Citation Nr: 1334286 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-48 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for residuals of a heat stroke. 2. Entitlement to an initial rating in excess of 30 percent for depressive disorder from August 18, 2009, to February 18, 2010, and to an evaluation in excess of 10 percent from February 19, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from September 1986 to September 1990 and from November 1990 to November 1993; the Veteran also had reserve component service, apparently through 2007, after his separation from active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran requested a Videoconference hearing before the Board. The requested hearing was conducted by the undersigned Veterans Law Judge in June 2011. At his June 2011 Videoconference hearing, the Veteran, who was represented, waived his right to have the agency of original jurisdiction review additional evidence he submitted after the issuance of the June 2010 statement of the case (SOC). VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a SSOC unless this procedural right is waived in writing by the appellant. 38 C.F.R. §§ 19.37, 20.1304 (2013). The appellant provided a written waiver of review by the agency of original jurisdiction, and the document submitted at the hearing may be reviewed by the Board. Appellate review may proceed. FINDINGS OF FACT 1. The Veteran alleges that he is no longer able to perform strenuous activity in hot conditions, and the medical evidence is in equipoise as to whether the Veteran currently has any residual of an episode of heat exhaustion. 2. From August 18, 2009, to February 18, 2010, the Veteran's service connected depressive disorder was not manifested by more than 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). 3. From February 19, 2010, the Veteran's service-connected depressive disorder has not been manifested by more than occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of heat exhaustion, manifested as heat intolerance with profuse sweating, headache, nausea, and muscle cramps, have been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 2. The criteria for an initial evaluation in excess of 30 percent for depressive disorder From August 18, 2009, to February 18, 2010, or to an initial evaluation in excess of 10 percent from February 19, 2010, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.130, Diagnostic Code 9434 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Following the Veteran's August 2009 claims, a letter was issued which included notice of each element required to substantiate a claim for service connection, including notice of the criteria for assigning a disability rating and for assigning an effective date for an increased rating. The Veteran's original claims for service connection for residuals of a heat stroke and for depression have been granted, so no further discussion of the duty to notify the Veteran of the duties to notify and assist the Veteran to substantiate either claim is required. Because the notice that was provided prior to the grants of service connection was sufficient to allow the Veteran to substantiate his claims, VA's duty to notify has been satisfied. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, each element of notice required under the VCAA has been met. VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). In this case, prior to the claims addressed in this appeal, service treatment records were associated with the claims files. VA treatment records have been obtained. The Veteran was afforded an opportunity to identify non-VA treatment, and the identified records were requested. Virtual VA and other VA electronic information databases have been reviewed. The Veteran was afforded VA examinations. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The reports of VA examinations, considered in light of the records of VA treatment and the evidence as a whole, are more than adequate upon which to base a decision with regard to each of the Veteran's claims. See 38 C.F.R. § 3.327(a) (2013); Caffrey v. Brown, 6 Vet. App. 377 (1994). There is sufficient evidence on file to fairly assess the severity of the service-connected depression disability. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); Allday v. Brown, 7 Vet. App. 517, 526 (1995). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that an individual who chairs a Veteran's hearing before the Board to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). In this case, the issues on appeal were correctly identified, and testimony as to symptoms of depression was elicited at the hearing. See Transcript, June 2011 Videoconference hearing. The duties under 38 C.F.R. § 3.103 have been met. No additional assistance or notification is required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. 1. Claim for service connection for heat stroke/heat exhaustion Applicable law provides that service connection will be granted if it is shown that a veteran suffers from a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for certain chronic diseases, when a disease defined as chronic is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Heat exhaustion residuals are not defined as a chronic disease. Further discussion of presumptive service connection is not required. Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) Medical evidence of a current disability, (2) medical evidence or in certain circumstances, lay testimony, of an inservice incurrence or aggravation of an injury or disease, and (3) medical evidence or appropriate lay evidence of a nexus or a relationship between a current disability and the inservice disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); Hickson v. West, 12 Vet. App. 247 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a) , lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Facts and analysis In December 1993, soon after his November 1993 separation from service, the Veteran sought service connection for several disorders. The Veteran did not include a claim for service connection for heat exhaustion. The Veteran did contend that he had exercise-induced asthma, but service connection was not granted for that disorder. Service connection was, however, granted for sinusitis with allergic rhinitis. See October 1994 rating decision. The medical history portions of the September 1988, August 1990, and November 1990 periodic examinations completed by the Veteran state that the Veteran was treated for dehydration in 1988 at Fort Bliss. A June 1988 clinical note indicates that the Veteran is being treated for nausea and references "previous notes," but there is no other previous record reflecting treatment of nausea, or dehydration, in 1988. It appears that the 1988 clinical notes are incomplete, but the available 1988 clinical records do not describe treatment or diagnosis of dehydration. Official records show that the Veteran's reserve unit was ordered to report for active duty for training in June 2007. On June 14, 2007, the Veteran required emergency treatment and hospitalization following profuse sweating, severe muscle cramps, and nausea. Acute renal failure was treated, and was considered resolved when the Veteran was discharged on June 16, 2007. See June 2007 private hospitalization records. The discharge summary of the June 2007 hospitalization states that, because of the Veteran's history of "easy heat exhaustion" due to profuse sweating, "my recommendation is that with his work, he needs to stay out of the heat at all cost." In his August 2009 claim, the Veteran stated that he was unable to go outside in warm or hot weather, without overheating and becoming sick from the heat. He stated that this affects his job. He stated that he has to stay in a cool environment. The examiner who conducted VA examination in February 2010 concluded that the Veteran's heat exhaustion resolved with no residuals, as the Veteran had no neurologic or renal residuals. At his 2011 hearing, the Veteran testified that he had episodes of heat problems in service and reserve service in 1988, 1994, 1995, but that there were medical records available only for the 1988 treatment. See Transcript, June 2011 Travel Board hearing, at 14-17. The Veteran provided a July 2011 medical opinion from a VA provider, who opined that the Veteran has current residuals of a 2007 episode of heat intolerance, such that he cannot be exposed to heat without profuse perspiration, headache, nausea, and muscle cramps. See July 2011 VA medical. The Veteran is competent to testify as to his symptoms when he experiences a hot environment. There is no reason shown to doubt his credibility as to these symptoms. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005), citing Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness' personal knowledge); See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see, Layno, 6 Vet. App. at 469-71. After consideration of all the evidence of record, the Board finds that the evidence as to whether the Veteran currently has residuals of an episode or episodes of heat intolerance. Therefore, the benefit of the doubt doctrine is applicable. The claim for service connection for heat intolerance, as manifested by profuse perspiration, headache, nausea, and muscle cramps, may be granted. See 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1365; Gilbert, 1 Vet. App. at 56. 2. Claim for increased initial staged ratings for depression Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. 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 sole on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In Fenderson v. West, 12 Vet. App 119 (1999), the United States Court of Appeals for Veterans Claims (Court) emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case, such as this one, in which a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, 21 Vet. App. 505 (2007). The VA rating schedule provides that psychiatric disorders (other than eating disorders) are to be evaluated according to a General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130, a 10 percent disability rating is assignable when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 38 C.F.R. § 4.130, DC 9432. A 30 percent disability rating is assignable when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for 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-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating may be assigned 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; obsessed rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms and manifestations listed under the rating formula are not requirements for a particular evaluation, but are examples providing guidance as to the type and degree of severity of these symptoms. Consideration also must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Global Assessment of Functioning (GAF) scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). A GAF score of between 41 and 50 denotes 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. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). A score of 51 through 60 represents "[m]oderate 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)." Id. A GAF from 61-70 is defined as some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. a. Evaluation from August 18, 2009 to February 18, 2010 In his August 2009 statement, the Veteran stated that he was being treated for depression at VA facilitates. VA treatment records dated in June 2009 state that the Veteran reported that, over the past month, his depression had returned. It was noted that the Veteran had been treated in the past for medications, and was last treated with medications in August 2007. It was recommended that medications be prescribed and that therapy be restarted. The Veteran reported recent episodes of crying, low self-esteem, and thoughts of suicide, but that he could not commit suicide because he did not have a will and he did not have insurance. At the time of treatment in July 2009, medications had been restarted. The Veteran complained of ahedonia and sadness. He denied any current suicidal or homicidal ideation. He reported that he felt trapped in his employment. He reported that, during the period of increased depression, prior to restarting medication, he had called in sick to work "a couple" of times. He was appropriately groomed and dressed. The Veteran's affect was bright, and was consistent with his statement that the medication prescribed for control of depression was already working. The assessment included: "Major Depressive Disorder, Recurrent, Moderate; and a Global Assessment of Functioning score (GAF) of 59. An August 2009 mental health counseling note stated that the Veteran was anxious and demonstrated "moderate to severe" anxiety on the Beck Anxiety inventory (BAI), while the Beck Depression Inventory -2 (BDI-2) placed him in the "severe" range of depressive symptoms. The examiner observed that persons with the Veteran's testing ". . . profile often have poor decision-making skills, low frustration tolerance, and a ruminative cognitive style." The examiner suspected that the Veteran's " . . . current affective disturbance was precipitated in no small part by the death of his father . . . ." The Veteran reported some suicidal ideation but denied plan or intent to act on these thoughts. The assignment of a GAF score of 59 warrants finding that the Veteran's symptoms were more serious than mild symptoms would be, but were not interfering with his work, except on an intermittent basis, since he reported that he was working full-time, but had called in sick due to depression "a couple" of times. He sought treatment in June 2009 through August 2009, but then discontinued seeking treatment. Following August 2009 VA outpatient treatment records, there is no other record of treatment or examination until the Veteran was afforded VA examination in February 2010. Although the August 2009 psychological testing revealed significant anxiety and disturbances of motivation and mood, the evidence during this time frame does not reveal that the Veteran experienced many other symptoms commensurate with the criteria contemplated by the assignment of a 50 percent disability rating. For instance, there is no evidence of: speech abnormalities; difficulty understanding complex commands; impaired judgment or thinking; or difficulty in establishing or maintaining relationships. In this regard, the Veteran's symptoms are not shown to cause occupational and social impairment with reduced reliability and productivity contemplated by the next higher rating of 50 percent. As such, the evidence does not warrant a rating in excess of 30 percent during this period. b. Evaluation from February 19, 2010 A February 2010 VA psychiatric examination report notes that the Veteran's claims file was reviewed, and the examiner proceeded to report the result of his interview and examination of the Veteran. At that time, the Veteran was not receiving any treatment for depression or taking medication to treat depression. The Veteran stated he still had "some depression" and would get "bummed out" by something and dwell on it. He reported sleeping 8 to 12 hours per night. The Veteran reported that he was not dating, and missed having a significant other. He was attending events he enjoyed, such as Renaissance fairs, and he socialized with others, generally his brother and colleagues at work. Mental status exam revealed that the Veteran was casually groomed, full cooperative, and speech was normal. Mood was eurhythmias and affect was appropriate. Thought processes and associations were logical and tight. There was no confusion, memory was grossly intact, and he was oriented to all spheres with no report of hallucinations or delusions. Insight and judgment were adequate, and there was no homicidal or suicidal ideation. The diagnosis section includes "depressive disorder not otherwise specified and a GAF of 63. The examiner commented while the Veteran carries a diagnosis of depressive disorder, the symptoms displayed and experienced cause the Veteran little current impairment. Specifically, depression was not found to preclude employment, impair social functioning, or interfere with activities of daily living. At his hearing in 2011, the Veteran testified that he had not obtained psychiatric treatment since the 2010 VA examination. The Veteran testified that his depression had not gotten "worse" since his last examination, but, he testified, he was not "direct" with the examiner at that time about the severity of his depression. In particular, the Veteran testified, he was concerned "about having a stigma" if the severity of depression or homicidal or suicidal thoughts were known. The Veteran requested that the hearing records be held open for 60 days so he could "go sit down with his psychiatrist" and "be more honest about the level of problems." The Veteran has not submitted any additional medical evidence. The Board concludes, in the absence of any additional evidence, that there is no clinical evidence that the Veteran's disability due to depression has increased in severity since the February 2010 examination. The Veteran himself testified that his symptoms had not increased in severity since that examination, but, he testified, there were symptoms he did not report to the provider. At the time of the February 2010 VA examination, based on the Veteran's reported symptoms, the examiner assigned a GAF score of 63. The Veteran did not seek medication or treatment during the period between the February 2010 VA examination and the June 2011 hearing before the Board. The Veteran's testimony at the June 2011 Videoconference hearing demonstrates that he understood what evidence was required for a higher rating. The Veteran understood that, if he wished to show that his report of symptoms at the time of the February 2010 VA examination were a deliberate underrating of the severity of depression, he would need to submit evidence substantiating that testimony. In the absence of additional evidence following the 2011 hearing, the Board concludes that the report of symptoms described to the provider at the time of the February 2010 VA examination is the most persuasive and accurate evidence of record. As described in more detail above, that examination report reflects that the Veteran's symptoms were, on the whole, mild. The Veteran continued to work full-time and had actually not needed any psychiatric treatment or therapy since February 2010. In view of the evidence, the Board concludes that occupational impairment due to depression is consistent with the assigned 10 percent disability rating for mild or transient symptoms which decreases work efficiency and ability to perform occupational tasks only during periods of significant stress. This evidence reveals the Veteran's symptoms during this latter period to be significantly improved over the prior period when the Veteran was assigned a 30 percent rating. In view of these factors, a rating in excess of the 10 percent for service connected major depressive disorder is denied. Consideration of an increase in the initial stated ratings on an extraschedular basis The Board itself cannot assign an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Since the Board itself cannot assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case to the Director of Compensation and Pension (C&P) Services for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, then the assigned schedular evaluation is adequate. Referral for extraschedular consideration is not required, and the analysis stops. Id. All of the Veteran's described symptoms of depression during the relevant period, including anxiety and the Veteran's report that he was thinking of suicide, without a plan or intent, before seeking VA treatment in June 2009, is encompassed within the 30 percent evaluation assigned during that period. As there is no evidence that the Veteran sought treatment of any type, for a VA provider or a non-VA provider, following the February 2010 VA examination, the Board finds that the 10 percent evaluation encompasses the Veteran's symptoms from that time. The evidence includes the Veteran's testimony that his symptoms were worse that he described for the examiner in February 2010, but, as the Veteran stated he would provide medical evaluation to support that testimony, but did not do so in the two years that have elapsed since his hearing, the Board concludes that such symptoms, if present, are intermittent only, and do not warrant a higher rating than the assigned 10 percent evaluation. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the Veteran was not hospitalized for treatment of depression and, in fact, did not seek medical evaluation or treatment of depression after August 2009. The Veteran reported that he called in sick to work a "couple" of times in the months prior to his 2009 treatment of depression and 10 to 15 times in the five years prior to the February 2010 VA examination. This reveals that the rating criteria are adequate. As was described above in upholding the disability ratings assigned by the RO, higher ratings were available but the Veteran's symptoms did not meet the criteria for assigning such higher ratings. The Board finds that the level of severity of occupational impairment due to depression is encompassed within the staged ratings assigned during the two periods of the pendency of the appeal. There is no evidence which requires consideration of the second step of analysis for referral of the claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation initial evaluation in excess of 30 percent for depressive disorder prior to February 19, 2010, or to an initial evaluation in excess of 10 percent from February 19, 2010 on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). Referral is not warranted. ORDER The appeal for service connection for residuals of heat exhaustion, manifested as heat intolerance with profuse sweating, headache, nausea, and muscle cramps, is granted. The appeal for an initial evaluation in excess of 30 percent for depressive disorder from August 18, 2009 to February 18, 2010, and to an initial evaluation in excess of 10 percent from February 19, 2010, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs