the Veteran's cervical spine disability, the Veteran 
was afforded VA examinations in November 2004, December 
2006, and August 2011.  The examination reports are thorough 
and supported by outpatient treatment records.  The 
examination reports discussed the clinical findings and the 
Veteran's reported history as necessary to rate the 
disability under the applicable rating criteria.  The 
examinations also discussed the impact of the disability on 
the Veteran's daily living.  Based on the examinations and 
the fact there is no rule as to how current an examination 
must be, the Board concludes the examinations in this case 
are adequate upon which to base a decision.  Id.

Based on the association of VA treatment records; the 
association of SSA records; the June 2011 and May 2013 VA 
notice letters to the Veteran; the July 2011, August 2001, 
and March 2012 VA examinations; and the subsequent 
readjudication of the claims (including consideration of 
extraschedular ratings and separate ratings for 
radiculopathy), the Board finds that there has been 
substantial compliance with its June 2011 and May 2013 
remand directives.  See Stegall v. West, 11 Vet. App. 268, 
271 (1998) (a remand by the Board confers upon the claimant, 
as a matter of law, the right to compliance with the remand 
instructions, and imposes upon the VA a concomitant duty to 
ensure compliance with the terms of the remand); see also 
D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. 
West, 13 Vet. App. 141, 146-47 (1999). 
 
As there is no indication that any failure on the part of VA 
to provide additional notice or assistance reasonably 
affects the outcome of this case, the Board finds that any 
such failure is harmless.  See Mayfield v. Nicholson, 19 
Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. 
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Increased Rating

MDD prior to March 12, 2012

Disability ratings are assigned, under a schedule for rating 
disabilities, based on a comparison of the symptoms found to 
the criteria in the rating schedule.  38 U.S.C.A. § 1155 
(West 2002); 38 C.F.R. Part 4 (2012).  When evaluating a 
mental disorder, the rating agency shall consider the 
frequency, severity, and duration of psychiatric symptoms, 
the length of remissions, and the Veteran's capacity for 
adjustment during periods of remission.  The rating agency 
shall assign an evaluation based upon all the evidence of 
record that bears on occupational and social impairment, 
rather than solely upon the examiner's assessment of the 
level of disability at the moment of the examination.  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 (2012).  If 
there is a question as to which evaluation to apply to the 
Veteran's disability, the higher evaluation will be assigned 
if the disability picture more nearly approximates the 
criteria for that rating.  Otherwise, the lower rating will 
be assigned.  38 C.F.R. § 4.7 (2012).  

The degree of impairment resulting from a disability is a 
factual determination and generally the Board's primary 
focus in such cases is upon the current severity of the 
disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 
(1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994).  
However, staged ratings are appropriate for an increased 
rating claim when the factual findings show distinct time 
periods where the service-connected disability exhibits 
symptoms that would warrant different ratings.  Hart v. 
Mansfield, 21 Vet. App. 505 (2007).

As discussed above, currently the Veteran's disability 
rating is 70 percent for the period on appeal prior to March 
12, 2012.  The Veteran claims the rating does not accurately 
depict the severity of his condition at that time.  

The General Rating Formula for Mental Disorders provides, in 
pertinent part:

Occupational and social impairment, with 
deficiencies in most areas, such as 
work, school, family relations, 
judgment, thinking, or mood, due to such 
symptoms as: suicidal ideation; 
obsessional rituals which interfere with 
routine activities; speech 
intermittently illogical, obscure, or 
irrelevant; near-continuous panic or 
depression affecting the ability to 
function independently, appropriately 
and effectively; impaired impulse 
control (such as unprovoked irritability 
with periods of violence); spatial 
disorientation; neglect of personal 
appearance and hygiene; difficulty in 
adapting to stressful circumstances 
(including work or a worklike setting); 
inability to establish and maintain 
effective relationships . . . . . . . . 
. . . . . . . . . . . . . . . . . . . . 
. . . . 70

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 name 
. . . . . . . . . . . . . . . . . . . . 
. . . . . 100

38 C.F.R. § 4.130, DC 9434 (2012). 

Ratings are assigned according to the manifestation of 
particular symptoms.  However, the use of the term "such as" 
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 the symptoms, or their effects, that would justify 
a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 
(2002).  Accordingly, the evidence considered in determining 
the level of impairment under § 4.130 is not restricted to 
the symptoms provided in the diagnostic code.  Instead, VA 
must consider all symptoms of a Veteran's condition that 
affect the level of occupational and social impairment, 
including, if applicable, those identified in the DSM-IV 
(American Psychiatric Association: Diagnostic and 
Statistical Manual of Mental Disorders (4th ed. 1994)).  Id.

Additionally, a Global Assessment of Functioning (GAF) score 
is often used by treating examiners to reflect the 
"psychological, social, and occupational functioning on a 
hypothetical continuum of mental health-illness."  See 
Richard v. Brown, 9 Vet. App. 266 (1996).  A GAF score is 
highly probative as it relates directly to the Veteran's 
level of impairment of social and industrial adaptability, 
as contemplated by the rating criteria for mental disorders.  
See Massey v. Brown, 7 Vet. App. 204, 207 (1994).  

In this case, the Board notes that the medical records 
indicate that some degree of the Veteran's psychiatric 
impairment is due to a nonservice-connected personality 
disorder.  That said, the records also state that the 
Veteran's personality disorder is aggravated by the service-
connected MDD.  In light of the foregoing and as there do 
not appear to be a clear attribution of symptoms between 
disabilities, the Board will afford the Veteran the benefit 
of the doubt and presume that all psychiatric symptoms are 
attributable to his service-connected MDD.  See Mittleider 
v. West, 11 Vet. App. 181, 182 (1998) (holding that the 
Board is precluded from differentiating between 
symptomatology attributed to service-connected disability 
and nonservice-connected disability in the absence of 
medical evidence which does so).

In the year preceding the Veteran's claim for increased 
rating, in December 2003 the Veteran reported difficulty 
involving custody issues with his wife and surgery for a 
hernia.  The Veteran was taking college classes on a full-
time basis, but was having trouble completing the course 
work that forced him to drop some of the classes.  On 
September 28, 2004, the Veteran reported that he had 
resigned from his job, while recognizing that without the 
job he might not be able to pay his mortgage and could lose 
his house.  He reported depression and some suicidal 
ideation due to the stress of the job.  

After filing his claim for an increased rating, in November 
2004 the Veteran was afforded a VA examination.  The 
examiner indicated that the Veteran had a negative affect, 
occasional fleeting suicidal ideation, a poor relationship 
with his ex-wife and former supervisors, and a "conflictual" 
relationship with his son.  By contrast, the Veteran 
reported that he was doing well in two university courses.  
The Veteran had filed a formal complaint to get his old job 
back and wanted to return to the old job.  He indicated that 
he had been treated unfairly on the job because his 
supervisors had been unwilling to accommodate his medical 
problems and class schedule.  The Veteran reported a good 
relationship with his daughter and a female veteran with 
whom he was living.  The examiner found no significant 
cognitive impairment or evidence of behavioral or impulse 
control.  The examiner diagnosed MDD and personality 
disorder with passive aggressive narcissistic elements and 
assigned a GAF score of 50.

In May 2005, the Veteran was hospitalized for homicidal 
ideation, specifically directed at his ex-wife, although 
there was not a high likelihood that he would follow through 
on his threats.  The assigned GAF score was 30 at the time 
of admission.  By June 2005, the Veteran's GAF score was 65 
and he was noted to have no disorientation, no suicidal 
ideation, and no homicidal ideation.  Later in June 2005, 
however, other VA treatment professionals assigned a GAF 
score of 45 and noted that while the Veteran denied current 
suicidal or homicidal ideation that his anger problems made 
him a long-term risk for aggressive actions towards himself 
and others.  Several days later, the Veteran's GAF score was 
40.  On examination, the Veteran denied suicidal or 
homicidal ideation and was not deemed to be an imminent risk 
to himself or others.  In July 2005, the Veteran reported 
suicidal ideation, but without intent.  The Veteran was 
judged not to be a risk of danger to others.  In October 
2005, as part of the Veteran's claim for SSA benefits, a 
vocational assessment was performed.  The conclusion was 
that the Veteran was capable of performing work requiring a 
light level of exertion and that did not require him to 
remember, understand, or carry out detailed instructions.  
Several jobs the Veteran would be able to perform were table 
worker, folder laundry, and cafeteria worker.  In January 
2006, the Veteran had a GAF score of 56.  In May 2006, the 
Veteran was noted to have poor grooming, but denied 
delusions, hallucinations, or suicidal or homicidal 
ideation.

The Veteran was afforded a VA examination in October 2006.  
The examiner noted review of the claims file.  The Veteran's 
primary complaints were anger and feeling mistreated by 
others.  The Veteran reported social problems with numerous 
individuals, but otherwise reported no significant 
psychological or psychiatric symptoms.  The Veteran believed 
that he would never be able to return to full-time work due 
to physical problems.  The Veteran, however, was taking five 
college courses in pursuit of an associate's degree, 
although the examiner indicated that the Veteran could not 
speak realistically or coherently about how the classes 
would help him obtain or maintain employment.  The Veteran 
was doing odd jobs in exchange for services such as 
haircuts.  The Veteran denied any male friends, but did have 
a couple female acquaintances.  The Veteran reported an 
"okay" relationship with his children.  The Veteran denied 
suicidal or homicidal ideation or evidence of cognitive 
impairment or behavioral or impulse control.  The examiner 
diagnosed dysthemia and personality disorder with passive-
aggressive, narcissistic, and sadomasochistic elements and 
assigned a GAF score of 50.  The examiner indicated that the 
personality disorder was the primary clinical dysfunction in 
the Veteran's life, which contributed most to his 
unemployment, but that his physical problems also were 
contributing factors.  The examiner did not believe the 
Veteran was interested in gainful employment, nor likely 
would be in the future.

A June 2007 VA treatment record noted that the Veteran had 
poor grooming, but that this was typically how he presented.  
The Veteran continued to attend college classes.  He denied 
delusions, hallucinations, or suicidal or homicidal 
ideation, intent or plan.  In December 2007, the Veteran's 
GAF score was 55.  The Veteran stated that he had a close 
relationship with his children and a supportive mother.  

In January 2009, the Veteran was afforded another VA 
examination.  The examiner noted review of the Veteran's 
claims file.  The examiner indicated that there was little 
change since the previous VA examination, with considerable 
negative affect, anger, and underlying frustration with 
others.  At the Veteran's last psychiatric treatment with 
VA, in June 2008, he continued to complain about problems 
with the court and his ex-wife over child support payments.  
The June 2008 treatment provider indicated that the Veteran 
had made some improvements, particularly with his 
schoolwork.  Currently, the Veteran exhibited little change 
from four years previously.  He continued to demonstrate 
hostility towards his ex-wife and reported having done 
poorly with his coursework the previous semester following a 
motor vehicle accident with subsequent physical problems.  
The Veteran reported sleep disturbance, disturbing dreams, 
mood lability, and problems with anger.  He had recently 
helped a friend with some restorative work in her salon and 
was volunteering with the Boy Scouts.  One or two years 
previously he also had coached his daughter's softball team 
to the state finals.  He currently lived in an apartment 
with his son and daughter-in-law and had had a "girlfriend" 
for the previous few months, although their relationship was 
of longer standing.  The Veteran also was a member of a 
fraternity.  On examination, there was no evidence of a 
thought disorder, delusions, hallucinations, but he did 
report suicidal and homicidal ideation.  His insight was 
poor and judgment fair.  The examiner diagnosed MDD and 
assigned a GAF score of 65.

The Veteran was afforded another VA examination in July 
2011.  The examiner discussed in depth the prior January 
2009 VA examination findings and subsequent treatment.  
Currently, the Veteran reported a depressed and irritated 
mood.  His stressors included having failed out of college, 
estrangement from his parents, anger towards his ex-wife, 
and stress involving his daughter.  The Veteran reported a 
depressed mood, social isolation and avoidance, anergia, 
disturbing dreams, and concentration and memory problems.  
The Veteran did enjoy playing games, watching movies, and 
doing puzzles and art projects.  The Veteran stated that he 
had stopped working in 2005, after turning down a full time 
position because he was unsure of his ability to show up 
reliably due to physical problems.  On examination, the 
Veteran's affect was dysphoric and constricted, but he 
denied hallucinations or delusions and also denied suicidal 
or homicidal ideation.  Cognition was grossly intact, but 
insight and judgment were poor.  The examiner diagnosed 
depressive disorder not otherwise specified and personality 
disorder not otherwise specified.  The examiner concluded 
that there was some apparent worsening of the Veteran's 
overall level of psychosocial function since the January 
2009 VA examination, as he had failed out of school and 
lived in a generally isolated environment.  It was 
impossible, according to the examiner, to distinguish 
between the symptoms attributable to his depressive disorder 
and his personality disorder.  These problems caused major 
impairment of social function and currently precluded 
obtaining or maintaining gainful employment.

Finally, on March 12, 2012, the Veteran was afforded a VA 
examination on which his 100 percent rating from that date 
was based.    

After a careful review of the record and for the reasons and 
bases expressed immediately below, the Board finds that the 
Veteran's demonstrated psychiatric symptomatology does not 
warrant an evaluation greater than the currently assigned 70 
percent rating under all potentially applicable iterations 
of DC 9434 prior to March 12, 2012.  See 38 C.F.R. § 4.7.  
In reaching that decision, the Board has considered the 
requirement of 38 C.F.R. § 4.3 to resolve any reasonable 
doubt regarding the level of the Veteran's disability in his 
favor.  As discussed in more detail above, the symptoms 
prior to March 12, 2012 are substantially consistent.  For 
this reason, further staged ratings are not applicable.  See 
Hart, 21 Vet. App. at 505.  
 
A rating greater than 70 percent prior to March 12, 2012, is 
not appropriate for any period of time prior to that date 
because the Veteran did not have both total social and 
occupational impairment during that time period.  Although 
the Veteran clearly had a serious disability, he exhibited 
few of the symptoms noted as applicable for a 100 percent 
rating.  He did not have grossly inappropriate behavior; 
persistent delusions or hallucinations; gross impairment of 
thought processes or communication; 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.  While the Veteran has 
intermittently expressed suicidal and homicidal ideation, 
the majority of treatment providers concluded that the 
Veteran was not a danger to himself or others.  While the 
Board acknowledges the June 2005 VA treatment record 
suggesting that the Veteran might be a long-term danger to 
others, the Board finds this conclusion outweighed by the 
numerous prior and subsequent treatment providers who 
concluded that the Veteran was not a danger to himself or 
others.  As such, his symptoms appear to more closely 
approximate those for a 70 percent rating, specifically 
suicidal or homicidal ideation, but without rising to the 
level required for a 100 percent rating, specifically a 
persistent danger of hurting self or others.  To the extent 
that the Veteran has demonstrated some impairment of thought 
processes or communication, he was able to be redirected and 
remained able to communicate despite these problems.  

As noted above, the Board acknowledges that a Veteran need 
not demonstrate the presence of all, most, or even some, of 
the symptoms listed as examples in the rating criteria.  See 
Mauerhan, 16 Vet. App. at 442; however, as the Court held in 
Mauerhan, without the examples noted in the rating criteria, 
differentiating a 50 percent evaluation from a 70 percent 
evaluation would be extremely ambiguous.  By extension to 
the present case, without the examples, differentiating the 
70 and 100 percent ratings would be equally ambiguous.  The 
Board is to consider all symptoms of a Veteran's condition 
that affect the level of occupational and social impairment, 
including, if applicable, those identified in the DSM-IV.  
If the evidence demonstrates that a veteran suffers symptoms 
or effects that cause occupational or social impairment 
equivalent to what would be caused by the symptoms listed in 
the DC, the appropriate equivalent rating should be 
assigned.  Id.  In this case, however, the Board concludes 
that prior to March 12, 2012, the Veteran's psychiatric 
symptoms did not cause total occupational and social 
impairment as contemplated for a 100 percent rating. 

With respect to the Veteran's occupational impairment, the 
Board acknowledges that his psychiatric symptoms result in a 
severe level of impairment and possibly total occupational 
impairment.  In that regard, the Board notes that the 
Veteran originally left his part-time job because he did not 
wish to work full time due to his class schedule and 
concerns that his health problems would adversely affect his 
reliability.  Indeed, for some time thereafter the Veteran 
expressed a desire to return to work.  That said, several 
medical professionals have indicated prior to March 12, 
2012, that the Veteran's psychiatric problems either would 
preclude gainful employment or would make such employment 
very difficult.  As such, for the purpose solely of this 
decision the Board will not dispute that the Veteran had 
total occupational impairment prior to March 12, 2012.    

That said, the Board concludes that prior to March 12, 2012, 
the Veteran did not have total social impairment.  While he 
did have significant social isolation, he retained 
relationships with his children and multiple friends.  
Moreover, during much of the appellate time period the 
Veteran took in-person college classes.  While the Veteran 
stopped taking these courses during the appellate time 
period, the reason he stopped was not due to an inability to 
interact with professors or fellow students, but due to an 
inability to timely complete assignments due to 
concentration and other problems.  The records also reflect 
involvement in multiple organizations and activities, such 
as Boy Scouts and athletic coaching.  In addition, the 
Veteran reported during his July 2009 Board hearing that he 
was able to go out in crowds and otherwise interact with 
other people.  While there certainly were difficulties at 
times with his children and others prior to March 12, 2012, 
they did not constitute total social impairment. 

The Board acknowledges the Veteran's period of 
hospitalization in 2005 for psychiatric symptoms.  
Initially, the Board notes that this period did not meet the 
21 day requirement for a temporary total disability rating 
under 38 C.F.R. § 4.29 (2012) and that the Veteran did not 
require convalescence as contemplated under 38 C.F.R. § 4.30 
(2012).  While the episode clearly involved significant 
psychiatric problems, the near contemporaneous treatment 
records from both before and after the hospitalization 
demonstrates that the severity of these problems represented 
a temporary flare-up of symptoms, as the Veteran denied 
current homicidal intent that would represent a danger to 
others (specifically his ex-wife) both before and after the 
2005 hospitalization.  

Thus, the Veteran prior to March 12, 2012 did not have both 
total social and occupational impairment sufficient to 
warrant a total schedular rating.  He did have some 
deficiencies in several areas, but the greater weight of 
evidence demonstrates that it is to a degree that is 
contemplated by the 70 percent rating assigned herein.  
Again, in determining that a rating in excess of 70 percent 
is not warranted, the Board has considered the Veteran's 
complaints regardless of whether they are listed in the 
rating criteria, but for the reasons discussed above 
concludes that prior to March 12, 2012, the Veteran's level 
of social and occupational impairment did not warrant a 
rating in excess of the assigned 70 percent rating.  While 
the Veteran may have had some of the criteria for a 100 
percent rating, see Mauerhan, 16 Vet. App. at 442, the Board 
concludes his overall level of disability did not exceed the 
criteria for a 70 percent rating prior to March 12, 2012.  

In summary, for the reasons and bases set forth above, the 
Board concludes that prior to March 12, 2012, a disability 
rating greater than 70 percent is not warranted for any time 
during that appeal period.  See Hart, 21 Vet. App. at 505.

Cervical Spine prior to August 10, 2011

Disability evaluations are determined by the application of 
a schedule of ratings based on average impairment in earning 
capacity.  38 U.S.C.A. § 1155 (West 2002).  Requests for 
increased disability ratings require consideration of the 
medical evidence of record compared to the criteria in the 
VA Schedule for Rating Disabilities.  If the evidence for 
and against a claim is in equipoise, the claim will be 
granted.  A claim will be denied only if the preponderance 
of the evidence is against the claim.  See 38 U.S.C.A. § 
5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. 
Derwinski, 1 Vet. App. 49, 56 (1990).

The degree of impairment resulting from a disability is a 
factual determination and generally the Board's primary 
focus in such cases is upon the current severity of the 
disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 
(1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994).  
However, staged ratings are appropriate for an increased 
rating claim when the factual findings show distinct time 
periods where the service-connected disability exhibits 
symptoms that would warrant different ratings.  Hart v. 
Mansfield, 21 Vet. App. 505 (2007).

If there is a question as to which evaluation to apply to 
the Veteran's disability, the higher evaluation will be 
assigned if the disability picture more nearly approximates 
the criteria for that rating.  Otherwise, the lower rating 
will be assigned.  38 C.F.R. § 4.7 (2012).  

When evaluating disabilities of the musculoskeletal system, 
38 C.F.R. § 4.40 allows for consideration of functional loss 
due to pain and weakness causing additional disability 
beyond that reflected on range of motion measurements.  See 
DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. 
§ 4.45 provides that consideration also be given to weakened 
movement, excess fatigability and incoordination.

Prior to August 10, 2011, the Veteran's cervical spine 
disability is rated as 10 percent disabling under DC 5237, 
for cervical strain.  The Veteran asserts that the current 
rating does not adequately compensate for the severity of 
his neck disability and, essentially, argues that his 30 
percent rating from August 10, 2011, should be applied to 
the date of his claim.

Effective from September 26, 2003, disabilities of the 
cervical spine are to be rated under the General Rating 
Formula for Diseases and Injuries of the Spine.  See 38 
C.F.R. § 4.71a, DCs 5235-5243.  The General Rating Formula 
for Diseases and Injuries of the Spine provides a 10 percent 
disability rating for forward flexion of the cervical spine 
greater than 30 degrees but not greater than 40 degrees; or, 
combined range of motion of the cervical spine greater than 
170 degrees but not greater than 335 degrees; or, muscle 
spasm, guarding, or localized tenderness not resulting in 
abnormal gait or abnormal spinal contour; or, vertebral body 
fracture with loss of 50 percent or more of the height.  A 
20 percent disability rating is assigned for forward flexion 
of the cervical spine greater than 15 degrees but not 
greater than 30 degrees; or, the combined range of motion of 
the cervical spine not greater than 170 degrees; or, muscle 
spasm or guarding severe enough to result in an abnormal 
gait or abnormal spinal contour such as scoliosis, reversed 
lordosis, or abnormal kyphosis.  A 30 percent disability 
rating is assigned for forward flexion of the cervical spine 
15 degrees or less; or, favorable ankylosis of the entire 
cervical spine.  A 40 percent disability rating is assigned 
for unfavorable ankylosis of the entire cervical spine.  A 
100 percent disability rating is assigned for unfavorable 
ankylosis of entire spine.  38 C.F.R. § 4.71a.

The Notes following the General Rating Formula for Diseases 
and Injuries of the Spine provide further guidance in rating 
diseases or injuries of the spine.  Note (1) provides that 
any associated objective neurologic abnormalities, 
including, but not limited to, bowel or bladder impairment, 
should be rated separately under an appropriate DC.  Note 
(2) provides that, for VA compensation purposes, normal 
forward flexion of the cervical spine is zero to 45 degrees, 
extension is zero to 45 degrees, left and right lateral 
flexion are zero to 45 degrees, and left and right lateral 
rotation are zero to 80 degrees.  The combined range of 
motion refers to the sum of the range of forward flexion, 
extension, left and right lateral flexion, and left and 
right rotation.  The normal combined range of motion of the 
cervical spine is 340 degrees.  The normal ranges of motion 
for each component of spinal motion provided in this note 
are the maximum that can be used for calculation of the 
combined range of motion.  See also Plate V, 38 C.F.R. § 
4.71a.  Note (3) provides that, in exceptional cases, an 
examiner may state that because of age, body habitus, 
neurologic disease, or other factors not the result of 
disease or injury of the spine, the range of motion of the 
spine in a particular individual should be considered normal 
for that individual, even though it does not conform to the 
normal range of motion stated in Note (2).  Provided that 
the examiner supplies an explanation, the examiner's 
assessment that the range of motion is normal for that 
individual will be accepted.  Note (4) provides that the 
rater is to round each range of motion measurement to the 
nearest five degrees.  Note (5) provides that, for VA 
compensation purposes, unfavorable ankylosis is a condition 
in which the entire cervical spine, the entire thoracolumbar 
spine, or the entire spine is fixed in flexion or extension, 
and the ankylosis results in one or more of the following: 
difficulty walking because of a limited line of vision; 
restricted opening of the mouth and chewing; breathing 
limited to diaphragmatic respiration; gastrointestinal 
symptoms due to pressure of the costal margin on the 
abdomen; dyspnea or dysphagia; atlantoaxial or cervical 
subluxation or dislocation; or neurologic symptoms due to 
nerve root stretching.  Fixation of a spinal segment in 
neutral position (zero degrees) always represents favorable 
ankylosis.  Note (6) provides that disability of the 
thoracolumbar and cervical spine segments are to be rated 
separately, except when there is unfavorable ankylosis of 
both segments, which will be rated as a single disability.  
38 C.F.R. § 4.71a.

Spine conditions can also be rated under the criteria for 
intervertebral disc syndrome, DC 5243.  DC 5243 provides a 
10 percent disability rating for intervertebral disc 
syndrome with incapacitating episodes having a total 
duration of at least one week but less than 2 weeks during 
the past 12 months; a 20 percent disability rating for 
intervertebral disc syndrome where incapacitating episodes 
have a total duration of at least 2 weeks but less than 4 
weeks during the past 12 months. A 40 percent rating is 
warranted where incapacitating episodes have a total 
duration of at least 4 weeks but less than 6 weeks during 
the past 12 months.  "Incapacitating episodes" is defined in 
Note (1) as a period of acute signs and symptoms due to 
intervertebral disc syndrome that requires bed rest 
prescribed by a physician and treatment by a physician.  
Note (2) also allows the Veteran to be rated separately for 
musculoskeletal and neurological manifestations under 
appropriate DCs if it would result in a higher combined 
evaluation for the disability.

In the year preceding the Veteran's claim for increased 
rating, an April 2004 CT scan showed no evidence of acute 
traumatic injury to C5 through C7.  June 2004 cervical spine 
x-rays showed no evidence of acute traumatic injury to the 
cervical spine.  At that time, the Veteran also denied 
radiculopathy pain.  In July 2004, the Veteran reported head 
trauma five days previously when he was hit on the head by 
his daughter, which caused increased neck pain.  July 2004 
cervical spine x-rays showed minimal degenerative changes.  
Later that month, a treatment record noted that the 
Veteran's cervical motions were mildly limited in all 
directions and that there was cervical paraspinal 
tenderness.  In September 2004, the Veteran reported neck 
pain radiating down both arms and bilateral arm numbness.  

The Veteran was afforded a VA examination in November 2004.  
The Veteran reported worsening neck pain over the previous 
year.  Initially, the Veteran denied radiation of pain, but 
on repeat questioning he detailed intermittent radiating 
pain down his arms.  In addition, the Veteran discussed 
bilateral carpal tunnel syndrome, for which he was scheduled 
for surgery and that caused intermittent numbness.  The 
Veteran also described neck stiffness.  Sensory examination 
was normal and he had normal strength other than hand grip 
strength, which the examiner noted was consistent with his 
bilateral carpal tunnel syndrome.  The Veteran's cervical 
range of motion was 50 degrees of forward flexion, 55 
degrees of extension, 25 degrees of left lateral flexion, 30 
degrees of right lateral flexion, and 60 degrees of 
bilateral lateral rotation.  All but bilateral lateral 
rotation was limited by pain.  On repetitive testing, there 
was some slowing of movement, but the examiner was uncertain 
as to the cause and there was no objective evidence of 
limitation due to pain, weakness, or tenderness.

An August 2005 MRI showed disc extrusion at C3-C4 
superimposed on a disc osteophyte complex.  There also was 
bilateral foraminal and spinal canal narrowing at that 
level.  In October 2005, the Veteran denied neurological 
symptoms and he had full muscle strength and reflexes in the 
bilateral upper extremities.  In December 2005, the Veteran 
was seen for his neck pain and denied radicular symptoms.  
In February 2006, the Veteran reported good response to 
treatment on his neck.  In September 2006, the Veteran's 
cervical range of motion was 18 degrees of flexion; 12 
degrees of extension; right lateral flexion to 10 degrees; 
left lateral flexion to 13 degrees; right lateral rotation 
to 25 degrees; and left lateral rotation to 20 degrees.  The 
Veteran also had some limited strength in the neck muscles.  
Upper extremity reflexes were hypoactive.  In October 2006, 
the Veteran again denied radicular symptoms.

In December 2006, the Veteran was afforded a general VA 
examination.  At that time, the Veteran reported suffering 
from a possible whiplash-type injury as a result of a motor 
vehicle accident in January or February 2004.  He denied any 
radicular symptoms.  The Veteran reported constant neck 
pain, but denied weakness, stiffness, or flare-ups of pain.  
On examination, cervical range of motion was to 45 degrees 
of forward flexion, extension, and bilateral lateral flexion 
and to 80 degrees of bilateral lateral rotation.  There was 
no objective evidence of painful motion and range of motion 
was not further limited on repetition by pain, fatigue, 
weakness, or lack of endurance.  The impression was cervical 
degenerative joint disease and herniated discs, without 
radicular components.  

In April 2007 and May 2007, the Veteran had no radicular 
symptoms.  In November 2007, the Veteran reported some 
numbness when lifting his arms above shoulder level.  On 
examination, there was normal range of motion, normal 
strength, and normal sensation of the upper extremities.  
The treatment provider indicated that if the numbness 
persisted, the Veteran would be referred for a neurosurgery 
consultation.

The Veteran was afforded a VA examination in December 2008 
for a separate low back disability.  On examination of the 
upper extremities, the Veteran had normal strength, 
sensation, and reflexes.  

In May 2011, the Veteran complained of numbness in his 
hands, which the treatment provider attributed to his 
history of bilateral carpal tunnel syndrome.

The Veteran was afforded another VA examination on August 
10, 2011, on which his current 30 percent rating from that 
date is based.

After a careful review of the record and for the reasons and 
bases expressed immediately below, the Board finds that the 
Veteran's demonstrated cervical spine symptomatology does 
not warrant an evaluation greater than the currently 
assigned 10 percent rating prior to August 10, 2011 under 
all potentially applicable iterations of DC 5237.  See 38 
C.F.R. § 4.7.  In reaching that decision, the Board has 
considered the requirement of 38 C.F.R. § 4.3 to resolve any 
reasonable doubt regarding the level of the Veteran's 
disability in his favor.  As discussed in more detail above, 
the symptoms prior to August 10, 2011, are substantially 
consistent.  For this reason, further staged ratings are not 
applicable.  See Hart, 21 Vet. App. at 505.  

As to assigning a rating greater than 10 percent prior to 
August 10, 2011, under the General Rating Formula for 
Diseases and Injuries of the Spine, the Board acknowledges 
the September 2006 VA treatment record with recorded ranges 
of motion that standing alone would warrant a 30 percent 
rating.  In context, however, the Board concludes that these 
ranges of motion were the result of an acute occurrence, as 
several weeks later the Veteran was afforded a VA 
examination and had full range of motion with no objective 
evidence of pain.  In addition, several months prior to the 
September 2006 treatment record the Veteran reported that 
therapy and medication were having good results on his neck 
pain.  As such, the Board concludes that the September 2006 
range of motion findings are an aberration and are not 
reflective of or supported by the other objective medical 
evidence of record prior to August 10, 2011.  The other 
evidence of record does not include range of motion findings 
of forward flexion not greater than 30 degrees or combined 
range of motion of the cervical spine of no greater than 170 
degrees such as would warrant a finding greater than 10 
percent prior to August 10, 2011.  As to granting an 
increased rating based on incapacitating episodes, there is 
no evidence of record that the Veteran had a period of 
prescribed bed rest of at least two weeks in any 12 month 
period during the appellate time period prior to August 10, 
2011.  As such, an increased rating greater than 10 percent 
is not warranted under DCs 5237 or 5243.

Separate disability ratings may be assigned for distinct 
disabilities resulting from the same injury so long as the 
symptomatology for one condition was not "duplicative of or 
overlapping with the symptomatology" of the other condition.  
See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  
Arthritis of the spine may be rated under DC 5003, for 
degenerative, hypertrophic, or osteo-arthritis.  See 38 
C.F.R. § 4.71a, DC 5003 (2012).  DC 5003 is used where there 
is evidence of arthritis and some limitation of motion, but 
not enough limitation of motion to be compensable under the 
appropriate DC.  As discussed above, the Veteran's 
disability rating under DC 5237 has been based on limitation 
of motion and a separate rating under DC 5003 would be for 
the same symptomatology.  As separate ratings may not be 
assigned for the same symptomatology, a separate 10 percent 
rating under DC 5003 for the Veteran's limitation of motion 
is not warranted in this case.  

Separate ratings for neurological manifestations may be 
warranted under 38 C.F.R. § 4.124a (2012) if supported by 
objective medical evidence.  In this regard, the Board notes 
that disability ratings for diseases of the peripheral 
nerves under DCs 8510, 8511, 8512, and the other diseases of 
the peripheral nerves are based on relative loss of function 
of the involved extremity with attention to the site and 
character of the injury, the relative impairment of motor 
function, trophic changes, or sensory disturbances.  See 38 
C.F.R. § 4.120 (2012).  For example, DC 8510 provides 
ratings for paralysis of the upper radicular group of nerves 
(fifth and sixth cervicals).  DC 8510 provides that mild 
incomplete paralysis is rated 20 percent disabling on the 
major side and 20 percent on the minor side; moderate 
incomplete paralysis is rated 40 percent disabling on the 
major side and 30 percent on the minor side; and severe 
incomplete paralysis is rated 50 percent disabling on the 
major side and 40 percent on the minor side.  Complete 
paralysis of the upper radicular group, with all shoulder 
and elbow movements lost or severely affected, hand and 
wrist movements not affected, is rated 70 percent disabling 
on the major side and 60 percent on the minor side.  38 
C.F.R. § 4.124a, DC 8510 (2012).

DC 8610 provides a rating for neuritis of the upper 
radicular group.  DC 8710 provides a rating for neuralgia of 
the upper radicular group.  

The term "incomplete paralysis" with this and other 
peripheral nerve injuries indicates a degree of lost or 
impaired function substantially less than the type pictured 
for complete paralysis given with each nerve, whether due to 
varied level of the nerve lesion or to partial regeneration.  
When the involvement is wholly sensory, the rating should be 
for the mild, or at most, the moderate degree.  The ratings 
for the peripheral nerves are for unilateral involvement; 
when there is bilateral involvement, the VA adjudicator is 
to combine the ratings for the peripheral nerves, with 
application of the bilateral factor.  38 C.F.R. 
§ 4.124a.    

The Board observes that the words "mild," "moderate" and 
"severe" as used in the various diagnostic codes are not 
defined in the VA Schedule for Rating Disabilities.  Rather 
than applying a mechanical formula, the Board must evaluate 
all of the evidence, to the end that its decisions are 
"equitable and just."  38 C.F.R. § 4.6 (2012).  Although the 
use of similar terminology by medical professionals should 
be considered, is not dispositive of an issue.  Instead, all 
evidence must be evaluated in arriving at a decision 
regarding a request for an increased disability rating.  38 
U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2012).

In this case, the Board notes conflicting evidence of 
neurological manifestations prior to August 10, 2011.  
Specifically, the Veteran reported numbness in the bilateral 
arms on multiple occasions, while denying radicular 
occasions on numerous occasions both prior and subsequent to 
his reports of numbness in the arms.  (The Board also notes 
the Veteran's numbness in the bilateral hands and wrists, 
but these problems have been specifically attributed to 
bilateral carpal tunnel syndrome and there is no medical 
evidence or competent lay evidence linking such symptoms to 
the Veteran's service-connected cervical spine disability.)  
As discussed, in September 2004 and November 2007, for 
example, reported arm or shoulder numbness and/or radiating 
pain from the neck down the arms.  By contrast, for example 
in June 2004, October 2005, December 2005, October 2006, 
December 2006, April 2007, and May 2007 the Veteran denied 
radicular symptoms.  Moreover, during the December 2008 VA 
examination for his low back, the Veteran had normal 
strength, sensation, and reflexes in the upper extremities.  
The Board also finds it significant that testing was normal 
in November 2007 at the time of the Veteran's reports of 
radicular symptomatology.  In the absence of medical 
evidence supporting a finding of right and/or left upper 
extremity radiculopathy prior to August 10, 2011 and given 
the Veteran's conflicting statements regarding any such 
symptoms, the Board concludes that the preponderance of the 
evidence is against granting a separate or higher rating 
under the DCs of the peripheral nerves under 38 C.F.R. 
§ 4.124a.

The Veteran's functional loss was considered, as the medical 
evidence shows that prior to August 10, 2011 the Veteran 
reported ongoing chronic neck pain.  38 C.F.R. §§ 4.40, 
4.45.  While the Board acknowledges that the November 2004 
VA examiner found some evidence of pain during range of 
motion testing, but did not specifically note the point in 
the range of motion at which pain began, the December 2006 
VA examiner specifically noted that the Veteran did not have 
objective evidence of painful motion at any point during the 
range of motion.  Thus, the current 10 percent rating in 
place for the cervical spine prior to August 10, 2011, is a 
reflection of some pain and decreased motion that would not 
be compensable based on the Veteran's range of motion 
testing alone.  However, both examiners found no evidence of 
further functional loss due to pain and other factors.  
While the November 2004 VA examiner indicated that it was 
not possible to distinguish whether less controlled 
movements on repetition were due to weakness or some other 
cause, but the Board concludes that the preponderance of the 
evidence supports a 10 percent rating for the cervical spine 
disability prior to August 10, 2011, in light of the 
treatment records (other than the outlier in September 2006) 
indicating mild limitation of motion and some paraspinal 
tenderness and discomfort.  Consequently, the Board finds 
that an increased compensable rating based on functional 
loss is not warranted.

As shown above, and as required by Schafrath, 1 Vet. App. at 
594, the Board has considered all potentially applicable 
provisions of 38 C.F.R. Parts 3 and 4, whether or not they 
have been raised by the Veteran.  In summary, for the 
reasons and bases set forth above, the Board concludes that 
prior to August 10, 2011, a disability rating greater than 
10 percent is not warranted for any time during that appeal 
period.  See Hart, 21 Vet. App. at 505.

Extraschedular Considerations

The Board also has considered whether the Veteran is 
entitled to a greater level of compensation on an 
extraschedular basis.  Ordinarily, the VA Schedule will 
apply unless there are exceptional or unusual factors which 
would render application of the schedule impractical.  See 
Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to the regulation, an extraschedular disability 
rating is warranted based upon a finding that the case 
presents such an exceptional or unusual disability picture 
with such related factors as marked interference with 
employment or frequent periods of hospitalization that would 
render impractical the application of the regular schedular 
standards.  See 38 C.F.R. § 3.321(b)(1) (2012).  An 
exceptional case is said to include such factors as marked 
interference with employment or frequent periods of 
hospitalization as to render impracticable the application 
of the regular schedular standards.  See Fanning v. Brown, 4 
Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a 
three-step inquiry for determining whether a veteran is 
entitled to an extraschedular rating.  First, the Board must 
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 
Veteran's level of disability and symptomatology and is 
found inadequate, the Board must determine whether the 
Veteran's disability picture exhibits other related factors 
such as those provided by the regulation as "governing 
norms."  Third, if the rating schedule is inadequate to 
evaluate a veteran's disability picture and that picture has 
attendant thereto related factors such as marked 
interference with employment or frequent periods of 
hospitalization, then the case must be referred to the Under 
Secretary for Benefits or the Director of the Compensation 
and Pension Service to determine whether, to accord justice, 
the Veteran's disability picture requires the assignment of 
an extraschedular rating.

With respect to the first prong of Thun, the evidence in 
this case does not show such an exceptional disability 
picture that the available schedular evaluations for the 
service-connected cervical spine and MDD are inadequate.  A 
comparison between the level of severity and symptomatology 
of the Veteran's cervical spine and MDD disabilities with 
the established criteria shows that the rating criteria 
reasonably describe the Veteran's disability level and 
symptomatology.  

With respect to the Veteran's psychiatric disability, the 
evidence in this case does not show such an exceptional 
disability picture that the available schedular evaluations 
for the service-connected MDD is inadequate.  Specifically, 
the Veteran reports multiple psychiatric symptoms, including 
difficulty sleeping, intrusive thoughts, constricted affect, 
feelings of anger, depression, irritability, concentration 
and memory problems, and some impairment of relationships 
with others, as well as intermittent reports of suicidal and 
homicidal ideation.  The current 70 percent rating prior to 
March 12, 2012, contemplates these and other psychiatric 
symptoms.  Thus, the Veteran's current schedular rating 
under DC 9434 is adequate to fully compensate him for his 
disability on appeal.  

With respect to the Veteran's cervical spine disability, the 
evidence in this case does not show such an exceptional 
disability picture that the available schedular evaluations 
for the service-connected cervical spine disability is 
inadequate.  Specifically, prior to August 10, 20111, the 
Veteran's cervical spine disability was manifested by 
symptoms such as pain, slight limitation of motion, and 
arthritis.  The current 10 percent rating prior to August 
10, 2011, contemplates these and other symptoms.  Thus, the 
Veteran's current schedular rating under DC 5237 is adequate 
to fully compensate him for his disability on appeal.

In short, the rating criteria reasonably describe the 
Veteran's disability level and symptomatology.  The Board, 
therefore, has determined that referral of this case for 
extraschedular consideration pursuant to 38 C.F.R. 
3.321(b)(1) is not warranted.


ORDER

Entitlement to a disability rating of 100 percent for MDD 
prior to March 12, 2012, is denied.

Entitlement to a disability rating of 30 percent for 
cervical disc disease prior to August 10, 2011, is denied.



____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs