Citation Nr: 1334981 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-44 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a disability rating in excess of 50 percent prior to April 22, 2013 and in excess of 70 percent thereafter. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from July 1977 to February 1980. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Houston, Texas (RO). In November 2012, the Veteran testified in front of the undersigned at a videoconference hearing. A copy of the transcript has been associated with the claim file. In a July 2013 rating decision, the RO granted a disability rating of 70 percent for major depressive disorder, effective April 22, 2013. However, because this is only a partial grant of the benefit sought on appeal, the increased rating claim remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). In an August 2013 rating decision, the RO granted entitlement to individual unemployability due to service connected disability (TDIU). As the Veteran has not expressed disagreement with the effective date assigned, that issue is not the Board. The Board has reviewed the Veteran's Virtual VA file and has considered all of the additional relevant records contained therein in the decision below. FINDINGS OF FACT 1. The Veteran's major depressive disorder for the period prior to April 22, 2013 most nearly approximated deficiencies in most areas of work, school, family relationships, thinking, judgment, and mood without total occupational and social impairment; however, the preponderance of the evidence shows that the Veteran's psychiatric disability was not productive of total occupational and social impairment. 2. Throughout the appeal period the Veteran's major depressive disorder has most nearly approximated deficiencies in most areas of work, school, family relationships, thinking, judgment, and mood without total occupational and social impairment; the preponderance of the evidence shows that the Veteran's psychiatric disability was not productive of total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no higher, for a major depressive disorder, prior to April 22, 2013, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9434 (2012). 2. The criteria for a disability rating in excess of 70 percent for major depressive disorder have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9434 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings, as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a January 2008 pre-rating letter provided notice to the appellant regarding what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA; this letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The May 2009 RO rating decision reflects the initial adjudication of the claim after issuance of the May 2008 letter. Hence, the January 2008 letter-which meets the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of VA and private treatment records and the Social Security Administration records. The Veteran was afforded VA examinations in connection with the pending claim. The examinations are adequate in that they considered the reported history, the claim file and medical records contained therein, contained a full examination of the Veteran, provided clear findings and provided opinions with rationales. Also of record and considered in connection with the appeal are various written statements provided by the Veteran, and by his representative, on his behalf. The Veteran was also afforded the opportunity to testify at a hearing in front of the undersigned. She was advised of the evidence needed to substantiate the claim and was given additional time to submit evidence in support of his claim. The Board also finds that no additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the matters on appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). II. Legal Criteria and Analysis Initially, the Board notes that all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Board notes that the RO has staged the disability rating assigned. In the May 2008 rating decision, the RO granted a 5 percent disability rating effective the date of the claim, June 26, 2007. In a July 2013 rating decision, the RO granted a 7 percent disability rating effective April 22, 2013. The Veteran is currently assigned a disability rating of 50 percent for major depressive disorder under Diagnostic Code 9434. A 50 percent disability rating is contemplated for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9434. A 70 percent disability rating is contemplated for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating is contemplated for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. GAF scores are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), p. 32). GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging between 61 and 70 reflect 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, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e.g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the DSM-IV, for rating purposes). The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. Further, in making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). A. Factual Background VA outpatient treatment records of July 2006 note the Veteran appeared calm and stable. She has learned how to control her temper and frustration. She was assigned a GAF score of 66. In August 2006, she was noted have good mood, with no suicidal or homicidal ideations or intents; sleep and appearance were good. Later that same month, she reported that depression was more frequent. She wondered if her medication was working as good as before. In October 2006, she was noted to be more anxious and she was more depressed. In November 206, she reported increased depressed mood with feelings of sadness, hopelessness, and helplessness. Appetite and sleep were OK. She reported a fleeting suicidal ideation but with no intent or plan. She was assigned a GAF score of 65. In September 2007, she was noted to have increased suicidal thoughts with no intent or plan. She was assigned a GAF score of 54. In December 2007, she was assigned a GAF score of 60. In January 2008, a GAF score of 58 was assigned. A February 2008 VA contract examination report notes that the Veteran reported severe depression with suicidal ideation, dark and violent thoughts, and difficulty functioning at her job. She stated her memory and concentration are decreasing and her depressive symptoms, anxiety and rages are becoming stronger and less manageable despite medication. She noted the symptoms are constant and they cause loss of memory, depression, difficulty sleeping, anger and rage, problems relating to students and difficulty balancing life. Mental status examination showed orientation was normal; appearance, hygiene, and behavior were appropriate. Affect and mood were abnormal with flattened affect. Speech was intermittently abnormal, at times lacking substance and not clearly addressing the questions, with some tangentiality. It is not circumstantial, circumlocutory, stereotypical, illogical or irrelevant speech. It was noted the Veteran had difficulty understanding complex commands an tended to lose train of thought. Panic attacks occurred once a week and cause extreme anxiety and agitation. There was no suspiciousness, delusional history, hallucinations or obsessional rituals. Thought process was grossly impaired. She appeared to have significant difficulty staying on topic and focused on answering questions. Judgment is impaired with the Veteran reported frequent dark thoughts and impulses to harm herself and others. Abstract thinking was normal, but memory is impaired and the degree is severe, forgetting relatives' names, own occupation and own name. Suicidal ideations were present almost constant on a daily basis but without plan or intent. A GAF score of 60 was assigned. The examiner stated that the best description of her current symptoms was psychiatric symptoms which cause occupational and social impairment with reduced reliability and productivity. In March 2008, she was noted to have fleeting suicidal thoughts with no intent or plan. She was assigned a GAF score of 50. In April 2008, a GAF scores of 56 and 55 was assigned. She reported having more explosive episodes at work and feeling like she could not control her temper as well. She denied suicidal thoughts but reported higher anxiety. An October 2008 VA outpatient treatment record shows the Veteran's treating physician stated that the Veteran had continued problems with intermittent suicidal thoughts, anxiety, irritability and ease of losing her temper. She continues on various medications for treatment. She opined that the Veteran had serious impairment socially and industrially. Other October 2008 VA treatment records show the Veteran reported increased difficulty with anxiety and depression. She is more prone to panic attacks and has problems with memory and staying organized. She has difficulty controlling her temper and anger. She was assigned a GAF score of 62. In November 2008, a GAF score of 58 was assigned. Records show she reported having difficulty controlling her temper, problems with memory, distractibility, and confusion and disorientation. In February, April, July and September 2009, she was assigned a GAF score of 55. In October 2009 she reported feeling better and was assigned a GAF score of 67. However, later that same month, she was assigned a GAF score of 55. Private treatment records of September 2009 note the Veteran was cooperative, oriented in all spheres; she had good eye contact; affect was anxious and tense; mood was euthymic, thoughts were coherent, logical and goal oriented; there was no suicidal or homicidal thoughts; and judgment and insight were not impaired. A December 2009 VA outpatient treatment record shows that the Veteran reported ongoing problems with depression, anxiety, panic attacks, social discomfort and organizational problems. It was reported she had to retire a few months before because she was no longer able to cope with the demands of work due to her many medical and psychiatric problems. A GAF score of 61 was assigned. In January 2010, she reported being very anxious. A GAF score of 55 was assigned. In March 2010, she was assigned a GAF score of 65. In July 2010, she reported passive suicidal thoughts, and increased anxiety and depression. A GAF score of 55 was assigned. In September 2010, she was noted to have less anxiety, depression and panic attacks. She was assigned a GAF score of 55. In August 2011, she was noted to have poor self esteem; she was anxious, felt lonely and lacked motivation. She was assigned a GAF score of 59. At the November 2012 hearing, the Veteran testified experiencing panic attacks at least once a week; having problems controlling her temper; getting confused and forgetting things she has been told such as people's names; and getting confused and disoriented at times. An April 2013 VA examination report shows the Veteran was noted to have symptoms of irritability depression, anxiety, panic attacks occurring weekly or less often, impaired judgment, difficulty adapting to stressful circumstances, persistent danger of hurting self or other, poor concentration, anergia, lack of pleasure or motivation, suicide attempts leading to hospitalizations, chronic sleep problems, low self esteem and anger problems. A GAF score of 50 was assigned. The examiner noted that the Veteran exhibited occupational and social impairment with reduced reliability and productivity. B. Prior to April 22, 2013 After a careful review of the evidence of record the Board finds that an evaluation in excess of 50 percent for major depressive disorder from prior to April 22, 2013 is warranted as the Veteran's symptoms more closely approximate a 70 percent evaluation. The Board acknowledges that the Veteran's symptoms have, at times, prior to April 22, 2013, improved. However, the improvement has been temporary and overall the disability picture is best reflected by a 70 percent disability rating prior to April 22, 2013. It is clear from the evidence of record that at the least, throughout the appeal period prior to April 22, 2013, the Veteran's major depressive disorder symptoms progressively worsened. The evidence of record prior to April 22, 2013 reveals subjective and objective complaints of anxiety, depression, panic attacks, forgetfulness, irritability, impaired judgment, suicidal thoughts, at times homicidal ideations, impaired memory, and anger issues. Significantly, the Veteran's treating physician described her symptoms to be productive of serious occupational and social impairment. Moreover, during the appeal period prior to April 22, 2013, the Veteran had to retire from her job due to her inability to be able to continue to cope with the stresses of work due to her major depressive symptoms. Additionally, the Veteran has reported memory problems even remembering her own name and that of her relatives at times. The Board recognizes that at the February 2008 VA examination she was assigned a GAF score of 60 and the examiner stated that the best description of her current symptoms was psychiatric symptoms which cause occupational and social impairment with reduced reliability and productivity. However, the symptomatology described more nearly approximates a disability picture of 70 percent. Indeed, symptoms reported included problems with speech, memory, suicidal and homicidal ideations, panic attacks on a weekly basis, judgment impairment and irritability. These symptoms are more characteristic of a 70 percent disability rating. The Board, therefore, finds that a 70 percent disability rating is warranted for the period of time prior to April 22, 2013. C. Evaluation in excess f 70 percent The assignment of the 70 percent evaluation prior to April 22, 2013 now creates a uniform rating. However, the Board must still consider whether a higher evaluation is now warranted for any time frame. In evaluating the evidence delineated above, the Board finds that while the evidence shows that the Veteran's symptoms of major depressive disorder have mostly been severe, the Veteran's overall disability picture is best represented by a 70 percent evaluation and no more. At no point pertinent the current claim has the Veteran been shown to exhibit the type and frequency, severity and duration of psychiatric symptoms approximating the criteria for a 100 percent rating under the General Rating Formula. While the Veteran may have exhibited some of the symptomatology of a 100 percent disability rating, her overall picture does not meet the criteria for a 100 percent disability rating. While the Veteran was noted to have some suicidal and homicidal thoughts, the evidence shows the Veteran had no intent or plan of the same and was able to control the thoughts. Hygiene was always noted to be normal. While she retired early due to her major depressive disorder, she sought employment after retirement. Moreover, there is no evidence of intermittent inability to perform activities of daily living or of disorientation as to time or place. While there is evidence of some impairment of thought processes, communication, and behavior, such symptoms are not of a gravity comparable to those in the criteria for the maximum 100 percent rating. Regarding delusions, the Veteran denied such. As the Veteran's overall psychiatric impairment is indicative of occupational and social impairment reflecting major deficiencies in most areas, the disability picture presented is consistent with the 70 percent rating assigned. Finally, the Board notes that the Veteran's GAF scores have ranged mostly form the low 50s to mid 60s. This shows moderate to serious symptoms, but not total impairment. In this case, as discussed above, the actual symptoms associated with the Veteran's major depressive disorder have been shown to be of the type, frequency, severity and/or duration that are characteristic of the level of impairment for which a 70 percent rating is assigned. As noted, in determining that the criteria for a rating in excess of 70 percent for the Veteran's service-connected psychiatric disability are not met, the Board has considered applicable rating criteria not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of either the exact symptoms or a specified quantity of symptoms in the rating schedule to warrant the higher rating sought for the psychiatric disability in question. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The above determinations are based on consideration of applicable provisions of VA's rating schedule. Additionally, the Board finds that there is no showing that, at any pertinent point, the Veteran's service-connected major depressive disorder has reflected so exceptional or so unusual a picture as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule to determine whether the veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as 'governing norms.' Id. at 115-16; see also 38 C.F.R. § 3.321(b)(1) governing norms include marked interference with employment and frequent periods of hospitalizations). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether the claimant's disability picture requires the assignment of an extra-schedular rating. Id. at 116. The Board finds that schedular criteria are adequate to rate the Veteran's disability at all times pertinent to this appeal. The rating schedule fully contemplates the described symptomatology-as discussed in detail, above-and provides for a higher rating based on more significant functional impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For the foregoing reasons, the Board finds that an evaluation in excess of 70 percent is not warranted. CONTINUED ON NEXT PAGE ORDER An initial disability rating of 70 percent, but no higher, for a major depressive disorder, prior to April 22, 2013 is granted, subject to controlling regulations applicable to the payment of monetary benefits. A disability rating in excess of 70 percent, for a major depressive disorder is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs