Citation Nr: 1335976 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 07-04 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for dysthymic disorder. 2. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from May 1979 to March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the RO in St. Louis, Missouri, which continued the 50 percent rating for the Veteran's service-connected dysthymic disorder. The Board Remanded the appeal in December 2009 and in March 2011. In her 2007 substantive appeal, the Veteran requested a hearing before the Board. The Veteran withdrew that hearing request in a written March 2007 statement. FINDINGS OF FACT 1. The Veteran's dysthymic disorder resulted in occupational impairment with reduced reliability and productivity, but the fact that the Veteran completed advanced degrees during this period, and the Veteran's demonstrated close relationships with her sisters and her assistance to family members establishes that the service-connected disability did not result in deficiencies in most areas, such as school, family relations, judgment, or thinking. 2. The Veteran's dysthymic disorder, evaluated as 50 percent disabling, is her only compensable service-connected disability; her other service-connected disability, cyst excision, left ear, is noncompensable. 3. During the period from 2004 to 2013, the Veteran completed a bachelor's degree, a master's degree, and was working on a doctoral dissertation in May 2013, when she requested that her providers submit a statement indicating that her disability would not preclude her from continuing to work toward her doctorate. 4. The medical evidence and the evidence of the Veteran's work-like assistance to family members and academic achievements establish that the Veteran's service-connected disabilities have not precluded employment during the lengthy pendency of this claim and do not currently preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for service-connected dysthymic disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.126, 4.130, Diagnostic Code (DC) 9433 (2013). 2. The criteria for schedular award of TDIU or for referral for extraschedular consideration for TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.16, 4.18, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that she is entitled to an increased rating for service-connected dysthymic disorder and is entitled to TDIU. Duties to Notify and Assist VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between a Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran received numerous communications describing the evidence required to substantiate the claim for an increased rating and the claim for TDIU. The first communication regarding the Veteran's 2005 claim for an increased rating was issued in June 2006. A June 2006 letter advised the Veteran of the evidence required to substantiate her claim for an increased rating. In its December 2009 Remand, the Board discussed the additional evidence required to develop the claim for an increased rating, and inferred the claim for TDIU. Following the Board's 2009 Remand, the Appeals Management Center (AMC) issued a March 2010 letter that advised the Veteran of the criteria for determining a disability rating and an effective date, requirements of notice discussed in Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). This letter reiterated the types of evidence the Veteran could identify or submit to substantiate her claims. The Board again Remanded the appeal in March 2011, and the AMC issued another letter in March 2011 which addressed each of the elements required to meet VA's notification duty. In addition to these three letters specifically intended to meet the duty to notify, the Veteran was sent a statement of the case (SOC) and two supplemental statements of the case (SSOCs), among other communications issued over the course of the 8 years of the pendency of this appeal. The claims on appeal have been readjudicated prior to the transfer and certification of this case to the Board. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Neither the Veteran nor her representative has alleged prejudice with respect to notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board finds that no defect in the timing or content of notice to the Veteran is apparent from the record. The Veteran's communications demonstrate that she received notice regarding relevant evidence. The Board finds that notice in compliance with the VCAA has been provided. VA has also met with its duty to assist the Veteran. Her service treatment records were already associated with the claims files before the Veteran submitted her claim for an increased rating and TDIU. Identified VA and non-VA health care records have been obtained. Records have also been obtained from the Social Security Administration (SSA), as directed in the December 2009 Board Remand. The Board emphasizes that it has reviewed all records received from SSA. However, as all clinical and administrative SSA records are dated prior to 2002, the SSA records are primarily addressed in the summary of the Veteran's history prior to the claim on appeal, which arose in 2005. Information from the Veteran's last employer was received. The Veteran has been afforded VA examinations in 2006, 2011, and 2013. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained in this case, and in particular the 2013 examination, are more than adequate, as they are predicated on a full reading of the private and VA medical records in the Veteran's claims file. All of the pertinent evidence of record, to include examinations of the Veteran's disability and her own statements of how it affects her daily life, were duly considered. In its March 2011 Remand, the Board raised the question whether the Veteran's claim for a TDIU should be referred to the Director of Compensation and Pension Services for an extraschedular evaluation. Reference was made to the findings made by the SSA in 2001. A reading of the body of the Remand suggests that a referral should be ordered if the Veteran did not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). However, in the order section of the Remand, the Board more precisely indicated that a referral should be made only if it was deemed warranted, which was essentially a direction to the AOJ/AMC to consider whether a referral was in order. The AMC did consider whether a referral was warranted and ultimately determined that such was not necessary. Put another way, the AMC substantially complied with the directives of the Board's March 2011 Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not identified any other clinical or nonclinical evidence that might be relevant to her claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Claim for increased disability evaluation The law provides that disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify various disabilities. See 38 C.F.R. Part 4. Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C.A. § 1155. Requests for increased disability ratings require consideration of the medical evidence of record compared to the criteria in the VA Schedule for Rating Disabilities. See 38 C.F.R. Part 4. If the evidence for and against a claim is in equipoise, the claim will be granted. Consideration must be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Criteria for evaluating dysthymia Dysthymia is evaluated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code (DC) 9433. Under The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130, 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. To demonstrate entitlement to a 70 percent evaluation, the evidence must show deficiencies in most areas and such symptoms as suicidal ideation; obsessional rituals; speech intermittently illogical, obscure, or irrelevant; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene. Entitlement to a 100 percent schedular evaluation is warranted where there are such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. The Court has noted that Global Assessment of Functioning (GAF) scores are scaled ratings 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); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders 32 (4th ed.) (DSM-IV). VA's Rating Schedule employs nomenclature based upon the DSM-IV, which includes the GAF scale. See 38 C.F.R. § 4.130. A GAF score from 61 to 70 reflects some mild symptoms, or some difficulty in social, occupational, or school functioning. In such cases, the Veteran is generally functioning pretty well, with some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect moderate symptoms. Scores from 41 to 50 reflect serious symptoms (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). While important in assessing the level of impairment caused by psychiatric illness, the GAF score is not dispositive of the level of impairment cause by such illness. Rather, it is considered in light of all of the evidence of record. See Brambley v. Principi, 17 Vet. App. 20, 26 (2003); Bowling v. Principi, 15 Vet. App. 1, 14 (2001). 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 the 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 his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated 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." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Facts While the Veteran was in service, following personal tragedy in 1991 (the death of her two youngest children in a motor vehicle accident while with the Veteran's ex-husband), the Veteran required treatment for recurrent major depression. She manifested psychomotor retardation, hypersomnia, isolation, and thoughts of suicide. She became unable to perform her military duties. She was transferred to the temporary disability list effective in March 1993. Despite treatment, including hospitalizations, she remained unable to perform her military duties, and was transferred to the retired list in 1996. The Veteran was hospitalized several times following service, including for suicide attempts or suicidal ideation. She was employed as a substitute teacher in 1999 and 2000, but left that employment due to her psychiatric symptoms. A statement from that employer is of record. The Board notes that the employer's statement also contains the name of another individual in addition to the Veteran's name, but provides information regarding the Veteran's initial date of employment and final date of employment which are consistent with the information in the Veteran's application for Social Security Administration (SSA) disability benefits. The Veteran's SSA records reflect that she was awarded SSA disability benefits beginning in January 2001, based on the findings that, despite more than 10 hospitalizations, the Veteran remained unable to regularly eat, bathe, dress, and perform activities of daily living. She remained fearful of leaving her home, and required the assistance of a home health aide. In May 2005, the Veteran sought an increased rating for her service-connected dysthymic disorder, for which a 50 percent evaluation was in effect. VA outpatient treatment records reflect that the Veteran reported period panic attacks in November 2005. In June 2005, the Veteran requested a statement indicating that she was cleared to return to school, as she wished to take and on-line course through Kaplan University for a paralegal course. In December 2005, the Veteran's treating VA psychiatrist noted that she had visited her son and his family in another state for 10 days. She remained in school, taking classes to be a paralegal. She reported that, when she was unable to sleep at night, she would log in to her online courses and do school work. The Veteran's mood was still dysphoric, but described as "improved." The Veteran did not have delusions or suicidal ideation. Her concentration was improved, although not up to a "good" level. The provider assigned a GAF score of 55. In March 2006, the Veteran missed her appointment because she remained unable to drive. In May 2006, the Veteran reported a sudden onset of alopecia. She was also having pruritis. The Veteran was provided with topical medications. The provider assigned a possible diagnosis of trichotillomania (compulsive hair pulling) was assigned, but a GAF of 55 was again assigned. The Veteran was seen by dermatology. The Veteran was provided with a specific shampoo and cortisone cream. A diagnosis of hair breakage due to rubbing with a component of seborrheic dermatitis was assigned by dermatology. Her hair began growing back out and her skin color evened out. Medications were also prescribed by the dermatology provider for acne and xerosis. The Veteran told the psychiatric provider that she disagreed with the possible diagnosis of trichotillomania, and stated she felt she had some type of fungal infection. In June 2006, the provider assigned a GAF score of 55, noting that the Veteran's mood appeared normal and her concentration was good. The Veteran was wearing "carefully matched" clothing and shoes. The Veteran was afforded VA examination in July 2006. She endorsed an increase in the symptoms of her dysthymic disorder. The examiner noted that the Veteran had not required hospitalization since April 2003, and that she denied significant side effects of medications. The Veteran reported that she did not have friends, but she did spend time with her sisters, and that she spent most of her time alone at home reading. On mental status evaluation, the Veteran appeared mildly anxious. Her speech was normal in content and clarity. Her thought content was logical. Her thought processes were sequential and goal-directed. She indicated that her anxiety had increased in severity since the recent death of a close friend who committed suicide. Additionally, the Veteran was in a minor motor vehicle accident when she attended the funeral. She reported being more fearful, with increased sleeping, decreased appetite, passive suicidal ideation, and increased worry about her depression becoming serious again. She reported that her last "bad episode" of depression occurred in April 2006 and lasted 10 to 15 days. She reported using deep breathing to reduce physical signs of anxiety at least one daily. She reported worry about her son's well-being, who had anger issues. Her score on the Beck Depression Inventory was consistent with severe depression. The examiner assigned a GAF score of 55. The examiner opined that the Veteran's functional impairments had moderately reduced her social and industrial capacity. In October 2006, when an annual physical was conducted, the provider asked a question about the Veteran's children and she began crying. In a February 2007 statement, the Veteran argued that, since she had been unable to work and had to take Xanax daily to maintain her ability to function, she was entitled to at least a 70 percent evaluation. She contended that the rating did not adequately address her history. The Veteran was seen for continued VA psychiatric treatment in February 2007. The Veteran reported that she had a fight with her son in October 2006. The Veteran reported that she had not seen her son, who was living with her, since that time. However, the Veteran was aware that her son was staying with one of her sisters, who had been diagnosed with breast cancer and was undergoing chemotherapy. The Veteran stated that she was accompanying her sister to the weekly chemotherapy. The Veteran reported that the need to accompany her sister was giving her a push to override her agoraphobia. The provider described the Veteran as more organized, with some improvement in mood. The provider noted that the Veteran had just completed a BA in legal studies, and that she had applied for graduate work in counseling. She had three papers due, and was feeling overwhelmed and unable to get started. She was not sleeping well, and complained of weight gain and fatigue. The provider noted that the sister's breast cancer diagnosis and associated chemotherapy was a significant stressor. The Veteran did not have suicidal thoughts. The provider assigned a GAF score of 50. In June 2007, the Veteran saw another provider. She reported that she was so depressed while in service that her weight went down to 100 pounds and she had to be hospitalized. She reported that she used coping mechanisms when panic episodes struck. The Veteran made little direct eye contact, and twisted her hair "nervously" during the interview. Her thoughts were disconnected at times, and her speech was circumstantial. She admitted that she had suicidal thoughts when she was having "an episode." It was not clear to the examiner as to whether the Veteran's practice of staying "very still" to avoid bad things happening during an "episode" was a function of a superstition or a somewhat delusional state. The examiner assigned a GAF score of 50. In June 2007, the Veteran reported that she had completed her bachelor's degree, and wanted to enter a master's degree program to be a counselor. The Veteran's psychiatrist completed a form stating that the Veteran had improved enough to be in school. In November 2007, the Veteran reported, at her individual therapy session, that she had run out of her medications. She was hypersomnolent, and reported that she could not function without her medications. Her uncle drove her to the appointment, as she did not feel capable of using public transportation on her own. She reported "leaden paralysis" and agoraphobia. When seen in December 2007, the Veteran reported feeling much better now that she was back on her medication. She had not been able to complete her graduate studies courses on time. The psychiatrist wrote a statement to the school on her behalf. The Veteran was described as "a little anxious," and the provider noted that the Veteran did not take off her coat or hat. The provider assigned a GAF score of 55, and described the Veteran as a little improved. She encouraged the Veteran to enroll in smoking cessation in January 2008. The Veteran did not report for smoking cessation classes in January 2008. In May 2008, the Veteran reported that she had travelled to Atlanta, Georgia, to take in-person "residency" testing with practice sessions on dealing with clients. She reported that she received an "A" in the course. She requested a medical statement from her psychiatrist indicating that she was medically cleared to continue in her program of study. The Veteran's 2008 annual physical revealed seborrheic dermatitis and xerosis, and topical treatments were continued. There is no record that the Veteran returned for psychiatric evaluation until January 2009, when she requested refills of medications. She reported at that time that her uncle had been quite ill and she was going back and forth between her house and his. When seen in March 2009, the Veteran was finishing her master's degree in counseling. She decided to work toward a doctorate. No GAF score was assigned. In May 2009, the Veteran enrolled in an exercise program and sought further dermatology consultation. When seen in September 2009, the Veteran had lost 5 pounds and was planning to start a practicum at "St. Patrick's Center." The Veteran underwent an annual physical in October 2009 wherein she reported that she had decreased her smoking to 10 cigarettes daily. In March 2010, the Veteran requested a refill of some of her psychotropic medications. She had not completed the scheduled practicum, and was changing the direction she planned for her doctoral studies. She reported that, although she enjoyed the course work, she had trouble keeping a formal schedule. She reported having anxiety at unexpected times. She requested a change in her medications, as the medications were no longer effective. In June 2010, the Veteran expressed doubts about the part of the doctoral program that would require her to appear in person at one of two locations. In September 2010 through November 2010, the Veteran appeared for several medical appointments related to difficulty determining whether her laboratory tests were consistent with Hepatitis C; that diagnosis was ultimately disproved. The Veteran's psychotropic medications were refilled without the Veteran being seen, and reevaluation was scheduled for January 2011. In June 2010, the Veteran reported that she got behind a semester at school because of her aunt's death in the fall. She reported more success leaving her home. She planned to attend her son's upcoming wedding. She was planning doctoral research focusing on parenting problems of incarcerated mothers. On VA examination in April 2011, the Veteran reported that she had a bachelor's degree in health care administration and one in legal studies. She had a master's degree in management and had started a Ph.D. program in mental health counseling. She had been unable to work 26 straight days at her last job, which was in 2001. She reported being offered a job at B.C.J.H., but that she declined because she felt she would not be able to perform the job. The Veteran displayed appropriate personal hygiene and grooming. She stated that it was "humiliating" to go through the VA disability evaluation process. The Veteran's memory and concentration were within normal limits. The Veteran was able to perform the serial 3 task at a moderate pace with no errors. She was able to interpret a proverb and describe similarities and differences. The Veteran did not perform household chores or cook. She stated that her sister helped her. She did not drive. The Veteran's scores on the Beck Depression Inventory and the Beck anxiety Inventory showed high levels of depression and anxiety. The Veteran reported minimal social contact with others, with the exception of her sister, with whom she would reside when she had episodes of increased anxiety and thoughts of self-harm. She reported that she was having such episodes two to three times per month lasting about 10 days. The severity of the episodes prevented her from reading. The examiner concluded that the Veteran had marked functional impairment due to the unpredictable nature of her depressive episodes. The examiner concluded that the Veteran lacked the resilience and adaptability to manage her psychiatric symptoms. The examiner assigned a GAF score of 40 for the Veteran's depression and as GAF score of 50 for anxiety. In February 2012, the Veteran called to request that certain psychiatric medications be restarted. She had run out of medications, and the medications could not be refilled. The Veteran had required several medical appointments related to a recurrent breast abscess. The Veteran was evaluated by her psychiatrist in April 2012. She reported progress on her doctoral dissertation. She related that recent interactions with surgical personnel (related to a possible cancer diagnosis) were very upsetting. She felt the physicians did not take her feelings into account. She said she continued to have intrusive recollections of her children's deaths. She had trouble getting to sleep and trouble staying asleep. The provider did not assign a GAF score. The Veteran returned for re-evaluation in June 2012. The medication was helping the Veteran sleep, and she was managing "adequately" with continued anxiety and panic attacks. The provider assigned a GAF score of 60. The Veteran was further evaluated in July 2012. At that time, she was described as having an improved mood and calmer affect. She reported fewer episodes of intrusive thoughts about the deaths of her children. She reported no imminent risk of harming herself or others. The Veteran reported that she wanted to help others and move on rather than continuing to dwell on the deaths of her children. In November 2012, the Veteran was continuing to work on her doctoral dissertation, and continuing to attempt to obtain a more definitive diagnosis regarding a draining breast abscess. In February 2013, she continued to work on her doctoral dissertation, a study of parenting readjustment for incarcerated women with children. In May 2013, the Veteran was recovering from surgical treatment of a draining breast abscess. She reported melancholic symptoms, oversleeping, and agoraphobia. She again sought a medical statement as required for continued loans for academic program. In late May 2013, the Veteran placed a call to the Suicide Prevention Hotline requesting additional individual therapy. On VA examination conducted in April 2013, the examiner noted that the Veteran reported that she was close to a sister and had several friends. She employed a home health aide to assist her 20 hours per week. She explained reported that she was able to participate in online studies because she did not have to leave her house or be around people. She stated that she would be able to get a job, but was not sure she could keep a job, because her psychiatric disabilities would prevent her from going to work every day. She said that she did not like to leave her house because she never knew when she would have an anxiety attack. She added that she had had an anxiety attack the previous week, when out to lunch with a friend. She described increased heart rate, sweating, feeling a need to escape. She also described depressive episodes occurring every few months and lasting five to seven days. The examiner stated that the Veteran's mood symptoms of anxiety and depression had "neither improved nor significantly worsened" since the 2011 VA examination. The examiner who conducted the 2013 examination concluded that the Veteran's mood disorder and anxiety resulted in mild to moderate symptoms and did not preclude employment. The examiner opined that the Veteran would require an occupation setting that involved more isolated work, consistent with the Veteran's preferences, but that the Veteran could maintain gainful employment if her preferences were taken into account. The examiner further concluded that employment could improve the Veteran's overall functioning. The examiner assigned a GAF score of 55. Analysis At the outset, the Board notes that the Veteran's symptoms have remained relatively stable throughout the more than eight years since the Veteran submitted her claim in 2005. For example, the Veteran began participating in on-line university course work in June 2005. In May 2013, after attaining two bachelor degrees and a master's degree, the Veteran was continuing to work through on-line education to obtain a Ph.D.. On VA examination conducted in July 2006, the Veteran reported periodic episodes of panic or depression, lasting 10 to 15 days, with her last such episode of depression occurring about three months prior to the examination. (The examiner did not note the frequency of panic attacks.) In 2013, the Veteran reported periodic panic attacks and attacks of depression, with her last such episode of depression occurring about three months prior to the examination. The briefer panic attacks occurred about weekly. The examiner who conducted VA examination in 2013 specifically noted that the Veteran's symptoms of her psychiatric disorders had "neither improved nor significantly worsened" since the 2011 VA examination. The evidence throughout the pendency of the appeal reflects that the Veteran maintained her personal appearance hygiene. All examiners agreed that the Veteran was oriented to time, person and place throughout the appeal. No examiner noted spatial disorientation or inability to remember her name of the names of close relative. Thus, the severity of these symptoms remained generally stable. In 2005, the provider noted that the Veteran's ability to concentrate was impaired. In 2013, the Veteran reported difficulty concentrating. The Veteran's ability to concentrate fluctuated with her mood, and was decreased during periods of depression or panic attacks. The Veteran reported on at least one occasion that she could not even read during a period of increased symptoms. Nevertheless, the Veteran completed significant academic course work during the pendency of the appeal, with some progress each year, although the specific number of credit hours completed each year varied. Thus, the Veteran's ability to concentrate, although fluctuating, remained sufficient intact to allow the Veteran to complete a bachelor's degree and a master's degree during the pendency of the appeal and to begin work on a doctoral dissertation. The Veteran consistently denied that she had a plan to commit suicide, but she consistently, throughout the pendency of the appeal, from time to time, reported passive thoughts of death, such as thoughts of joining her children. The providers consistently determined that the Veteran did not pose a danger to herself or others, and could continue with outpatient treatment. Thus, this symptom remained stable. The Veteran did not describe obsessional rituals, but she did describe, throughout the pendency of the appeal, using relaxations and other coping mechanisms or techniques, such as telling herself not to panic, when she had panic attacks. Thus, this symptom remained stable. The examiners and providers who treated the Veteran uniformly concluded that she had near-continuous depression and anxiety or panic attacks. Thus, these symptoms too remained stable. The Veteran occasionally manifested additional symptoms. One provider, who evaluated the Veteran in June 2007, described the Veteran's speech as circumstantial and disconnected; no other provider made a similar observation. The provider who treated the Veteran in February 2007 she became so angry at her son that she thought she was going to hit him. No other provider noted an episode or anger or uncontrolled anger. There is also no indication that the Veteran has actually become violent. In 2006, the Veteran lost the hair on several patches of her scalp. The psychiatric provider thought the Veteran might have hair loss related to her psychiatric disorders, as a result of anxiety and assigned a possible diagnosis of trichotillomania (compulsive hair pulling). However, after the Veteran sought and received dermatology treatment for sebhorreic dermatitis and xerosis, her hair loss symptomatology resolved and did not recur. Thus, the symptoms as described by the examiners is best described as consistent with types of symptoms and severity of symptoms described in the criteria for a 50 percent evaluation, which include, but are not limited to, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. In this case, the Veteran demonstrated circumstantial speech at least once. The Veteran had disturbances of mood and panic attacks. The Veteran had impaired concentration, but not difficulty understanding complex commands, impaired judgment, or impaired abstract thinking. Crucially, the presence or absence of certain symptoms is not necessarily determinative. These symptoms must also cause the occupational and social impairment in the referenced areas. See Vazquez-Claudio, supra. Here, throughout the appeal, the Veteran demonstrated close relationships with her family, especially her sisters. She accompanied a sister to chemotherapy. She lived near one of her sisters. She was on good terms with an uncle, who provided transportation for the Veteran to at least one of her medical appointments. It appears, from the 2009 clinical records, that the Veteran assisted the uncle when he was ill in late 2008 and early 2009. The Veteran reported that a sister would assist her with household chores and that she would stay with a sister when her depression became severe. This evidence establishes that the Veteran was able to maintain family relationships. The clinical evidence establishes that the Veteran was able to communicate effectively with health care providers and to establish and maintain relationships as necessary to obtain health care. The evidence is inconsistent with the criteria for a 70 percent evaluation, "inability to establish and maintain effective relationships." The providers and examiners who evaluated the Veteran throughout the appeal rendered generally similar conclusions about her functioning and ability to work. The examiner who conducted the July 2006 VA examination rendered an overall GAF score of 55, and opined that the service-connected disability "moderately impaired her social and industrial capacity." The provider who treated the Veteran assigned GAF scores ranging from 50 (February 2007, June 2007) to 55 (December 2005, May 2006) to 60 (April 2012). However, although all examiners and providers described the Veteran's symptoms relatively similarly, the Board notes that the examiner who conducted the April 2011 VA examination assigned a GAF score of 40 for the Veteran's depression and a GAF score of 50 for the Veteran's anxiety. The examiner also concluded that the Veteran's symptoms were both severe and unpredictable. Consideration has been given as to whether the symptoms of the Veteran's psychiatric disorder were more severe at the time of the April 2011 VA examination than at other examinations or outpatient treatment visits. See Fenderson. However, for the following, the Board finds that the record does not support that conclusion. The GAF score and finding of unemployability is simply not supported by the records contemporaneous to that examination. First, when she was seen in June 2011, the Veteran explained that she had been busy assisting with care of a relative who died. However, she reported to the April 2011 VA examiner that she was essentially unable to leave her home, and that her limited social interactions were with her sister. If the Veteran did assist with her aunt's care, as reported in June 2011, that would have required her to leave her home, and performing care of a relative, as described in the June 2011 VA outpatient visit, would require maintaining family relationships that the Veteran did not describe in her April 2011 VA examination. Next, the Veteran reported to the April 2011 examiner that she was unable to even read due to severe depression. She similarly stated that she was "too tired to do anything" due to her depression and disturbed sleep. However, the record demonstrates that the Veteran completed academic course work steadily, except during a period when the veteran was reportedly assisting in the care of an ill family member, which would have required her to read during the period prior to April 2011 except for limited episodes. The Veteran's report that she was "too tired to do anything" is not objectively consistent with her explanation to her treating provider in June 2011 that she had to take incompletes in her fall courses because she was assisting in the care of her aunt. The Board finds that the report of the treating provider (the June 2011 report) is more probative and persuasive, since the provider was clearly familiar with the Veteran's family and academic circumstances. The treating provider provides a more accurate reflection of the Veteran's circumstances than the April 2011 VA examination report. Although the VA examiner concluded, in April 2011, that the Veteran's depression was so severe as to preclude employment, the April 2011 VA examination report fails to discuss the Veteran's family relationships accurately, and does not reflect the Veteran's progress toward her doctoral dissertation, which was a primary focus of the June 2011 VA outpatient treatment evaluation. The Board further notes that this factual determination is consistent with the report of the 2013 examiner, who assigned a GAF score of 55, considerably higher than the GAF score of 40 assigned for the Veteran's depression at the time of the April 2011 evaluation, even though the examiner who conducted the 2013 VA examination determined that the Veteran had not improved or worsened, that is, were essentially unchanged. There is also no evidence the Veteran has required hospitalization during the pendency of this appeal, in contrast to her frequent hospitalizations while in service and proximate to service separation. The record establishes that, despite her agoraphobia, the Veteran is able to assist family members, and goes out with family and friends. She has appeared for more than 50 VA appointments over the pendency of the appeal. The record further establishes that the Veteran traveled to other states at least twice. In addition, the Veteran has completed on-line academic courses. While the completion of on-line academic courses does not reduce the severity of symptoms due to agoraphobia, suicidal ideation, or depression, it does establish that such symptoms do not preclude work-like achievements to the extent that such symptoms would have in the absence of technology now available and in the absence of the Veteran's demonstrated ability to use that technology. The Board acknowledges that the award of SSA benefits effective in January was based primarily on the Veteran's service-connected disability. However, more than 10 years has elapsed since the SSA decision was issued. At the time of the SSA decision, the Veteran had required several hospitalizations for her psychiatric disability; however, she has not required hospitalization during the pendency of this appeal. The Board acknowledges the SSA decision as to the severity of the Veteran's service-connected psychiatric disability in 2001, but the Board decision for the pendency of this appeal is not bound by that decision. The Board has considered whether the Veteran's service-connected psychiatric disability increased in severity in the year prior to the 2005 claim. However, the Veteran has been very specific in stating that the severity of her symptoms increased in 2005, when a close friend died. See report of 2006 VA examination. Since the Veteran herself has stated that there was no increase in symptoms prior to 2005, further discussion of a staged rating prior to the May 2005 claim for an increased rating is not required. 38 C.F.R. § 3.400(o); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds that the Veteran's demonstrated educational achievements, her continued family relationships, and the reports of her VA care overall, establish that impairment due to her service-connected psychiatric disability during the pendency of this appeal is most consistent with a 50 percent evaluation, and that a higher evaluation is not warranted for any period during the pendency of this appeal. Extraschedular consideration An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court of Appeals for Veterans Claims set forth a three-step analysis the Board must follow in determining whether referral for an extraschedular disability rating is warranted under 38 C.F.R. § 3.321(b). The Court held that, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability (step one in the Thun analysis). If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Then, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the AOJ or Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Id. In this case, as the Board has discussed in detail above, the rating schedule addresses the Veteran's symptoms, and provides for a higher rating if the symptoms warrant a higher rating. There is no evidence of exceptional or unusual circumstances, such as frequent hospitalization, to suggest that the Veteran is not adequately compensated by the regular rating schedule. The evidence does reflect that the Veteran has not been employed during the pendency of this appeal. However, as she remained able to engage in significant academic achievement, such is considered a work-like activity, such that the facts do not establish such marked interference with employment as to meet the criteria for referral for a higher evaluation on an extraschedular basis. The possibility of extraschedular evaluation was considered by the RO, as noted by inclusion of the provisions of 38 C.F.R. § 3.321(b) in the SOCs and supplemental SOCs issued in this case. The Board agrees with the RO's determination. 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, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Referral for extraschedular consideration is not required. 2. Claim for TDIU VA regulations provide that when a Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. In addition to the foregoing, there must be evidence that the disabled person is unable to secure or follow a substantially gainful occupation. Id. Marginal employment is not considered substantially gainful employment. Id. A total disability rating may also be assigned pursuant to the procedures set forth in 38 C.F.R. § 4.16(b) for Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). The Veteran has been awarded service connection for two disabilities, a psychiatric disability and disability residual to a cyst excision, left outer ear. As discussed above, a 50 percent evaluation is in effect for service-connected dysthymia; the cyst excision is evaluated as noncompensable. The Veteran does not have a disability rated at 60 percent or higher, and does not have a combined disability rating of 70 percent. The Veteran does not meet the minimum requirements necessary for a grant of TDIU benefits on a schedular basis under 38 C.F.R. § 4.16(a). Consideration has also been given as to whether the question of entitlement to the benefit on an extraschedular basis, under 38 C.F.R. § 4.16(b), should be referred to the Director of the Compensation and Pension Service. The Board notes that entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). The issue of entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b) has been discussed above. This discussion is limited to the criteria for referral under 38 C.F.R. § 4.16(b). A determination that 38 C.F.R. § 4.16(b) warrant referral for extraschedular consideration requires that a particular Veteran is currently rendered unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. See VAOPGCPREC 6-96. The Board itself cannot authorize an extraschedular award of TDIU in the first instance. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although Bagwell and Floyd only deal with ratings under § 3.321(b)(1), the analysis in those cases is analogous to TDIU ratings under § 4.16(b) as well, in view of that section's similar requirement of referral to the Director of VA's Compensation and Pension Service, in addition to Court precedents requiring consideration of § 4.16(b) when the issue is raised in an increased-rating case. See Stanton v. Brown, 5 Vet. App. 563, 570 (1993); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The determination as to whether an award of TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326 (1991). As noted above, the Veteran's history reflects that she worked as a pharmacy technician in service. After service, she obtained employment as a substitute teacher. During the pendency of this appeal, the Veteran completed courses to qualify as a paralegal. Then, she completed a degree in legal studies. Then, she completed a master's degree, and is now working on a doctoral dissertation. There is one opinion that the Veteran's service-connected disability is so severe and unpredictable as to preclude employment. However, as noted above, that opinion, rendered in 2011, did not discuss the Veteran's academic achievements. There are two opinions, one rendered in 2006 and one rendered in 2013, that the Veteran's service-connected disability does not preclude substantially gainful employment. The preponderance of the medical evidence establishes that the Veteran's service-connected disability does not preclude gainful employment. The Veteran does not meet the criteria for referral for consideration of extraschedular entitlement to TDIU. The appeal for TDIU is denied. ORDER The appeal for a disability rating in excess of 50 percent for dysthymic disorder is denied. The appeal for TDIU is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs