Citation Nr: 1330090 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 07-17 437A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a back disability. 3. Entitlement to initial evaluations for major depression higher than 10 percent, effective January 22, 2007, 30 percent, effective July 23, 2010, and 50 percent, effective March 13, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to May 1970. A portion of the Veteran's claims folder has been rebuilt. This matter came before the Board of Veterans' Appeals (Board) on appeal from April 2006 and September 2007 rating decisions by the Department of Veterans Affairs (VA) in Denver, Colorado. In the April 2006 rating decision, the RO, in pertinent part, determined that new and material evidence had not been received to reopen service connection claims for knee and back disabilities. In the September 2007 rating decision, the RO granted service connection for depression and assigned a 10 percent evaluation, effective January 22, 2007. In June 2011, the Veteran testified before the undersigned Veterans Law Judge sitting at the RO. A copy of the hearing transcript is of record and has been reviewed. This case was previously before the Board in January 2012, at which time the Board found that new and material evidence had been received to reopen the service connection claims for the knee and back disabilities. The Board then remanded the claim for additional development, particularly so that VA examinations could be provided to address the present severity of the Veteran's major depression, and etiology of the left knee and back disabilities. The directives of the Board's remand have been substantially complied with. In an October 2012 rating decision, the RO granted higher initial ratings for the major depression of 30 percent, effective July 23, 2010, and 50 percent, effective March 13, 2012. The Veteran has not indicated that he is satisfied with these higher ratings. Thus, this claim is still before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The issues of service connection for a left knee and back disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT From July 22, 2007 to present, the Veteran's major depression is shown to approximate more moderate social and occupational impairment, with ongoing depression, social withdrawal, lack of motivation, intermittent panic attacks, sleep impairment, impaired short and long-term memory, and difficulty in establishing and maintaining effective work and social relationships; but the Veteran is still able to function socially with his wife and take care of himself; and while his employment prospects due to his depression are limited to jobs involving simple tasks and limited supervision, his occupational impairment is not severe. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 50 percent, but not higher, for major depression are met, effective July 22, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code 9434 (2013). 2. The criteria for an initial rating higher than 50 percent for major depression, effective March 13, 2012, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code 9434 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). 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 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). Proper notice from VA 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. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). An RO letter dated in February 2007 informed the Veteran of all of the elements required by 38 C.F.R. § 3.159(b), as stated above. The Veteran was also notified that he should submit evidence demonstrating the effect that worsening of his depression had on employment, in that he was told that he could submit statements from employers as to job performance, lost time, or other information regarding how his conditions affect his ability to work. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The February 2007 letter also provided the Veteran with information on how VA determines and assigns effective dates. As such, the February 2007 letter satisfied VA's duty to notify. Additionally, the Board notes that in this case, the Veteran is challenging the initial evaluation for his depression assigned following the grant of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because legally sufficient notice was provided in February 2007, and before the claim was readjudicated in the September 2007 rating decision, VA's duty to notify in this case has been satisfied. Regarding the duty to assist, the RO has obtained the Veteran's service records and VA treatment records. Private treatment records also have been associated with the file. The record shows that the Veteran is in receipt of Social Security Administration (SSA) disability insurance benefits, which are not in the claims file; however these records are not shown to be relevant to the Veteran's depression, but rather physical injuries, as noted in the remand section below. The RO also has provided him with VA examinations in July 2007, October 2009, and March 2012. The examination reports adequately address all the necessary criteria for rating the claims. The Veteran was afforded a hearing before a Veterans Law Judge (VLJ) in June 2011, in which he presented oral argument. 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) (2010) requires that the VLJ/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. Here, the Veteran, who was represented by a Veterans Service Organization, acknowledged that the initial rating claim for depression was on appeal and provided testimony regarding the present severity of his disability. The VLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the claims. The VLJ asked specific questions, however, directed at identifying the criteria for an increased rating. The VLJ also sought to identify any pertinent evidence not currently associated with the claims including any ongoing treatment. The Veteran also volunteered his present symptoms. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Increased Rating The Veteran seeks higher ratings for his service-connected major depression. The record shows that the Veteran is appealing the initial rating assigned from a grant of service connection for major depression in September 2007. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a greater original rating after an initial award of service connection, such as the initial rating claim for the back disability, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. Under the anti-pyramiding provision of 38 C.F.R. § 4.14 , the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. The Court held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether the appellant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The criteria for evaluating major depression are found at 38 C.F.R. § 4.130, Diagnostic Code 9434. A 10 percent evaluation is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent evaluation is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the VA's general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The nomenclature employed in the rating formula is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126(b). A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The DSM-IV contains a GAF scale, with scores ranging from zero to 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. The Board notes that an examiner's classification of the level of psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. See VAOPGCPREC 10-95. GAF scores ranging between 51 and 60 are assigned when there are 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). See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994). GAF scores ranging between 41 and 50 are assigned when there are 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). The Veteran is currently assigned three staged ratings for his major depression of 10 percent, effective January 22, 2007, 30 percent effective July 23, 2010, and 50 percent March 13, 2012. The medical evidence demonstrates that the Veteran has been receiving ongoing mental health treatment at the VA Medical Center (VAMC) in Denver since at least June 2006. At that time the Veteran was seen in mental health urgent care with symptoms of mild suicidal ideation and problems with sleep. He also reported visual distortions, but it was not noted that these were hallucinations. A July 2006 VA mental health intake and assessment note shows the Veteran had been assessed as having a GAF score of 55 in January 2000. He had a history of mild to moderate symptoms of depression since service in the military in the late 1960s and had likely self-medicated primarily through alcohol abuse until 2001, at which time the Veteran earned and had maintained sobriety. He currently had increased feelings of depression likely triggered by current life stressors and decrease in mobility attributed to his medical problems. He was not interested in taking any medication. The Axis I diagnosis was depression with a current GAF score of 55. The Veteran reported symptoms of anger, labile (tearful) moods, irritability, irresponsible thoughts and actions, i.e., ramming his car into a telephone pole, poor sleep, lack of motivation/ concentration, and occasional passive suicidal ideation. Socially, he did not report doing any leisure activities. He had been married for the past four years and was on his second marriage. He had three children ranging from ages 35 to 38 and indicated being in contact with only one of his children regularly. One child he had an intermittent relationship with; and with the third child, his son, he had a distant relationship. Regarding employment, the Veteran reported being laid off from United Airlines and was disputing this action. His current income was through Worker's Compensation and his wife's salary. In February 2007, the Veteran reported mild symptoms of lack of motivation/concentration, intermittent sleep, and passive suicidal ideation. The Veteran underwent a VA examination in July 2007. He indicated that he spent his time sleeping, seeing doctors, and watching television. He reported being seen at the VA mental health clinic approximately once per month and that he was receiving "some" benefit from this treatment. He denied feeling suicidal or homicidal. Occupationally, he noted that he had been employed with United Airlines until 2005 when he had a heart attack, and had been on medical leave since that time with an ongoing legal battle. The Axis I diagnosis was mild to moderate chronic depression. The GAF score was 60. The examiner noted that the Veteran's signs and symptoms of depression were transient or mild, which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. He was able to maintain activities of personal hygiene. He did not have inappropriate behavior. Thought processes and communication were not impaired; and social functioning was not impaired. Employment was impaired, as he was on medical leave. He was found to have a personality disorder that caused difficulty in a work environment where he was supervised. A letter from a VA nurse practitioner dated in December 2007 noted that the Veteran had been her patient since 2004 at the VA Fitzsimons clinic and had suffered from ongoing chronic depression and anxiety, intermittent panic attacks, mild memory loss, and chronic sleep impairment. VA treatment records dated in October 2007 and January 2008 note GAF scores of 49 and 48, respectively. The Veteran reported several life stressors that had caused his feelings of hopeless, fatigue, sleep difficulties, and lack of motivation to worsen. The Veteran underwent another VA examination in October 2009. He reported being treated for substance problems at the VAMC in Denver in 2000 and sporadic treatment for mental health issues from 2006 to 2008 at the Denver VAMC. He currently was not in any regular mental health treatment. He reported ongoing problems with anxiety, depression, paranoia, irritability, and unusual perceptual experiences. He denied any active suicidal or homicidal ideations, plans, or history of attempts. He reported sleep disturbances and disturbing dreams. He also had decreased interests, energy, apathy, and motivation. He was socially withdrawn and reported forgetfulness. He indicated that occasionally he felt like he would see something out of the corner of his eye but denied any clear-cut auditory or visual hallucinations. He had some slight paranoia and hypervigilance. He denied any grossly inappropriate behavior recently. Occupationally, again it was noted that he had not worked since 2005 and that he was on Social Security Administration (SSA) disability insurance. Socially he reported living a marginal and circumscribed lifestyle with no consistent schedule. He was able to do activities of daily living within his physical limitations, including self care, driving, and running errands. During the day, he watched television and did paperwork; he was somewhat isolative and reported no regular activities outside the home. The mental status evaluation noted that it was a cold day and the Veteran was wearing shorts. He appeared slightly depressed. His speech was articulate and thought processes were logical and goal-oriented. His motor functioning was grossly intact, though he walked slowly. He reported having increased forgetfulness recently. On testing, he was shown to have difficulty with long-term and short-term memory. His attention and concentration were grossly intact. His visual motor, visual spatial, organizational, planning, constructional, language, and comprehension skills were grossly intact. The Veteran reported continuous symptoms of depression and anxiety with no remissions in the past year. The examiner reported that the Veteran's social functioning was grossly intact for basic skills, but he reported being very forgetful and isolative. In diagnosing the Veteran, the examiner gave an Axis I diagnosis of mood discharge (which the Board notes perhaps was a clerical error meant to read, mood disorder) with anxious and depressive symptoms, mild. The examiner related this mood disorder to military service and noted that the condition was also associated with ongoing physical problems and pain. The examiner also determined that the Veteran had a cognitive disorder but that she would have to resort to speculation to determine if this disorder was associated with military service. The examiner determined that the Veteran's mental disorder symptoms were mild but that he might benefit from medication and additional counseling. The severity of these symptoms, however, did not include the cognitive disorder or personality disorder. The examiner determined that the Veteran retained cognitive, emotional, and behavioral residual capacities to do at least simple work tasks in a loosely supervised environment within his physical limitations. In November 2009, a VA psychotherapy note shows the Veteran had scheduled an appointment after an 18-month hiatus. He reported chronic depression that had not changed significantly. He endorsed having no energy, lack of motivation, sleep dysregulation, negative self statements, and sporadic increased irritability. He denied suicidal and homicidal ideations. His GAF score was 47. A January 2010 VA individual psychotherapy notes the Veteran was scheduled for ongoing supportive therapy. He denied any problematic depressive symptoms and appeared to be in no acute distress. The GAF score was 48. In May 2010, the Veteran was seen again and endorsed lack of motivation, lack of concentration, fatigue, hypersomnia, mild anhedonia, and increased irritability. He denied suicidal ideation. He discussed the possibility of taking antidepressants. His GAF score was 46. The Veteran was seen again on July 23, 2010 for individual psychotherapy and continued to receive intermittent treatment through May 2011. During this time his GAF score continued to be 48. The July 2010 treatment record notes that the Veteran was exploring the possibility of having posttraumatic stress disorder (PTSD) secondary to his military service. (The Board notes as an aside that the RO denied service connection for PTSD in a May 2013 rating decision.) A November 2010 treatment record notes difficulties the Veteran was having with his wife and that he would get frustrated and angry and become verbally abusive. He denied suicidal or homicidal ideations and there were no signs of psychosis. In January 2011 he indicated that he remained chronically depressed and spent a lot of time just watching television or lying in bed. He had lack of motivation, fatigue, and feelings of low self-worth/ esteem. Similar symptoms were reported in May 2011; it was noted at that time that he was struggling with feelings of powerlessness. The Veteran testified at a Board hearing in support of his claim in June 2011. He reported social withdrawal, anger problems, and problems arguing with his wife. He also reported violently acting out while dreaming so that he had to sleep separately from his wife. He indicated that he had a poor relationship with two of his three kids. He noted that he was not working and that he continued to have symptoms of anger even though he had started to take medication for his depression. A July 2011 VA treatment record notes the Veteran again wanted to explore the possibility of having PTSD. The examining clinician commented that he had some symptoms of PTSD but not enough to warrant a diagnosis. The Veteran reported ongoing depression but was not deemed as posing a harm to himself. He indicated that he had had problems keeping a job since the military but was vague about the details. He also reported having anxiety "off & on" but again was vague about what was causing this. His GAF score remained 48. A December 2011 VA treatment record also notes the Veteran's continued symptoms of depression including hypersomnia, fatigue, and lack of motivation. His GAF score was 48. The Veteran underwent his last VA mental health examination during this appeals period in March 2012. Occupationally it was noted that the Veteran had worked for United Airlines for about 10 years as a baggage handler, but stopped working in 2005 due to injury to his shoulders, back, and knee. Prior to that he was a furniture mover for about 20 years. Socially he reported irritability with his wife and yelling at her and throwing things at the wall. The police had been called to the house by his wife when they first started dating but no charges were filed. He also recalled about 20 years ago ramming his car into a telephone pole out of anger. He indicated that occasionally he heard noises that agitated him and that he believed there might be a ghost in his house. However, he denied "frank auditory or visual hallucinations." He denied panic symptoms but liked to be in control over who came in and out of his house. He enjoyed sleeping most of the day and complained of memory and concentration problems. In summary the examiner commented that the Veteran had ongoing depression but that he was able to maintain activities of his daily living and there had been no significant worsening of his symptoms. The examiner noted that the Veteran's social functioning was mildly impaired and that his occupational functioning also was "impacted" by both his depression and his personality disorder, which was deemed unrelated to military service. The examiner further noted that the Veteran had a cognitive disorder that was unrelated to his depression but more likely related to his history of alcohol and drug abuse. With respect to his depression, the GAF score was 52 for the past three months. The examiner also found that with respect to his depression the Veteran had reduced reliability and productivity, due to symptoms of flattened affect, difficulty with complex commands, impaired judgment and abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner determined that the Veteran's depression was in the moderate range, rather than severe. He had few friends; he was no longer working; and he had recurring conflicts with his wife, which were usually followed by apologies. He also had many symptoms that appeared to be generated by his chronic medical conditions, which overlapped with his symptoms of depression, including severe fatigue and lack of ability to motivate himself. However, the examiner noted that prior to his medical decline, he had no difficulty sustaining full-time employment. The Veteran continued to receive individual psychotherapy through August 2012. On these treatment records he reported increased depressive symptoms in the past two years and passive suicidal ideation. His GAF score was 48. While the Veteran indicated a worsening of symptoms in the past two years, this would include the period in which he received his last compensation and pension examination in March 2012. As he did not indicate an increase in symptoms since March 2012, the Board finds that the examinations in the file would adequately encompass all present impairment the Veteran has. In addressing whether the Veteran is entitled to higher initial ratings, the Board initially notes that while the Veteran has also been diagnosed with a cognitive disorder and personality disorder, the medical evidence of record does not sufficiently differentiate between the symptoms caused by the major depression and the symptoms caused by the cognitive and personality disorders. 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. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Therefore, the Board will attribute all of the Veteran's psychiatric impairment to his service-connected major depression. Additionally, the severity of the Veteran's major depression has been relatively stable throughout the appeal. The treatment records consistently note chronic depression that has not worsened. Therefore, applying staged ratings, i.e., different ratings for different periods of time, for the Veteran's depression seems inappropriate. Generally, the medical evidence demonstrates that the Veteran's major depression has caused moderate impairment in social and occupational functioning. Socially, while the Veteran is married, he does not otherwise have much of a social life and does not enjoy any leisure activities other than sleeping. His relationship with his wife also is reportedly somewhat strained in that he yells at her and throws things occasionally. He also has somewhat strained relationship with his son, though relatively good relationships with his two daughters. His social impairment is not so severe that he is not able to take care of himself, and he runs errands in his car. He also takes his wife to work. He has a history of some mild suicidal ideation but has never been found to be a danger to himself. But there is definite social impairment on the moderate level. Occupationally he is primarily disabled due to disabilities that are unrelated to his depression, such as physical disabilities. While he has stated that he had problems maintaining employment even before he was injured on the job in 2005, the record shows that he worked for 10 years prior to the 2005 injury at his job at United Airlines, and 20 years prior to that in a job moving furniture. Therefore, the Veteran is not shown to have stopped working due to his depression. However it has been determined that the Veteran would be best with only doing simple tasks in a loosely supervised environment. Therefore, there is some occupational impairment associated with the Veteran's depression. The Veteran essentially meets all of the criteria for a 30 percent rating under Diagnostic Code 9434, as he has a depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, and mild memory loss. However, in March 2012, the examiner specifically noted that the Veteran met the criteria for the next higher 50 percent rating, including reduced reliability and productivity, due to symptoms of flattened affect, difficulty with complex commands, impaired judgment and abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner also commented at that time that his symptoms of depression had been ongoing with no recent worsening. This seems to suggest that the Veteran actually met the criteria for a 50 percent rating for the entire appeal period. This assessment is not inconsistent with the medical evidence of record, because in addition to meeting the criteria for a 30 percent rating, the Veteran also meets some of the criteria for a 50 percent rating in that he has impaired short and long-term memory. He also has disturbances of motivation and mood in that he only wants to sleep all day and not engage in any leisure activities. He has difficulty in establishing and maintaining effective work and social relationships in that occupationally it was noted that he would be best working somewhere without much supervision. Socially, he has a strained relationship with his wife and at least one of his children. He also does not have any friends. The Veteran has been assigned GAF scores of 46 to 48, which indicate more serious symptoms. As noted, GAF scores ranging between 41 and 50 are assigned when there are 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). However, other evidence of record supports the GAF scores of 52, 55, and 60. GAF scores ranging between 51 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). See DSM-IV. The Board notes that a GAF score generally reflects an examiner's finding as to the Veteran's functioning score on that day and, like an examiner's assessment of the severity of a condition, is not dispositive. Rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Overall the Board finds that even with the lower GAF scores of 46 to 48, the medical evidence more closely approximates the criteria for a 50 percent rating under Diagnostic Code 9434 for the entire appeal period. Most of the symptoms associated with his depression that have been reported and observed by the medical professionals of record are shown to be at the moderate level. The Veteran reported ongoing depression, but he was never determined to be a harm to himself or others. He was socially withdrawn but still able to function socially with his wife and take care of himself. It was noted that he would benefit by some sort of routine. While it is noted that the Veteran would hear things and thought he might have a ghost in his house, he was not found to have frank auditory or visual hallucinations. Occupationally, he was primarily disabled due to disabilities that did not involve his depression; but he reportedly would need to find particular type of employment that only involved simple tasks and limited supervision. Therefore, while there is impairment shown both socially and occupationally as a result of the Veteran's major depression, it is not shown to warrant a rating higher than 50 percent. Thus, the Board determines that an initial rating of 50 percent, but not higher, is warranted for the Veteran's major depression effective January 22, 2007 to present. For all the foregoing reasons, the Board finds that the evidence supports the assignment of a 50 percent rating, but not higher, for the major depression for the entire appeal period. Therefore, entitlement to a higher initial rating of 50 percent for the period prior to March 13, 2012 is warranted; however, entitlement to an initial rating higher than 50 percent, effective March 13, 2012 is denied. As noted, the Board has considered staged ratings under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted. The Board has taken into consideration the Veteran's lay statements regarding the severity of his major depression in determining the rating assigned. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006)). However, the Veteran is not competent to provide medical determinations with respect to the severity of the depression and the Board has relied on the medical evidence of record in this regard. Thus, to the extent that the Veteran has contended that his major depression causes more severe impairment than the rating assigned, the preponderance of the evidence is against the claim; and the benefit of the doubt doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2013). To afford justice in exceptional situations, an extraschedular rating can be provided. See 38 C.F.R. § 3.321(b). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted in Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or 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 RO or Board must determine whether the claimant's exceptional 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 C&P Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's major depression (i.e., impairment in short and long-term memory, sleep impairment, intermittent panic attacks, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and social isolation with no leisure activities) are not shown to cause any impairment that is not already contemplated by the rating criteria. The 50 percent rating assigned under Diagnostic Code 9440 specifically contemplates these symptoms, and the Board finds that these rating criteria reasonably describe the Veteran's disability. As noted, while it is noted that the Veteran would hear things and thought he might have a ghost in his house, he was not found to have frank auditory or visual hallucinations. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. ORDER Entitlement to initial evaluation of 50 percent, but not higher, for major depression, effective January 22, 2007, is granted subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial evaluation higher than 50 percent for major depression, effective March 13, 2012, is denied. REMAND The Veteran seeks service connection for disabilities of the left knee and back. The Board remanded this case in January 2012 so that he could be provided with an opinion on the etiology of these disabilities, specifically whether they were related to the Veteran's military service. With respect to the back the examiner initially determined in March 2012 that it was at least as likely as not that some of the Veteran's back complaints were due to his time in service. The RO requested a clarification of this opinion; and in March 2013, the examiner stated that it was more likely than not that the Veteran had mild low back pain due to the original injury in service, prior to a 2005 work-related injury. The examiner further determined that the Veteran's current range of motion deficits and chronic low back pain that was experienced prior to 2005 was at least as likely as not attributable to his injury in service. However, the examiner also found that lumbar spine x-rays in 2012 only showed mild spondylosis that would be consistent with his current age and not due to the injury in service. Also there was a mild decrease in lordosis that was less likely than not due to the injury in service, as this type of change in the spine was not usually seen in someone with mild pain who was able to take on the demanding work of a baggage handler. The opinion regarding the back is not clear. While the examiner is attributing some of the Veteran's current impairment in the lumbar spine to his injury in military service, specifically the limited motion and pain, the examiner is not attributing any of the present diagnosed disabilities in the lumbar spine to his military service. A clarification needs to be provided to assess whether the Veteran has a diagnosed disability related to military service that is causing the limited motion and pain in the spine. Also, the record shows that the Veteran has been receiving Social Security Administration (SSA) disability benefits related to his knee and back since 2005. These records are not in the file and are relevant to his service connection claims for the left knee and back disabilities. Therefore, these records need to be obtained on remand, as well. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify or submit any additional relevant evidence pertaining to his back and knee, including the medical opinion addressing the etiology of his back and knee disabilities he was given 60 days to obtain and submit from the date of the June 2011 Board hearing. 2. Make arrangements to obtain copies of the Veteran's SSA records for his disability insurance benefits he has reportedly been receiving since 2005 after work-related injuries as a baggage handler for United Airlines. Notify the Veteran of any unsuccessful attempts and indicate what further steps VA will make regarding his claim. 3. After securing any outstanding evidence, send the Veteran's file back to the previous examiner who provided opinions in March 2012 and March 2013 to provide a supplementary opinion regarding the etiology of his back disability. Specifically the examiner should state whether the Veteran has any diagnosed disability in lumbar spine that is causing the limited motion and pain in the spine that has been related to the Veteran's military service. If the previous examiner is not available, then reschedule the Veteran for a new examination to address the etiology of any currently diagnosed back disabilities. The claims folder should be made available and reviewed by the examiner. Any indicated studies should be performed. The examiner should note any disability of the back currently shown and then opine whether it is at least as likely as not that the Veteran has a back disability that is related to or had its onset in service. In doing so, the examiner must specifically acknowledge and discuss the Veteran's reported in-service injuries to his back, his complaints expressed on his May 1970 separation report of medical history, and the Veteran's competent report of a continuity of back symptoms since service. The examiner also should reconcile any opinion with a private record from Rehabilitation Associates dated in February 2006 which shows the Veteran's back complaints after lifting a heavy bag at work in addition to any available SSA disability records. All findings and conclusions should be accompanied by complete rationale and set forth in a legible report. 4. Ensure the examiner's opinions are responsive to the questions asked. If not, take corrective action. 38 C.F.R. § 4.2. 5. If the benefits sought on appeal remain denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations and affords them an appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs