Citation Nr: 1335888 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 08-19 669A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for service-connected depressive disorder with posttraumatic stress disorder (PTSD) for the period of July 28, 2008, to October 20, 2010. 2. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for gynecomastia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran served on active duty in the United States Army from September 1970 to June 1973. This appeal to the Board of Veterans' Appeals, hereinafter the Board, arises from rating decisions issued in September 2007 and March 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In the August 2007 rating decision, in relevant part, the RO denied entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for gynecomastia. In the March 2009 rating decision, service connection was granted for a depressive disorder, which was initially evaluated as 10 percent disabling effective July 28, 2008. The Veteran disagreed with the initial 10 percent disability rating assigned. In a June 2010 rating decision, the RO awarded a 30 percent disability rating for the Veteran's service-connected depressive disorder effective July 28, 2008. Thereafter, in a September 2011 rating decision, the RO awarded a 50 percent disability rating effective October 20, 2010. Furthermore, in an October 2011 rating decision, the RO also granted service connection for posttraumatic stress disorder (PTSD) and continued the 50 percent disability rating for depressive disorder with PTSD. In April 2011, the Veteran appeared and testified at a hearing before an RO Hearing Officer at the Jackson RO. A transcript of that hearing was prepared and has been included in the claims folder for review. The Veteran's appeal was previously before the Board in July 2012. At that time, the issues before the Board also included whether the reduction in rating for residuals of adenocarcinoma of the prostate from 100 percent to 60 percent, effective May 1, 2010, was proper. The Board denied that issue in addition to denying a disability rating higher than 50 percent after October 20, 2010 for the Veteran's service-connected depressive disorder with PTSD; however, it granted a disability rating of 50 percent, but no higher, prior to October 20, 2010. In addition, it remanded the Veteran's § 1151 claim for gynecomastia to the Appeals Management Center (AMC) for further development. The Veteran appealed the July 2012 Board decision to the Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand, the Veteran abandoned all issues decided in the July 2012 Board decision except entitlement to a disability rating in excess of 50 percent for service-connected depressive disorder with PTSD prior to October 20, 2010. Consequently, the Court issued an order in April 2013 vacating the July 2012 Board decision as to that issue only and remanding that issue back to the Board for action in compliance with the Joint Motion for Partial Remand. In addition, the Veteran's claim for compensation under § 1151 for gynecomastia has been returned from the AMC for adjudication. At this time, however, as explained in the REMAND section below, the Board finds that remand of this issue is again warranted and thus this issue is addressed below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT For the period from July 28, 2008, to October 20, 2010, the Veteran's service-connected depressive disorder with PTSD was not productive of occupational and social with deficiencies in most areas. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for a depressive disorder with PTSD were not met from July 28, 2008, to October 20, 2010. 38 U.S.C.A. §§ 1155, 5103A, 5107(b), 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 2.159, 3.321(b)(1), 3.1000, 4.130, Diagnostic Code 9435 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection has been granted for a depression disorder with PTSD. The Board notes that a 50 percent rating has also been awarded for the period beginning on October 20, 2010; however, as previously indicated, the issue of a higher disability rating for that period is no longer on appeal as the Veteran abandoned it in his appeal to the Court. The Veteran, however, continued his disagreement with the denial of a disability rating higher than 50 percent for the period from July 28, 2008 (the date service connection was effective) to October 20, 2010. That issue has been remanded to the Board by the Court pursuant to a Joint Motion for Remand. I. Notice and Assistance Requirements VA has duties 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for the right hip. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. All efforts have been made to obtain relevant, identified and available evidence. The duty to assist includes providing the Veteran a thorough and contemporaneous examination. Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran was afforded VA examinations during the relevant appeal period in January 2009 and July 2009. The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran's claim has been remanded to the Board by the Court pursuant to a Joint Motion for Partial Remand. Therein the parties agreed that the Board erred in not providing adequate reasons and bases as to why the evidence did not support the assignment of a higher disability rating than 50 percent for the Veteran's service-connected psychiatric disorder (depressive disorder with PTSD associated with adenocarcinoma of the prostate) prior to October 20, 2010. In doing so, it pointed to evidence in the record that the parties agreed demonstrated the Veteran reported experiencing hallucinations, paranoia, and suicidal and homicidal ideation. The parties agreed that the Board erred in focusing solely on the Veteran's symptoms and not the level of occupational and social impairment due to such symptoms, citing to 38 C.F.R. § 4.130; Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002); and Thun v. Peake, 22 Vet. Appellant 111, 118 (2008) ("[I]t is not the symptoms, but their effects, that determine the level of impairment."). Disability evaluations are determined by evaluating the extent to which the appellant's service-connected disabilities affect the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. The regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). While the evaluation of a service-connected disability requires a review of the appellant's medical history with regard to that disorder, the Court has held that, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Id.; Peyton v. Derwinski, 1 Vet. App. 282 (1991); 38 C.F.R. §§ 4.1, 4.2. With respect to the issue before the Board, however, the appeal stems from a disagreement with the initial disability rating assigned in connection with the original grant of service connection, and as such, the potential for the assignment of separate, or "staged" ratings for separate periods of time, based on the facts found, are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999). The Board acknowledges that a claimant may experience multiple 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 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. The Veteran's psychiatric disorder has been rated pursuant to the criteria found at 38 C.F.R. § 4.130, Diagnostic Code 9435. 38 C.F.R. § 4.130 establishes a general rating formula for mental disorders. The formula assesses disability according to the manifestation of particular symptoms, providing objective criteria for assigning a disability evaluation. This general rating formula provides in relevant part that: 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-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 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 a work-like setting); inability to establish and maintain effective relationships. A 100 percent schedular evaluation, contemplates 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. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). Id. Global Assessment of Functioning (GAF) 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 (1996) citing DSM-IV. Rating agencies are charged with the responsibility of being thoroughly familiar with DSM-IV in order to apply the general rating criteria for rating mental disorders. See 38 C.F.R. § 4.130. Under DSM-IV, GAF scores ranging between 61-70 are assigned when there are 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. Id. A GAF score between 51 to 60 is assigned when there are moderate symptoms (like flat affect and circumstantial speech, and 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 score ranging between 41 and 50 is 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). Id. Turning to the relevant evidence of record, the Veteran underwent an initial VA Mental Health consultation in October 2007. The Veteran reported that he was having feelings of sadness, depression, helplessness, and hopelessness. He admitted also that he had lost of interest in "everything." He further reported that, because of his prostate cancer, his self-confidence as a man had been reduced due to his incontinence and erectile dysfunction. He related that his cousin died recently from a recurrence of prostate cancer and his depression was exacerbated after he was told he had a chance of recurrence of his prostate cancer by the oncologist. He further reported "hav[ing] this inner fear I'm going to die." With regard to suicidal ideation, the Veteran admitted he had had "thoughts off and on for many years." He reported that he had had shotguns but his wife gave them to his daughter a couple of months before after he told her he did not feel like a whole man and was sitting in his bedroom looking at the TV all day and night and she got worried. The Veteran, however, denied any concrete plan to harm himself or past attempts to do so. As for homicidal ideation, the Veteran admitted that he had "frequent thoughts of hurting people if angered." He denied, however, any concrete plans to harm others, denied spousal abuse and stated "I try to stay away from people." The Veteran endorsed auditory hallucinations ("voices tell me 'they are out to get you...'). He was also noted to have paranoia because he stated "I don't trust people." He further endorsed visual hallucinations, stating that "I see shadows...out the kitchen window...in my car out the car window when I am driving...it seems someone is there and when I look they are gone." The Veteran further reported sleep disturbance in that he only sleeps two to three hours a night. He reported having combat dreams that had worsened since the Iraqi war. He stated these nightmares began in 1975. He stated the nightmares increase with stress and that his wife stated he fights and kicks in his sleep. He also related having intolerance for crowds, startle response ("with noise, phone ringing makes me jump"), and hypervigilance ("I will go out at night to check on noises, I turn the outdoor lights on and off to see if someone is out there."). With regard to occupational history, he stated, "I can't keep a job, I don't feel I'm worth much.... I drive trucks.... If I get mad or feel people are plotting against me I will quit a job." Socially, he stated he used to fish but has not done so since his diagnosis with prostate cancer. He further reported he has problems managing money and that his wife pays all the bills. He also related difficulty focusing on and completing a single project. On mental status examination, the psychiatrist indicated that the Veteran was cooperative, had good eye contact and was appropriately dressed and groomed. He was oriented in person, place and time. Psychomotor activity was agitated/slowed, but without involuntary movements. His mood was sad and angry and his affect was flat but appropriate to speech content and stated mood. His speech was soft-voiced, monotone and with garbled words but was normal in amount, rate and rhythm. Thought content was questionable for looseness of associations, flights of ideas, ideas of reference, circumstantiality and tangentiality. His thought process was, however, goal directed and coherent. His thought content was negative for delusions but positive for paranoia, which was noted to not be new but chronic. The psychiatrist also noted that the Veteran's auditory/visual hallucinations and suicidal/homicidal ideations were chronic as these were reported as not acute or new symptoms. The psychiatrist noted the Veteran had obsessions/compulsions listed as "combat trauma" and "fears death." The Veteran's judgment and insight were noted to be poor. The psychiatrist's impression was that this was a Vietnam combat Veteran with 100 percent service connection for medical, has a positive PTSD screen and past history of alcohol self medication post Vietnam. He had paranoia that has been long term - reported as not new. He had auditory/visual hallucinations, reported as not new. He had chronic suicidal thoughts, denied concrete plan, reported as not new. He had chronic anger with homicidal thoughts, denied concrete plan, reported as not new. He self discontinued alcohol abuse but had restarted smoking after three year cessation. He was recently diagnosed to have prostate cancer, undergoing treatment, and feared death (cousin recently died from prostate cancer). He also recently experienced the death of a close friend from a myocardial infarction that week and was grieving. He had severe depression with anaerobia, helplessness and hopelessness; chronic sleep deprivation with poorly treated sleep apnea; and tobacco use. Axis I diagnoses where PTSD exacerbated by general medical condition; chronic suicidal thoughts without concrete plan; chronic sleep deprivation with sleep apnea; and psychosis. A GAF score of 35 to 45 was given. The psychiatrist noted that the Veteran had severe complex mental health signs and symptoms but he did not fit criteria for forced admission and he refused admission. The Veteran agreed to return the next week for follow up evaluation so he could attend his friend's funeral. He stated he felt he is safe and would not harm himself or others and contracted verbally to go into a medical facility if he was in crisis. He was started on Seroquel for mood, psychosis and sleep. The Veteran was seen five days later on follow up and at that time denied having had any suicidal thoughts since his last visit. He appeared calmer and seemed less stressed and depressed than when last seen. He reported that the Seroquel was too sedating and his dose was reduced. The Veteran was seen again a month later in November 2007 for follow up. At that time, he continued to endorse depressed mood and sleep disturbance. He reported he stopped taking the Seroquel because of difficulty tolerating it. He stated, "I was kind of depressed all the time but the prostate cancer made it even worse." He discussed his prostate cancer, the recent death of his best friend, and receiving a phone call a couple of days ago regarding the hospitalization of another close friend (his wife's brother). He reported that, at that point, sleep was his "biggest" concern. He denied suicidal/homicidal ideations or mania. The psychotic symptoms endorsed previously were denied that day. His judgment and insight were noted to be adequate. There was no evidence of suicidality, delusions, hallucinations or signs of psychosis. No looseness of associations, flights of ideas, or ideas of reference were noted. The impression was PTSD and a GAF score of 45 was assigned. Subsequent VA mental health treatment records show his symptoms remained clinically stable without evidence of suicidal/homicidal ideations or psychosis until September 2008. At that time, the Veteran was seen for mental health follow up with complaints of worsening symptoms, especially agitation, due to his daughter and her family moving into his home. He reported that the increased number of people in his house and the increased noise has heightened his hyper-arousal and startle response. He mentioned several times in the session how he did not like crowds. He described his feelings as "I'm always on guard.... Jumpy and jittery.... Sometimes it is like I'm looking down a tunnel and you can't see. It bothers me a lot when leaving the house and it affects my driving some times. It's like I can't focus." He discussed intrusive thoughts of his combat experience when coming into the building. Cognitively, he reported "I'm forgetting a lot more." He denied suicidal ideations but mentioned having times of death wishes. The diagnoses were rule out PTSD and anxiety disorder, not otherwise specified. The prior GAF score of 45 was continued. At a January 2009 follow up visit, the Veteran reported increased anxiety and irritability related to an upcoming VA examination scheduled. He reported still having some difficulty with cognition - short term and immediate recall. He was noted to be fully oriented and clinically stable without suicidal/homicidal ideations or plan or psychosis. There were no delusions, hallucinations or signs of psychosis noted. In January 2009, the Veteran underwent a VA mental disorders examination. At the examination, he complained of feeling less of a man because of his prostate cancer. He reported poor sleep, anxiety of his prostate cancer returning, being moody and withdrawn, and without any energy. It was noted that suicidal ideation was present with the intent to keep himself safe. Regarding his PTSD symptoms, the Veteran reported experiencing intrusive recollections and nightmares of Vietnam service. He avoided thoughts associated with this trauma and had diminished interest in significant activities. The future looked very threatened. Arousal symptoms included insomnia, irritability, poor concentration, and exaggerated startle response. The Veteran stated "voices are within my head." During the interview, these voices told him what to do, for example, he did not need to be here right now because no good would come of it. The Veteran felt he could not trust police officers though he had no classic paranoia. The frequency of his symptoms were noted to be daily and of mild to moderate severity. Occupationally, the Veteran reported having held approximately 40 jobs during his lifetime as a concrete worker and trucker. He reported being unemployed since prostate radiation began in July 2007. He denied a history of being fired or reprimanded because of mental health issues. Socially, it was noted that the Veteran had been married to his current wife for over thirty years, and that he was close to family. However, he also admitted that he did not have friends now, he was not a member of any organizations, he did not go to church, and he did not attend reunions or other functions. Regarding occupational functional impairment, the examiner noted that the Veteran reported "I couldn't work with nobody." He does not like anyone standing over him. The examiner stated that the Veteran had no other symptoms affecting his ability to work and that this represents mild impairment to his employment function. Regarding social functioning, the examiner noted the Veteran reported "I don't have a social life." The examiner noted that social withdrawal constrains social interaction, and that overall social impairment was mild. The examiner further noted the Veteran had been in mental health treatment at VA since October 2007 with supportive care and medication follow up approximately every three months. He was currently taking Zoloft and Trazadone but the Veteran reported these were not helping. On mental status examination, the Veteran was noted to have a normal general appearance and to be neatly dressed and groomed. His behavior was within normal limits. Sensorium was clear. The Veteran was cooperative and communication was intact. His speech was normal in speed and amount. Psychomotor activity was within normal limits. Eye contact was normally maintained. Mood and affect were within normal limits. Thought processes were linear and thought content unremarkable. Suicidal ideation was present with intent to keep himself safe. No evidence of psychosis was seen. Report of auditory hallucinations was not indicative of a psychotic condition. Memory, insight, and judgment were intact. A cognitive screen was within normal limits. Axis I diagnoses included PTSD and depression secondary to general medical condition, prostate cancer. A GAF score of 65 was assigned for both diagnosed disorders. The examiner further wrote that the severity of symptoms was mild to moderate in nature. He stated that the Veteran had no unemployment or time off from work due to his mental health. The Veteran's symptoms do affect his employment and social functioning as stated above. He reported that the GAF score of 65 reflects mild impairment in employment and social functioning. The examiner further noted that both PTSD and depression secondary to general medical condition, prostate cancer, are intertwined and the symptoms of these cannot be separated from the other without undue speculation. The impairment from both disorders likewise cannot be separated from each other. Neither disorder causes the other. At a visit with his primary care physician in February 2009, the Veteran reported having hallucinations or illusions where he sees people go by his window. He reported having flashbacks of Vietnam. He stated he had not stayed with the same job for a year. He would have thoughts about hurting someone and would leave the job. He also reported injuring his wife in his sleep - twisted her arm in bed - and he does not wake up from these episodes. He described fighting in his sleep. An April 2009 mental health note, however, indicates the Veteran was clinically stable without hallucinations, suicidal/homicidal ideations or psychosis. In a statement dated in July 2009, the Veteran's spouse stated that he suffers from depression and is always irritated. This is constant. The Veteran has trouble sleeping. He suffers from "bad nerves", which is also "pretty constant." He is not able to concentrate. His memory is poor. In July 2009, the Veteran underwent a second VA mental disorders examination. The examiner indicated that the symptoms and manifestations previously expressed were also present in July. That is, he had intrusive recollections, nightmares, arousal symptoms, and avoidance symptoms typical of PTSD. It was also noted that the Veteran tried to return to work driving a truck in the interim since the last VA examination. He stated, "I like[d] to have killed some people." He reported he had a wreck because he did not see another vehicle, which was a motorcycle, and the rider was significantly injured. He reported sleep deprivation (only two hours a night). He also related that he can see something out of the corner of his eye, like a person walking. There was, however, no clear paranoia. He had suicidal thoughts but no plans and was able to keep himself safe. He reported consistently feeling depression and having poor energy. Again, the frequency of his symptoms was noted to be daily and of mild to moderate severity. The examiner noted that the Veteran had not been seen in Mental Health since January 2009; however, he continued to take Trazadone at night albeit irregularly. Social and employment history was the same as reported at the previous examination except that he tried to go back to work for three days with the results as previously mentioned. Regarding employment functioning, the examiner stated that the Veteran did not like being around a lot of people and he tended to isolate. His attention and stamina were poor. The Veteran did not feel like he could get along with anybody well enough to work with them. The examiner stated that no other symptoms affected his work performance and the overall effect was mild to moderate. Regarding social functioning, the examiner stated that the Veteran had social isolation. He had irritability as well and did not see people very much, excepting his close family. The examiner stated that no other symptoms affected the Veteran's social functioning and the overall effect was mild to moderate. Mental status examination was essentially within normal limits except for the examiner noting the Veteran's mood was mildly depressed and suicidal ideation was present (although the Veteran was able to keep himself safe and had no plans). The examiner further significantly noted that there was no evidence of psychosis. A GAF score of 65 was once again assigned. The examiner stated that this reflects mild-to-moderate impairment in employment and social functioning. The examiner further stated that the Veteran was able to work and was able to function in his normal occupational environment considered from the viewpoint of mental health. In September 2009, the Veteran underwent evaluation for the Trauma Recovery Program (TRP) at VA. He reported PTSD symptoms including nightmares, sleep disturbance, fighting/kicking in sleep, not being able to handle crowds or be around people, does not watch combat/war movies or news, diminished interest in significant activities (although he reported spending time doing yard work or computer work, hunting but not as often, and fishing sometimes if he has company), sense of foreshortened future/hopelessness, depression, and problems with sleep, anger, concentration, hypervigilance, and exaggerated startle response. He reported that, since starting on medication, he has more good days and is not as easily agitated. Sometimes he has a passive wish to die. Mental status examination was within normal limits except for dysphoric mood and restricted affect. The assessment was PTSD, and a GAF score of 65 was assigned. On his first follow up in November 2009, the Veteran complained of poor sleep, bad dreams twice a week, decreased mood, some thoughts of worthlessness (feels "less than a whole man" after his prostate cancer diagnosis), and inability to enjoy past hobbies and interests due to medical problems. He was noncompliant with medications because he forgets to take them two to three times a week. Mental status examination was within normal limits except the Veteran's mood was noted to be depressed and his affect flat. He denied suicidal or homicidal ideations, intent or plan. At a December 2009 TRP follow up visit, the Veteran reported poor sleep and isolation. He reported difficulty falling asleep and waking frequently from outside noises. He reported falling asleep between 2:00 and 3:00 a.m. and sleeping until 10:00 to 11:00 a.m. He reported he dreams a lot about his neighbor's son, who was serving in Iraq, his time in the military, and serving in Vietnam. He attributed some difficulty sleeping at night to recent home burglaries in his neighborhood. He reported he has installed a security system and motion detector lights around his home. He reported he continues to isolate at home and spends his free time watching television. He reported he avoids crowds, public places and stress situations because he becomes irritable and to reduce the possibility of having an altercation when he gets agitated. The Veteran described himself as "quick tempered." Mental status examination was within normal limits. His mood was noted to be stable and his affect congruent to mood. He denied suicidal/homicidal ideations, intent or plan in the past two weeks. He further denied any auditory and/or visual hallucinations. On TRP follow up in March 2010, the Veteran continued to complain of typical PTSD symptoms. He also reported having homicidal and suicidal ideations intermittently although he reported he had no intention on acting to either harm himself or others. A depression screening (PHQ-9) score was suggestive of severe depression. The assessment was PTSD. In May 2010, however, the Veteran denied any suicidal or homicidal ideations, intent or plan. He also denied any auditory and/or visual hallucinations. His main complaints were of depressed mood that he related to the upcoming anniversary of his mother's death and having attended funerals for several family members over the previous couple of weeks as well as continued sleep disturbance. In August 2010, the Veteran attended his first TRP Outpatient Emotion Regulation Group session. He reported he was having problems with guilt, anger and anxiety; however, he indicated he was not motivated to change the way he managed his emotional problems. In determining whether an increased evaluation is warranted, the VA must determine whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case an increased rating must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107. In evaluating a veteran's disability, the Board is mindful that when it is not possible to separate the effects of the service-connected condition from a non-service connected condition, 38 C.F.R. § 3.102, which requires that reasonable doubt be resolved in a veteran's favor, dictates that such signs and symptoms be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181 (1998). When determining the appropriate disability evaluation to assign, the Board's "primary consideration" is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan, 16 Vet. App. at 442. "The use of the term 'such as' [in the rating criteria] demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Accordingly, any suggestion that the Board [is] required, in complying with the regulation, to find the presence of all, most, or even some, of the enumerated symptoms is unsupported by a reading of the plain language of the regulation." Mauerhan, 16 Vet. App. at 442. However, because "[a]ll non-zero disability levels [in § 4.130] are also associated with objectively-observable symptomatology and the veteran's impairment must be 'due to' those symptoms," the plain language of the regulation makes it clear that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio, 713 F.3d at 116-117. Upon reviewing the record, it is the conclusion of the Board that the evidence does not support an evaluation higher than 50 percent for the Veteran's depressive disorder with PTSD during the period of July 28, 2008, to October 20, 2010. The medical evidence indicates that the Veteran's symptoms during the relevant period mainly consisted of depression, isolation, anger-management problems, sleep deprivation, hypervigilance, exaggerated startle response, intrusive recollections, nightmares, irritability and avoidance of crowds and places with lots of people. The Board further acknowledges that there are some notations of the Veteran reporting suicidal ideation without plan or intent, homicidal thoughts without plan or intent, paranoia, and auditory and/or visual hallucinations. After considering these symptoms, even though some of them may be listed in the criteria for the next higher rating, the Board finds that their frequency, severity and duration are not such that they are consistent with the criteria for a 70 percent disability rating, nor do they cause impairment of occupational and social functioning in most areas. Significantly, the VA examiners characterized the Veteran's symptoms as only mild to moderate in severity, which is consistent with the current 50 percent disability rating. More importantly, with regards to the Veteran's functioning, the examiners indicated his depression and PTSD would only cause mild to moderate impairment of occupational and social functioning. Specifically, the January 2009 VA examiner stated the Veteran's occupational impairment was only reflected by the Veteran's statements that he "couldn't work with nobody" and he did not like people "standing over me." The examiner stated that this represents mild impairment to his employment function. The July 2009 VA examiner stated that the Veteran's occupational impairment was mild to moderate due to the Veteran not liking to be around a lot of people, his tendency to isolate, poor attention and stamina, and his feeling like he cannot get along with anybody well enough to work with them. Both examiners stated these were the only symptoms affecting the Veteran's work performance. Furthermore, the January 2009 VA examiner noted that the Veteran reported he had suffered no unemployment or time off from work due to his mental health despite his report that he worked over 40 jobs as a concrete worker and trucker. Significantly, the July 2009 VA examiner opined that the Veteran was able to work and able to function in his normal occupational environment from the viewpoint of mental health even though the Veteran had reported he tried to return to work as a truck driver but lost the job after only three days because he caused an accident (although the Veteran reported it was because he did not see the other vehicle). As for the Veteran's social functioning, both examiners found the main symptom causing impairment was his social withdrawal/isolation. In addition, the July 2009 VA examiner listed the Veteran's irritability as another symptom causing impairment of social functioning. The Veteran was noted to have no social relations other than with family members. Neither examiner indicated that any other symptoms affected the Veteran's social functioning. The examiners characterized the Veteran's social impairment due to these symptoms as mild to moderate. Furthermore, both VA examiners assigned a GAF score of 65 for the Veteran's depression and PTSD, which they stated indicated mild to moderate impairment in occupational and social functioning. Consequently, the Board concludes that the VA examinations in January and July of 2009 demonstrate that the Veteran's symptoms were not of such a severity to cause occupational and social impairment consistent with the 70 percent rating criteria (i.e., symptoms that cause deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood). In fact, the VA examiners found at most the Veteran's symptoms caused only mild to moderate impairment in work and significantly the July 2009 VA examiner found that the Veteran would still be able to work and function in his normal occupational environment from the viewpoint of mental health. As for the affect on the Veteran's family relations, the evidence shows he maintains good family relations. It is outside relationships that he has difficulty with. Moreover the evidence fails to demonstrate that the Veteran's judgment or thinking have been impaired to a significant degree. The evidence shows in general that his thought process was linear and his thought content unremarkable. As for his judgment, the evidence has shown it was essentially intact and adequate. The Board acknowledges that the records reflect symptoms such as suicidal ideation, homicidal thoughts, auditory and visual hallucinations, and paranoia. The Board finds, however, that such symptoms, although listed in the criteria for a 70 percent or higher rating, do not rise to such severity as the remaining symptoms indicated for the higher rating nor does the evidence establish that these symptoms had any effect of the Veteran's occupational and/or social functioning such that the Veteran's disability picture was more accurately reflected by a 70 percent disability rating for the applicable period of time. See Vasquez-Claudio, supra. As to suicidal ideation, the record consistently shows the Veteran reported he had no plan or intent, stated that he would not harm himself, and, in fact, has never acted on any of his thoughts. "The degree of suicidality is on a continuum ranging from recurrent wishes to be dead, to feelings that others would be better off if one were dead ('passive suicidal thoughts'), to formulating suicidal plans to overt suicidal behaviors." DSM-IV Handbook of Differential Diagnosis, Chapter 2, p. 112 (American Psychiatric Press, 1995). Consequently, the Board finds that the Veteran's suicidal thoughts are more at the beginning of the continuum in severity; in other words, his reports are consistent with passive suicidal thoughts since the evidence shows he sometimes had "death wishes" but had never formulated any intent or plan, or made any suicidal gestures. Moreover, the Board notes that, although the psychiatrist who conducted the initial mental health evaluation at VA in October 2007 stated the Veteran had chronic suicidal thoughts, just five days later, the Veteran reported having no additional suicidal thoughts since the previous visit and the subsequent VA mental health treatment records (which demonstrate the Veteran was seen regularly thereafter) showed the Veteran's mental health condition was clinically stable and he had no suicidal thoughts until September 2008 at the earliest (which treatment note indicates there was no suicidal ideation but the Veteran had "death wishes"). Subsequent mental health treatment records did not show suicidal ideation reported again until September 2009 when the Veteran was evaluated for treatment with TRP, at which time he once more only reported a passive wish to die. Hence, although the October 2007 treatment note shows an assessment of chronic suicidal thoughts, the subsequent VA treatment notes fail to demonstrate the Veteran reported continuous or persistent suicidal ideation. At most he had infrequent intermittent suicidal thoughts described as "death wishes" without an intent or plan. Furthermore, though suicidal ideation was noted at the VA examinations, the examiners noted that the Veteran had no intent or plan and was able to contract for safety. Consequently, the Board finds that the frequency, severity and duration of the Veteran's suicidal ideation, which is most consistent with the lower continuum of the spectrum because they are merely "death wishes" without any intent or plan or history of suicidal gestures or behaviors, is not consistent with the severity of symptoms needed to be consistent with the criteria for a 70 percent disability rating. See Vazquez-Claudio, supra. As for the Veteran's homicidal thoughts, based upon his reports, these appear to essentially have been present when the Veteran was working. The Board notes that the evidence clearly shows the Veteran quit working in July 2007 when he started treatment for his prostate cancer diagnosed in February 2007, and, except for three days between January and July of 2009 when he tried to return to work as a truck driver, he had not worked since then. Consequently, during the relevant period of time, the Veteran's homicidal thoughts at most were intermittent rather than constant. In addition, like with his suicidal thoughts, his reports of homicidal thoughts are vague and without intent or plan of action. Furthermore, the Veteran never acted on such thoughts nor did he have a history of violent behavior towards others. Consequently, the Board finds that the severity of the Veteran's homicidal thoughts is similar to that of his suicidal ideation, in other words, of infrequent passive thoughts without intent or plan compared to frequent or constant active thoughts with homicidal behaviors or actions. Thus, the frequency, severity and duration of the Veteran's homicidal thoughts are not consistent with the symptoms listed in the criteria for a 70 percent disability rating. See Vazquez-Claudio, supra. As for the auditory/visual hallucinations and paranoia, except for the report at the October 2007 initial mental health evaluation, it is not even clear that the Veteran actually had hallucinations and paranoia. At the October 2007 initial mental health evaluation the Veteran reported hearing voices telling him "they are out to get you" and seeing shadows out the kitchen or car window and when he would look no one would be there, which the psychiatrist characterized as auditory and visual hallucinations. As for paranoia, the Veteran reported he would quit a job if he felt people were plotting against him and stated he did not trust people. Significantly, the VA psychiatrist evaluating the Veteran diagnosed him to have a psychosis in addition to PTSD, presumably because of these psychotic symptoms. Subsequent mental health follow up records, however, failed to demonstrate any continued psychosis or reports of psychotic symptoms such as hallucinations or paranoia and the diagnosis of psychosis was dropped. Significantly the Veteran's next report of hallucinations was not until the January 2009 VA examination at which he reported having voices in his head that, at the time of the examination, were telling him he did not need to be there because no good would come out of it. He did not report having visual hallucinations. The examiner stated on mental status examination that the report of auditory hallucinations was not indicative of a psychotic condition. In addition, although he reported the he felt he could not trust police officers, the examiner noted that he had no classic paranoia. Similar findings were made at the July 2009 VA examination, although at that time he reported having visual hallucinations ("seeing something out of the corner of his eye, like a person walking") but no auditory hallucinations. Despite the Veteran's report, the examiner found no evidence of psychosis. Likewise, the examiner found that there was no evidence of clear paranoia. Furthermore, the VA treatment records during the relevant period of time note only one report of visual hallucinations versus illusions (seeing people go by window) in February 2009 and fail to note any paranoia. Given this evidence, the Board finds that, although the Veteran may have reported a significant history of hallucinations and paranoia at the October 2007 initial mental health evaluation, these symptoms clearly improved in severity with treatment given the Veteran's lack of report of such symptoms to his treating providers and their findings, along with those of the VA examiners, that there was no evidence of psychosis or paranoia to explain the Veteran's reports. Consequently, these symptoms fail to rise to the same level as the symptoms listed for a 70 percent disability rating because of their lack of frequency, severity and duration as demonstrated by the VA examiners findings and the lack of report of such symptoms to the Veteran's treating providers. Finally, the Board notes that its finding that the severity of the Veteran's suicidal ideation, homicidal thoughts, visual and/or auditory hallucinations and paranoia were not of such severity to be consistent with the symptoms listed for a 70 percent disability rating is supported by the VA examiners' findings that his symptoms were mild to moderate in severity. More significantly, the Board finds that the evidence fails to demonstrate that these symptoms caused impairment of the Veteran's occupational and social functioning. Neither VA examiner appears to have placed much significance on these symptoms nor did they indicate that these symptoms caused any occupational and/or social impairment. Both examiners clearly stated what symptoms they found to be affecting the Veteran's occupational and social functioning and those symptoms did not include suicidal ideation, homicidal thoughts, hallucinations and/or paranoia. Such conclusion is also reflected in the GAF scores of 65 given by the VA examiners, which was based on the Veteran having no more than mild to moderate impairment of occupational and social functioning due to his mild to moderate symptoms. Consequently, the Board finds it is clear that, based on the VA examiners findings and the assignment of a GAF score of 65, that the VA examiners did not find that the Veteran's suicidal thoughts, homicidal thoughts, hallucinations and/or paranoia caused any impairment of the Veteran's functioning. In making this determination, the Board acknowledges that the VA treatment records show that a GAF score of 45 was assigned in October 2007 and was continued until September 2009 when the Veteran was reassessed for TRP treatment, at which time a GAF score of 65 was assigned. The Board notes, however, that the October 2007 treatment note clearly indicates that the psychiatrist who did the evaluation felt that the Veteran was in distress at that time and in need of hospitalization given his suicidal ideation. The Veteran declined hospitalization and, in fact, upon his return five days later, reported having had no suicidal ideation since the last visit. Subsequent treatment notes showed no further reports of suicide thoughts for almost a year. Consequently, the GAF score of 45 given in October 2007 was clearly assigned at a time when the Veteran was in acute distress and was not revisited despite the Veteran's improvement with treatment (as shown by his reported symptoms) until his reevaluation for treatment with the TRP in September 2009. The GAF score provided at that time is consistent with those give by the VA examiners. Hence the Board finds that during the relevant period of July 2008 through October 2010, the GAF scores of 65 more accurately reflected the level of the Veteran's functioning than the GAF score of 45 seen in the VA treatment records. The Board further notes that, although the October 2007 treatment record is relevant in so far as it provides an overall picture of the Veteran's disability picture and this is an initial increased rating claim, the findings shown in the October 2007 treatment record cannot be the basis for granting a higher disability rating because service connection for the Veteran's psychiatric disability is not effective until July 2008, when the Veteran filed his claim. Given the significant improvement shown in the VA treatment records between October 2007 and July 2008, a staged rating is not suggested because the treatment records fail to demonstrate that the Veteran's psychiatric disability at the time he filed his claim in July 2008 was of the same severity as when he first underwent mental health evaluation in October 2007. Consequently, the Board finds that a staged rating based upon the October 2007 VA mental health evaluation note is not warranted, and is in fact barred by law because the effective date of a grant for service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400. The Board acknowledges the decision in Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009); however, finds this case to be distinguishable given that there are continuous treatment records from the initial evaluation in October 2007 until the claim for service connection was filed in July 2008 that clearly demonstrate an improvement of the Veteran's psychiatric condition, and subsequent treatment records also continued to show the Veteran's psychiatric disability picture to be consistent with no more than the criteria for a 50 percent disability rating that the Board assigned in the July 2012 decision (which is noted to not have been disturbed by the Joint Motion for Remand and Court's Order dated in April 2013). Based upon the foregoing, the Board finds that an initial disability rating higher than 50 percent for the Veteran's depressive disorder with PTSD is not warranted because the evidence fails to demonstrate that the Veteran's symptoms, to include suicidal ideation, homicidal thoughts, hallucinations and/or paranoia, are of such frequency, severity and duration as to be consistent with the symptomatology represented by the symptoms listed in the criteria for a higher 70 percent disability rating. More importantly, the evidence fails to demonstrate that the Veteran's symptoms result in more than mild to moderate impairment of occupational and social functioning. Consequently, the Board finds that the preponderance of the evidence is against finding that the schedular criteria for a disability rating higher than 50 percent has been met. The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected psychiatric disability. The Veteran's disability is manifested by impairment in social and occupational functioning; the rating criteria contemplate these impairments. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). In conclusion, the Board finds that the preponderance of the evidence is against finding that a disability rating higher than 50 percent is warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The claim must, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to an initial disability rating in excess of 50 percent for service-connected depressive disorder with PTSD for the period of July 28, 2008, to October 20, 2010, is denied. REMAND The Board finds that remand of the Veteran's § 1151 claim for gynecomastia is required for clarification of the VA examiner's medical opinion provided in April 2013 due to the recent decision by the Court in Schertz v. Shinseki, No. 11-2694 (Sep. 26, 2013). In Schertz, the Court held that the standard in determining whether an event was reasonably foreseeable is what a "reasonable health care provider" would have considered to be an ordinary risk of treatment that would be disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32, which requires the primary health care provider to explain the reasonably foreseeable risks associated with the surgery or treatment being provided. This means that the actual foreseeability of an event by a treating physician, an expert, or any other health care provider, is not dispositive. In the April 2013 medical opinion, the VA examiner stated with regard to foreseeability: "While a known side effect of spironolactone use, gynecomastia is a relatively rare one, and may even resolve when medication is stopped. Use of spironolactone is a common and accepted medical practice for the treatment of hypertension. The condition was recognized as soon as the Veteran presented with a complaint of breast tenderness and the medication was then stopped. In my opinion, it was less likely than not that it was foreseeable that this Veteran would develop gynecomastia as a result of his treatment for hypertension with spironolactone." Unfortunately, the Board finds that this opinion does not comply with the Court's holding in Schertz. Consequently, remand is warranted to return the Veteran's claims file to the VA examiner for clarification of his opinion given the Court's holding in Schertz. Accordingly, this case is REMANDED for the following: 1. Return the Veteran's claims file to the VA examiner who provided the April 2013 medical opinion. If that examiner is unavailable, the claims folder should be referred to an appropriate physician for the opinion. The examiner should be asked to provide the following medical opinion with regard to whether the Veteran's gynecomastia was reasonably foreseeable: Is it at least as likely as not that a "reasonable health care provider" would have considered gynecomastia to be an ordinary risk of the treatment provided and would have disclosed such risk in connection with such treatment? 2. Thereafter, the Veteran's claim should be readjudicated with consideration of the Court's decision in Schertz v. Shinseki. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs