Citation Nr: 1336874 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 05-41 485 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa THE ISSUE Entitlement to a higher initial rating for service-connected dysthymia, currently evaluated as 10 percent disabling. ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to October 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2006 decision by the RO in Des Moines, Iowa which granted service connection for dysthymia and assigned an initial rating of 10 percent as of January 11, 2005. The Veteran appealed for a higher rating and an earlier effective date for the award of service connection. In a May 2009 decision, the Board affirmed the RO's denial of the benefits on appeal. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In July 2010, the Court vacated that Board decision with respect to the issues of (1) entitlement to an effective date earlier than January 11, 2005 for the award of service connection for dysthymia, and (2) entitlement to an initial rating in excess of 10 percent for dysthymia; and remanded the case to the Board for readjudication in compliance with a June 2010 Joint Motion. In a November 2010 decision, the Board granted an earlier effective date of June 8, 2001 for the award of service connection for dysthymia, and again denied an increase in the 10 percent rating for dysthymia. In a June 2012 Memorandum Decision, the Court, vacated that portion of the Board's November 2010 decision that denied a higher rating for dysthymia, and remanded this issue to the Board. The Court also determined that the appellant had abandoned his appeal as to the issue of entitlement to an earlier effective date for the award of service connection for dysthymia. Therefore, this issue is no longer in appellate status. The case was subsequently returned to the Board, and in October 2012, the Board remanded this case to the RO for additional evidentiary development. The case was subsequently returned to the Board. The Veteran's former representative before VA, an attorney, sent a letter to the Board in February 2013, advising that she was withdrawing as the attorney of record for the Veteran. However, the Veteran's appeal had already been certified to the Board prior to receipt of this letter, and there was no indication that the Veteran had revoked the attorney's authority to act on his behalf. Therefore, in March 2013, the Board notified the attorney of these circumstances and allowed the opportunity to submit a proper motion to withdraw from VA representation in accordance with 38 C.F.R. § 20.608. A copy of this letter was also sent to the Veteran. In response, in April 2013, the attorney submitted a motion to withdraw from VA representation, showing good cause for her withdrawal, and notified the Veteran. The Board finds that she has properly withdrawn from representation of the Veteran. In an August 2013 letter to the Veteran, the Board advised him that his former attorney had withdrawn as his representative, and that he could appoint a new representative or represent himself. He was told that if he did not respond within 30 days, it would be assumed that he wanted to represent himself. As the Veteran has not responded to this letter, or appointed a new representative, VA will assume that he wishes to represent himself in this appeal and will proceed with adjudication. FINDINGS OF FACT 1. During the period from June 26, 2007 to September 21, 2007, the Veteran's dysthymia caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. During the periods prior to June 26, 2007 and after September 21, 2007, the Veteran's dysthymia, characterized by depressed mood and sleep disturbance, and is shown to be mild or transient in degree. During these periods, dysthymia is not shown to cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSIONS OF LAW 1. During the period from June 26, 2007 to September 21, 2007, the criteria are met for an initial 30 percent rating, and no higher, for service-connected dysthymia. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9433. 2. During the periods prior to June 26, 2007 and after September 21, 2007, the criteria are not met for an initial rating higher than 10 percent for service-connected dysthymia. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9433. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; 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). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, letters were sent to the Veteran in December 2005 and January 2006 regarding his initial service connection claim, prior to the July 2006 rating decision on appeal. In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). The appellant has not advanced any such arguments. The provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved. And this has been done; the Veteran has received both an SOC and supplemental statements of the case, most recently in January 2013, discussing the downstream disability rating element of his claim, citing the applicable statutes and regulations, and discussing the reasons and bases for assigning the initial rating for his service-connected dysthymia. Moreover, additional notice was sent in letters dated in March 2006, August 2006, and June 2008. Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the appellant what was necessary to substantiate his claim, and as such, that he had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication was not affected. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). Here, VA and private medical treatment records have been associated with the claims file. The appellant was afforded multiple VA medical examinations in October 2000, May 2002, May 2006, October 2007, August 2009, December 2012, and January 2013. A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). These examinations were conducted by medical professionals, and the associated reports reflect review of the appellant's prior medical history. The examinations included a report of the symptoms for dysthymia and demonstrated objective evaluations. The examiners were able to assess and record the clinical status of the appellant's service-connected dysthymia. Pursuant to the Board's remand in October 2012, additional VA examinations were conducted in December 2012 and January 2013. The Board finds that the December 2012 and January 2013 examination reports were each sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings. In addition, it is not shown that the examinations were in any way incorrectly conducted. Further, the VA examination reports addressed the applicable rating criteria. As a result, the Board finds that additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. § 3.326; 38 C.F.R. § 3.327; Green v. Derwinski, 1 Vet. App. 121 (1991). The Board concludes that the appellant was afforded adequate examinations of his psychiatric disorder, and the December 2012 and January 2013 medical opinions provide a complete rationale, with review of the medical evidence and reconciling of the medical findings throughout the appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board further finds that the RO has substantially complied with its October 2012 remand orders. In this regard, the Board directed that a VA examination be performed and that any additional treatment records be obtained. VA examinations were conducted in December 2012 and January 2013. In October 2012, the Veteran's former representative stated that she did not have anything else to submit. The RO wrote to the Veteran in November 2012 and asked him to identify any private treatment he had received since January 2008. The Veteran did not respond to this letter, and has not identified any recent treatment for dysthymia. On VA examination in December 2012, he stated that he has not received any treatment for dysthymia since 2006. Therefore, the Board finds that no further development is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). All relevant facts with respect to the higher rating claim addressed in the decision below have been properly developed. Under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). VA has complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Analysis The Veteran contends that his service-connected dysthymia is more disabling than currently evaluated. Although he previously underwent an examination for VA purposes in August 2009, in the above-cited Memorandum Decision, the Court challenged the adequacy of that VA examination on the basis that the examining physician did not provide a rationale or explanation for the opinion and instead proffered only conclusory statements regarding the impact on occupational and daily activities instead of providing actual analytical support. This case was remanded in October 2012 primarily for a more recent and adequate VA examination to assess the current level of severity of his dysthymia, and to obtain ongoing treatment records. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3. When rating a service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). The Veteran's claim for a higher rating for his dysthymia arises from his disagreement with the initial rating assigned for this disability following the granting of service connection. Where, as here, the Veteran has expressed dissatisfaction with the assignment of an initial rating, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). The Veteran's dysthymia has been rated as 10 percent disabling throughout the rating period on appeal. His dysthymia is rated under the General Rating Formula for Mental Disorders, under 38 C.F.R. § 4.130, Diagnostic Code 9433. The Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) provides guidance for the nomenclature employed within 38 C.F.R. § 4.130. When evaluating a mental disorder, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Under the General Rating Formula, a 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9433 (2012). A 30 percent rating is warranted for dysthymia where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). In order to obtain the next-higher 50 percent rating, the evidence must show 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. Id. An even higher 70 percent rating requires 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); and inability to establish and maintain effective relationships. Id. The maximum 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also 38 C.F.R. § 4.130. In determining whether the Veteran meets the criteria for an increased rating, the Board must consider whether the Veteran has deficiencies in most of the following areas: work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11 (2001). In evaluating the evidence, the Board also has considered various Global Assessment of Functioning (GAF) scores contained in the DSM-IV, which clinicians have assigned. A GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence bearing on occupational and social impairment. See generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95. The higher the score, the higher the overall functioning of the individual. Pursuant to DSM-IV, a GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. A GAF score between 41 and 50 is indicative of 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). A GAF score between 51 and 60 is indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g. few friends, conflicts with co-workers). A score of 61-70 illustrates 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. GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). Id. The Veteran's DD Form 214 reflects that he had active service from December 1968 to October 1969, and had no foreign or sea service. There is no evidence of post-service treatment for a psychiatric disorder until 2000. VA outpatient treatment records dated in 2000 reflect treatment for dysthymia. A May 2000 VA urgent care note reflects that the Veteran complained of depression for over a year. He said the problem related back to a car accident which left him with chronic pain for which he took no medication. He previously did custom woodwork and worked 40 hours per week but now was down to 20 hours per week. He was referred for psychiatric consultation. Another May 2000 VA urgent care note dated later that day reflects that the Veteran complained of depression for the past 15 years, and said that all of his physical problems were crushing him. He reported that he had suffered cervical and lumbar spine injuries with collapsed vertebrae in two motor vehicle accidents. He had difficulty sleeping, awakening about every two hours because of the pain, and he was fatigued during the day. He was isolative, and denied suicidal or homicidal ideation. He said he smoked marijuana two times daily to control his pain and to relax. He reported that he was self-employed as a custom furniture maker, but had not worked in the past 10 to 15 years because of his physical condition and because there was no market for his work. On mental status examination, he was casually dressed, looked healthy, was cooperative, pleasant and friendly. He was reading a book. He had no unusual mannerisms. There was no psychomotor slowing but he did move carefully, attributable to his pain. His mood was depressed and his affect was bright at times but still constricted. His speech was spontaneous and goal-directed. There was no evidence of any delusions or hallucinations, and no suicidal or homicidal ideation. He was alert and oriented. His judgment and insight were good. The Axis I diagnoses were depressive disorder secondary to medical condition, dysthymia, chronic pain syndrome, and cannabis abuse. The GAF was 65. Abstinence from cannabis was recommended. VA mental health clinic treatment notes dated from June to September 2000 reflect treatment for dysthymic disorder. In June 2000, the physician noted that the Veteran was fairly well groomed, was able to communicate spontaneously without speech impediment or association disorder, his affect was appropriate and his mood was euthymic. His thoughts were linear, often logical, and were mostly focused on his current problems. He was assertive, outgoing, and not obsessive, delusional, experiencing auditory hallucinations, suicidal or a danger to others. His attention, executive functions and working memory were adequate, as were insight and judgment. His depression had affected his concentration, energy, sleep, weight loss, and decreased sex drive. The Veteran reported that his depression had never been worse. The treating physician diagnosed dysthymic disorder, with no history of a major depression and no history of anxiety. He indicated that the current GAF was "m38" and the highest GAF in the last 12 months was "a48." Similar findings were shown from July to September 2000. On VA psychiatric examination in October 2000, the examiner indicated that the Veteran was neatly groomed and casually dressed, he was cooperative, his speech was of normal tone, volume, and pacing. His mood was euthymic and his affect was appropriate to content of thought. His thought content revealed no delusions or hallucinations. His thought process was logical, and his communication and was very effective and articulate. There was no circumstantiality, no flight of ideas or looseness of associations. There was no pressure of speech. Sensorium was clear and he was oriented to time, person, place and situation. He attended actively to the interview. Memory, both recent and remote, was intact. He was not a danger to self or others, and there was no impairment of executive function. He had insight into his difficulties. The Axis I diagnosis was adjustment disorder with depressed mood, chronic. The GAF was 60 at the lowest point during the past year, with moderate symptoms, but currently was 85, indicating good functioning in a wide range of activities including social and vocational. The examiner added that a combination of things had improved his overall functioning from the earlier part of this year; he had worked to cope more effectively, and was currently taking medication to relieve his depressive symptoms. The examiner stated that earlier this year, these symptoms did cause social and occupational impairment, but at the present time, the adjustment disorder with depressed mood appeared to be having "little if any effect on his social and occupational functioning." A June 2001 VA outpatient treatment record reflects that the Veteran had a history of major depression which was currently "nicely controlled." It was noted that he was taking Risperidone and Mirtazapine. On June 8, 2001, the Veteran submitted an informal claim for service connection for posttraumatic stress disorder (PTSD). The Veteran stated: "I am requesting evaluation for service connection for PTSD. I was treated at the Omaha VA Hospital in 2000. I have no treatment records prior to that date. I have just dealt with the problems in incurred in the service and since discharge." In a prior November 2010 decision, the Board found that the Veteran's June 8, 2001 claim constituted an informal claim for an acquired psychiatric disorder, to include dysthymia. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). A May 2002 VA examination included a review of the claims file. The Veteran reported that his condition had remained essentially unchanged since he was last seen in October 2000. He was no longer seen at the VA mental health clinic because he felt that the medication was not working. He reported that he did not need psychotherapy because his work was his therapy. He was referring specifically to his being a dedicated woodworker, and said he had been a woodworker for 30 years. He believed his depression was from a combination of chronic physical pain and problems and the inability to sell his woodwork. He felt that vocational rehabilitation would not work for him because the only job he felt he could do was woodwork, and he was physically unable to do that. The Veteran lived with his mother on land that his family homesteaded. He had a shop there and did some woodwork there. He took care of his mother and she provided a home. The Veteran reported daily use of marijuana which he felt helped with his pain. A mental status examination shows that the Veteran was appropriately dressed and groomed. He sat quietly during the interview and was spontaneous. He had appropriate eye contact and was courteous. He showed no signs of suspiciousness and no unusual motor mannerisms. His mood was frustrated and dissatisfied. His affect was appropriate to content of thought. His speech was of normal tone, volume, and pacing. Thought processes included moderate circumstantiality. There was no looseness of association or flight of ideas. There were no delusions, hallucinations, or paranoia. The Veteran was oriented to time, person, place, and situation. Sensorium was clear. Short-term and long-term memory were intact. He had appropriate judgment. The VA examiner stated that the Veteran's mood disorder was not sufficient to render him permanently and totally unemployable, but it did contribute to some extent to his unemployability. The Veteran was diagnosed with an adjustment disorder with depressed mood, and cannabis abuse. He had a GAF score of 70 indicating a mild, dysphoric mood. The examiner said that the Veteran's response to his physical problems and not being able to sell his woodwork had caused an adjustment disorder with depressed mood. In May 2006, the Veteran was seen at the VA mental health clinic. At that time, the Veteran reported that he had been depressed for 20 years and was bothered by his tinnitus. His sleep was easily interrupted and restless. Any noise awakened him and he lived in an urban area. His mood was depressed. He had decreased interest and energy. He was listless with decreased attention. His appetite varied, but his weight had remained stable. He denied suicidal ideation. He related that he was last employed in 1992 in a woodworking shop and was currently doing yard work and car maintenance. A mental status examination shows that the Veteran was casually dressed and healthy looking. He appeared his stated age. He was very soft spoken, but sarcastic. He believed that people did not listen to him and walked away from him without giving answers. He placed blame on others. His speech was spontaneous, but low in volume, average pace, and reached goal idea. His affect was constricted and his mood was dysthymic and angry. He had no delusions, hallucinations, or homicidal or suicidal ideation. He was alert and oriented. His judgment and insight were fair. The Veteran was diagnosed with dysthymia, and the GAF score was 65. The Veteran was offered group therapy and primary care in the mental health clinic, but he declined. The Veteran was afforded a VA psychiatric compensation examination in May 2006. The claims file was reviewed. The Veteran again reported that his tinnitus interrupted his sleep and he also reported that he did not attend group functions because the loudness of the ringing was so bad that he could not understand others and this made him depressed. The Veteran reported having no sex drive and that he was not suicidal or homicidal. His appearance was clean and he was neatly groomed. His psychomotor activity was unremarkable. His speech was unremarkable and spontaneous. His attitude was cooperative, friendly, relaxed, and attentive. His mood was depressed. He was able to do serial 7's, but could not spell a word forward and backward. He was oriented times three. His thought process and content were unremarkable, judgment was intact, intelligence was average, and insight was intact. He had sleep impairment that interfered with his daily activities. There were no hallucinations or inappropriate behaviors. The Veteran was able to interpret proverbs. He did not have obsessive/ritualistic behavior or panic attacks. His impulse control was good and there were no episodes of violence. There were no suicidal or homicidal thoughts, ideation, plans, or intent. It was noted that the Veteran could not maintain his hygiene; however, he was neatly groomed on the examination. His remote and immediate memory was normal and his recent memory was mildly impaired. His activities of daily living were not impaired. The Veteran was competent to handle his financial affairs. The Veteran was not employed. He related that he had not been employed since a car accident in which a disc in his spine was crushed. He also suffered an additional car accident which caused whiplash. The examiner noted that the Veteran did not claim that he was unemployable due to his mental disorder. The diagnosis was dysthymia that was permanently aggravated by tinnitus, and cannabis abuse. His GAF was 75. The examiner stated that the GAF for the cannabis abuse was 65 denoting mild impairment, and that this condition was not secondary to or aggravated by the dysthymia. VA treatment records show that the Veteran had an exacerbation of depressive symptoms in mid-2007. A June 26, 2007 depression screen associated with a nursing intake note shows that the Veteran reported having little interest or pleasure in doing things more than half the days, and he reported feeling down, depressed, or hopeless several days, indicating a positive screen. As part of a PTSD screen, the Veteran indicated that he felt numb or detached from others, activities or his surroundings. Another June 2007 note shows that the Veteran had difficulty with being motivated, he had a lack of energy, and he had difficulty sleeping. He was referred for a mental health consultation. A July 2007 depression care consult note indicates an increase in depressive symptoms over the past two weeks. These symptoms made it very difficult to work, to take care of things at home, and to get along with others. The Veteran endorsed symptoms of major depressive disorder at that time including feeling down most days, taking little pleasure or interest except for "just surviving", trouble sleeping, no energy, feeling like a failure, and trouble concentrating. The Veteran was diagnosed with major depressive disorder, single, recurrent. It was noted that the Veteran's depression had been exacerbated by a recent May 2007 flood at the Veteran's art studio. This had reminded him of a past flood loss of his home in 1984 which had financially ruined him. Antidepressant medication was recommended. Later in July 2007, a physician's assistant diagnosed depression, and a trial of Wellbutrin was prescribed. A September 2007 depression care note shows that the Veteran had decreased energy, poor sleep, and depressed mood on half of the days. Citalopram was prescribed. On September 21, 2007 the Veteran said he had stopped taking Citalopram, as he felt he did not need it. His symptoms included lack of restful sleep, little energy, and lack of concentration. He denied any depression or thoughts to harm himself. On VA compensation examination in October 2007, the claims file was reviewed. With regard to employment, the Veteran related that he had held jobs as a cook and working on cars, building and renovating them. Currently, the Veteran was divorced and living with his mother. He was providing assistance to his mother who was elderly. He spent half the year with her and half the year in Arizona. He described having friends who visited him one to two times per week. There was no history of suicide attempts or of violence/assaultiveness. A mental status examination was completed. The Veteran's appearance was clean and he was neatly groomed and appropriately dressed. His psychomotor activity was unremarkable. His speech was spontaneous, clear, and coherent. His attitude was cooperative, friendly, relaxed, and attentive. His affect was appropriate. His mood was dysphoric. The Veteran was able to do serial 7's and was also able to spell a word forward and backward. He was oriented times three. His thought process and content were unremarkable, judgment was intact, intelligence was above average, and insight was intact. He had sleep impairment that interfered with his daily activities. There were no hallucinations, delusions, or inappropriate behaviors. The Veteran was able to interpret proverbs. He did not have obsessive/ritualistic behavior or panic attacks. His impulse control was good and there were no episodes of violence. There were no suicidal or homicidal thoughts. He was able to maintain his hygiene. His remote, immediate, and recent memory were all normal. The Veteran was socially appropriate throughout the interview and he actively participated. He reported continued depressive symptoms, but did not appear depressed during the interview. It was noted that he was unemployed due to physical problems. The Veteran was competent to handle his financial affairs. The diagnosis was dysthymia. His GAF was 73. The examiner stated that there was not total occupational and social impairment due to the mental disorder. In addition, the mental disorder did not result in deficiencies in judgment, thinking, family relations, work, mood or school. There was no reduced reliability and productivity due to the mental disorder. There was not an occasional decrease in work efficiency and there were no intermittent periods of an inability to perform occupational tasks due to the mental disorder. Rather, the mental disorder resulted in transient or mild decrease or work efficiency and the ability to perform occupational tasks only during periods of significant stress. A January 2008 VA primary care note reflects that the Veteran denied any depression symptoms, and his sleep and energy levels were OK. An August 2009 VA examination included a review of the claims file. Findings from May 2002, May 2006, and October 2007 VA examinations were noted. The Veteran was noted to have his last VA mental health clinic treatment for depression in 2006. A January 2008 VA primary care progress note screening for depression showed that the Veteran did not have significant depressive symptoms at that time and no medication was started. The Veteran reported that he continued to have dysthymic disorder. He reported that his mother died the year prior, and his girlfriend died two years prior. He reported having limited sleep in the last 10 years. He reported sleeping about four hours a day, and reported that he could function the next day. The Veteran reported that his sleep problems were caused by pain which woke him at night. He had limited interests, including caring for his dog. He did not express excessive remorse or guilt. He described having reasonable energy except he had pain which limited his activities. Concentration was variable. The Veteran's weight had been stable. There was no prominent psychomotor agitation or slowing. The VA examiner stated that the Veteran's symptoms were consistent with a low-grade chronic depression which the DSM-IV termed as dysthymia. The Veteran was noted to have moderate use of alcohol, but the VA examiner noted that there was no correlation between dysthymia and moderate use of alcohol. The Veteran continued to have some difficulty sleeping. There was a mild degree of irritability and there was some fluctuation in level of concentration. A mental status examination shows that the Veteran was clean, neatly groomed, and casually dressed. Speech was spontaneous and clear. The Veteran's attitude was cooperative, friendly, relaxed, and attentive. Affect was appropriate. Mood was dysphoric. The Veteran's attention was intact. He was not able to do serial 7s, but was able to spell a word forward and backward. The Veteran was oriented to person, time, and place. Thought process and content were unremarkable. The Veteran's judgment was adequate and intelligence was average. The Veteran did have sleep impairment. He did not have hallucinations. He did not endorse inappropriate behavior. He did not have obsessive or ritualistic behavior, panic attacks, homicidal or suicidal thoughts. Impulse control was noted to be good. Recent, remote, and immediate memory were normal. The Veteran was noted to have been a woodworker for 40 years. He was retired at the time of examination. He did some antique furniture repairs part-time. The cause of his retirement was noted to be due to his back and neck disabilities. The Veteran was diagnosed with chronic dysthymia. He had a GAF score of 70, and the VA examiner noted that the Veteran continued to have mild symptoms of dysthymia. The VA examiner indicated that the Veteran did not have an occasional decrease in work efficiently or intermittent periods of inability to perform occupational tasks due to signs and symptoms of his mental disorder. The VA examiner instead indicated that the level of the Veteran's dysthymic symptoms would likely cause some transient or mild decreases in work efficiency under periods of significant stress. On VA examination in December 2012, the examiner summarized the Veteran's medical records, including prior VA examination reports. He indicated that the most recent mental health clinic progress note was dated in May 2006, at which time the Veteran was diagnosed with dysthymia and the GAF was 65. The examiner stated that the Veteran was not on medication for depression and had no psychiatric treatment since 2006. He noted that a January 2013 report of psychological testing showed an Axis I diagnosis of dysthymia in remission, and an Axis II diagnosis of schizoid personality traits. The GAF was 84. On examination, the examiner noted that the claims file was reviewed. The Veteran's patient chart in CPRS showed no current psychiatric medication regimen or psychiatric/mental health intervention since the last VA examination in 2009. The Veteran denied any private non-VA health care since the last VA examination in 2009. The examiner indicated that the Veteran's current dysthymia went undetected on the MCMI-III test. He stated, "The symptoms have appeared to have stabilized and have improved since his last C and P evaluation with Dr. Haffke a few years ago." The Veteran's testing was consistent with schizoid personality traits. The symptom validity checks were all valid for the three different validity measures on the MCMI-III. The Veteran reported that when his mother passed away four years ago, it turned his world upside down. He and his brother inherited a property from his mother, and he was now paying taxes for that property as well as his own home, and he had no money left over. Previously, he had been living in Arizona and would come to Iowa usually in May and would leave for Arizona in about October. Since the 2009 compensation VA examination, and after his mother's death in November 2008, he had not been able to leave. He now lived in his mother's former home and took care of it. He was on non-service-connected disability pension and so could not work for a living without losing his benefits, and could not sell her home as the income would cause the pension to stop. He attributed his depression to the financial stresses he was experiencing. He had a friend in the area and saw him once a month. He had little contact with his brother who was in poor health. Since August 2009, he had not worked. If he worked, he would lose his pension, jobs he might get might pay less than the pension income so he felt stuck. He was self-employed for 40 years making custom furniture. He said he was under major financial stress. He reported that he stayed by himself and had few friends. He did not go out. He felt depressed. He reported sleep problems, specifically trouble staying asleep and early waking. His average sleep time was four to five hours and that was interrupted. Arthritis pain woke him. He said this was his normal routine now and had been for the past 15 years. He did not nap during the day. His interests included doing yard work, and still made some custom hardwood furniture. He said it went more slowly than it did earlier in his life. His guilt was not excessive. Energy was "fine," concentration "comes and goes with the sleep pattern," and his weight was stable. He said he was not able to sit still and had never been able to do so. He denied suicidal thoughts. The examiner indicated that the symptoms were consistent with dysthymia. Anxiety was not prominent. He did not report hallucinations and his history did not indicate delusions. He reported that his tinnitus was physically uncomfortable and caused him to avoid going out and being with people. He said he drank four to six beers or wine in the afternoon which helped him relax. On mental status examination, the Veteran was appropriately dressed and neatly groomed. There were no unusual behaviors or mannerisms. He was fully cooperative and socially appropriate. Speech was of normal tone and volume. Thought process was logical. Mood was euthymic and affect was appropriate to content of thought. There were no hallucinations or delusions. His sensorium was clear and he was oriented to person, time, place and situation. Judgment was not impaired and he was not a danger to himself or others. The examiner indicated that there were no mental health clinic progress notes since 2006, and the Veteran was not currently taking any medication for psychiatric symptoms. The examiner opined that there was not total occupational and social impairment due to the mental disorder. In addition, the mental disorder did not result in deficiencies in most areas such as work, family relations, judgment, thinking, or mood. There was no reduced reliability and productivity due to the mental disorder. There was not an occasional decrease in work efficiency and there were no intermittent periods of an inability to perform occupational tasks due to the mental disorder. Rather, the current level of symptoms was consistent with occupational and social impairment due to mild or transient symptoms, or decrease in work efficiency, or an inability to perform occupational tasks only during periods of significant stress. The examiner diagnosed dysthymia, and stated that the Veteran had no other psychiatric disorders. The GAF was 80. The examiner indicated that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner stated that the claims file and CPRS were reviewed. The examiner noted that the Veteran had not had documented psychiatric treatment in recent years, and no medication for psychiatric conditions had been prescribed. The psychological testing reports that symptoms of dysthymia are undetected. Giving the Veteran the benefit of the doubt, he recommended that the diagnosis of dysthymia be continued. There was no evidence that there had been an increase in the level of dysthymia since the 2009 compensation and pension VA examination. On January 2013 VA psychological examination, the claims file was reviewed. He had no outpatient or inpatient treatment for a mental disorder, and no psychiatric symptoms during the past year. On examination, he was clean and neatly groomed. Psychomotor activity, speech, thought process, and thought content were unremarkable. His attitude toward the examiner was indifferent. His affect was appropriate and his mood was good. Attention was intact, and he was oriented to person, time, and place. He had no delusions. He understood the outcome of behavior. There were no hallucinations, obsessive/ritualistic behavior, panic attacks, homicidal or suicidal thoughts, or violence. Impulse control was good. He was able to maintain personal hygiene and there was no problem with activities of daily living. Memory was normal. The examiner indicated that the Veteran did not contend that his unemployment was due to the effects of a mental disorder. The Axis I diagnosis was dysthymia in remission, and the Axis II diagnosis was schizoid personality traits. The current GAF was 84. VA treatment records and VA examinations show that the Veteran has diagnosed dysthymia, characterized by varying symptoms of depressed mood and some symptoms of irritability. The Veteran has also reported chronic sleep disturbance. He indicated at the time of his most recent VA examination that he slept about four to five hours a night. The record shows that the Veteran has also attributed his sleep disturbance to tinnitus and to his physical pain from other medical conditions. Upon review of the evidence of record, the Board notes that VA treatment records throughout the rating period on appeal reflect GAF scores generally ranging from 65 to the current 84, except for a brief period in June to September 2000, where the Veteran's treating physician reported a score of 38, despite describing the Veteran's mood as euthymic. VA examinations by other examiners before and after this period reflected GAF scores of 65 in May 2000, and 85 in October 2000. The October 2000 examiner said that the lowest GAF in the prior year was 60. The Board finds that the low GAF scores in mid-2000 do not accurately represent the level of symptomatology from dysthymia which was reported by all of the examiners at that time, and are not accorded much probative weight as they are contradicted by the preponderance of the evidence. The Veteran's GAF scores overall reflect transient to mild symptoms. The Veteran's transient symptoms reflect expectable reactions to psychosocial stressors resulting in no more than slight impairment in social, occupational, or school functioning. See DSM- IV at 46-47. Mild symptoms may include depressed mood or mild insomnia, or some difficulty in social or occupational functioning, but indicates that the Veteran generally functions well with some meaningful interpersonal relationships. Id. The Veteran's assigned GAF scores are consistent with his VA psychiatric assessments, which indicate transient to mild symptoms of dysthymia throughout the vast majority of the appeal period. A June 2010 Joint Motion for Remand direct the Board to consider evidence presented in June 2007, July 2007 and September 2007 VA treatment reports as it pertained to the Veteran's depression. Upon review of the evidence of record, the Board finds that the Veteran had a temporary exacerbation of symptoms of depression during the period from June 26, 2007 through September 2007, for which he received treatment including antidepressant medication from June to September 2007, subsequent to a flood at his art studio. At that time, the Veteran was diagnosed with major depressive disorder, which appeared to be a single recurrent episode. The Veteran endorsed multiple symptoms of depression at that time. On September 21, 2007, the Veteran reported that he no longer needed psychiatric medication for depressive symptoms, and he stopped taking medication. The Board finds that during this period (i.e. from June 26, 2007 to September 21, 2007), a staged 30 percent rating, and no higher, is warranted for service-connected dysthymia, as the evidence reflects occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. He had increased symptoms of depressed mood during this period. A rating higher than 30 percent is not warranted for dysthymia during this period, as the evidence does not show 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. Later October 2007 and August 2009 VA examinations do not reflect such a high level of depressive symptoms. Though the Veteran continued to exhibit symptoms of depressed mood and sleep disturbance, the Veteran's symptomatology was shown to be mild in degree. The Veteran's depressed mood and sleep disturbance have been considered in his currently assigned 10 percent rating under Diagnostic Code 9433. Despite the exacerbation of the Veteran's symptoms which occurred from June to September 2007, the Board finds that the Veteran's overall disability picture over the course of the appeal more closely resembles a 10 percent rating for dysthymia. During the period prior to June 26, 2007 and after September 21, 2007 (i.e. during the vast majority of the past several years), the Board finds that the Veteran's overall disability picture is most consistent with a 10 percent evaluation for dysthymia under Diagnostic Code 9433. Throughout most of the rating period on appeal, the Veteran's dysthymia has been characterized by depressed mood and sleep disturbance, while at the most recent VA examinations in December 2012 and January 2013, his dysthymia is essentially asymptomatic. The Veteran's symptoms and the level of his symptomatology has been largely consistent throughout the course of the appeal, with the exception of the brief period in 2007. The record shows that the Veteran was retired due to his physical disabilities but he continued to do some woodwork. With the exception of the Veteran's depressed mood and sleep disturbance, mental status examinations were unremarkable. As of 2006, the Veteran discontinued psychotherapy at the VA mental health center. The Veteran's more recent October 2007, August 2009, and December 2012 VA examinations clearly show that the Veteran had transient or mild symptoms due to dysthymia with a decrease in work efficiency and the ability to perform occupational tasks only during periods of significant stress. See 38 C.F.R. § 4.130, Diagnostic Code 9433. And, as noted, the January 2013 VA examiner indicated that his dysthymia was in remission. The GAF was 80 in December 2012 and 84 in January 2013. The Board finds that with the exception of the brief period from June 26, 2007 to September 21, 2007, the record does not establish that the Veteran has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks to warrant a higher 30 percent evaluation for dysthymia, throughout the rating period on appeal. Although the Veteran has symptoms of depressed mood and chronic sleep impairment; he does not endorse other symptoms as described for a 30 percent rating such as anxiety, suspiciousness, panic attacks, or mild memory loss (such as forgetting names, directions, recent events). See 38 C.F.R. § 4.130, Diagnostic Code 9433. More importantly, the Board finds that the overall severity of the Veteran's symptomatology is not consistent with a higher 30 percent rating. The Veteran's GAF scores indicate that his dysthymia is transient to mild in degree and multiple VA examiners found that the Veteran's symptoms did not result in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks as described for a higher 30 percent rating. In addition to the medical evidence, the Board has considered the Veteran's personal assertions in support of his claim. He is competent, as a layman, to report on that as to which he has personal knowledge, such as depression and sleep difficulties. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). As a layman, without the appropriate medical training and expertise, the Veteran is not further competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his dysthymia in relation to the applicable rating criteria. An examiner, including the VA compensation examiner, takes into consideration the Veteran's subjective complaints, his social and occupational history, and the results of the objective mental status evaluation in determining the overall severity of his dysthymia. This determination is multi-factorial, not just predicated on his lay statements reported history, but rather on all of the relevant medical and other evidence. Absent evidence of more symptoms indicating a higher severity of psychiatric dysfunction, the Board finds that the preponderance of the evidence is against a disability rating greater than 10 percent for his dysthymia throughout the rating period on appeal, with the exception of the period from June 26, 2007 to September 21, 2007, during which the Board has granted a higher "staged" rating, with resolution of reasonable doubt in his favor. See Fenderson, supra; 38 C.F.R. § 4.3. Extra-Schedular Consideration Consideration also has been given to whether the schedular evaluation is inadequate, thus requiring referral of this claim to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to this service-connected disability. 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the claim must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2012); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. The Veteran's symptoms of dysthymia are fully contemplated under Diagnostic Code 9433. Hence, the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See, too, Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired). Also, the Veteran has not received treatment or medication for this condition in years. So extra-schedular referral is not warranted in this instance. Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). (Continued on the next page) ORDER During the periods prior to June 26, 2007 and after September 21, 2007, an initial rating higher than 10 percent for dysthymia is denied. During the period from June 26, 2007 to September 21, 2007, a higher initial 30 percent rating for dysthymia is granted, subject to the regulations governing monetary benefits. ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs