Citation Nr: 1339768 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 05-09 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a psychological disorder, to include depression and dysthymic disorder, prior to November 29, 2006, and a rating in excess of 50 percent, from November 29, 2006. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant served on active duty from July 1972 to February 1973, followed by service in the Ohio National Guard from February 1982 to December 1995 and prior Reserve component service totaling three months and one day, including several periods of active duty for training. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the appellant's May 2006 claim for an increased rating for his psychological disorder. In May 2010, the appellant testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The case was previously before the Board in June 2012 wherein the Board denied the appellant's claim for an increased rating prior to November 29, 2006, and granted an increased rating of 50 percent from November 29, 2006. The appellant appealed the Board's June 2012 decision to the U.S. Court of Appeals for Veterans Claims (Court). In February 2013, his representative and VA's Office of General Counsel, representing the Secretary of VA, filed a Joint Motion for Partial Remand requesting that the Court vacate the Board's decision and remand the case for readjudication in compliance with directives specified. The Court issued an order in March 2013, granting the Joint Motion, and returned the case to the Board. The Board notes that the claims for entitlement to service connection for bilateral hearing loss, tinnitus, sleep apnea, and an ankle disorder, whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right ankle disorder, entitlement to an increased (compensable) rating for an anaphylactic bee sing allergy, and entitlement to a TDIU were remanded in June 2012 and have not been recertified to the Board and remain pending before the RO pursuant to the previous remand. In September 2013, the Board received evidence from the appellant's representative, including a September 2013 private psychological report. The Board notes that VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a supplemental statement of the case (SSOC) unless this procedural right is waived in writing by the appellant or representative. 38 C.F.R. §§ 19.37, 20.1304 (2013). In a written statement dated in September 2013, the appellant's representative waived RO consideration of the new evidence. Thus, the Board finds no prejudice to the appellant in proceeding to adjudicate this appeal. The issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT Throughout the rating period on appeal, the appellant's psychological disorder involving depression and dysthymia was manifested by moderate to severe symptoms of depression and social withdrawal, productive of occupational and social impairment comparable to no more than deficiencies in most areas such as work, school, family relations, judgment, thinking or mood. CONCLUSION OF LAW The criteria for entitlement to an evaluation of 70 percent, but no higher, for service-connected psychological disorder with depression and dysthymia have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.126, 4.130, Diagnostic Code 9499-9433 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). More specific notice is required in claims for increased compensation. See 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 has met all statutory and regulatory notice and duty to assist provisions as to the appellant's increased rating claims. Prior to initial adjudication of the claim, appropriate notice was provided in a December 2006 letter. Mayfield, 444 F.3d at 1333; See Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant's Social Security Administration records have been associated with the file. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The RO provided the Veteran appropriate VA examinations in May 2008, December 2010 and July 2011. The examinations are adequate because they are based on thorough examinations, a description of the appellant's pertinent medical history and appropriate diagnostic tests. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on 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 disability will be a fully informed one). The appellant has not reported receiving any recent treatment specifically for this condition. There is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The VA examination reports are thorough and supported by VA outpatient treatment records and provided findings pertinent to the rating criteria. The examinations in this case are adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 4.1 (2013). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, where, as here, the appellant is appealing the rating for an already established service-connected condition, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The appellant's psychological disorder with depression and dysthymia has been evaluated by the RO under Diagnostic Code 9499-9433. That combination of Diagnostic Codes signifies the rating of an unlisted disorder under those criteria most closely analogous. See 38 C.F.R. §§ 4.20, 4.21, 4.130 (2013). Under 38 C.F.R. § 4.130, Diagnostic Code 9433, a 10 percent rating is assigned where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or, symptoms controlled by continuous medication. A 30 percent evaluation is assigned for occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted if one exhibits 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. A 70 percent evaluation is warranted if one exhibits 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; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); or an inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when there is total occupational or social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)) (DSM-IV). According to DSM-IV, a GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. A GAF score of 51 to 60 indicates the examinee has moderate symptoms or moderate difficulty in social, occupational, or school functioning. A GAF score of 41 to 50 indicates the examinee has serious symptoms or a serious impairment in social, occupational, or school functioning. A GAF score of 31 to 40 indicates the examinee has some impairment in reality testing or communication or major impairment in several areas, such as work or school. A GAF score of 21 to 30 indicates that the examinee's behavior is considerably influenced by delusions or hallucinations, has serious impairment in communication or judgment, or is unable to function in almost all areas of life. A GAF score of 11 to 20 indicates that the examinee is in some danger of hurting self or others or occasionally fails to maintain minimal personal hygiene or gross impairment in communication. A GAF score of 1 to 10 indicates persistent danger of severely hurting self or others or persistent inability to maintain minimal personal hygiene or serious suicidal act with clear expectation of death. See also QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV, 46-47 (1994). When it is not possible to distinguish the effects of a non-service-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to a veteran's service-connected disability. See 38 C.F.R. § 3.102 (2013); Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (holding that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so); but see Mittleider, 11 Vet. App. at 182 (holding that the Board may not ignore distinctions between symptomatology attributed to a non-service-connected disability and a service-connected disability where they appear in the medical record). The appellant's claim for an increased evaluation was received on December 1, 2006. The Board notes that in the February 2013 Joint Motion, the parties stated that the appellant's claim was received in May 2006, as noted by the RO in the May 2008 rating decision. The claims file reflects that a claim for service connection for bilateral hearing loss and tinnitus was received in May 2006, not for an increased rating for his service-connected psychiatric disability. However, as the RO found that the appellant's claim was from May 2006, the Board will consider the rating period on appeal from May 2005. 38 C.F.R. § 3.400(o)(2) (2013). Analysis The appellant is service-connected for a psychological condition/depression/dysthymic disorder associated with anaphylactic (chronic) bee sting allergy. A July 2005 VA treatment record reflects that the appellant reported recurrent dreams of being chased and at risk of being stung by bees. September 2005 and January 2006 VA treatment records indicate that the appellant was casually dressed and groomed and was cooperative with good eye contact. He was alert, oriented and able to give history. His mood was fairly even, frustrated when his expectations were not met. His affect was pleasant. He had no delusions or hallucinations. Speech was logical and coherent, and insight and judgment were ok. He had no suicidal or homicidal ideation. He had a GAF score of 45. A May 2006 VA treatment record indicates that the appellant stated that he felt "pretty good." He was taking Citalopram. On examination, he was cooperative with good eye contact. He was alert, oriented and able to give history. His mood was fairly even, his affect was pleasant. He had no delusions or hallucinations. His speech was logical and coherent. His insight and judgment were ok. He did not have suicidal or homicidal ideation. He had a GAF score of 48. A June 2006 VA treatment record also indicated he had a GAF score of 48. A November 2006 VA treatment record notes that the appellant continued to care for his disabled wife in their home. He and his wife also cared for his grand-daughter in their home while the parents worked. He stated that he felt "gloomy," resigned to the thoughts that he is as "good as I am going to get." On examination he was casually dressed and groom, and cooperative with good eye contact. He had no delusions or hallucinations. Speech was logical and coherent. His insight and judgment were okay. He had no suicidal or homicidal ideation. He had a GAF score of 48. Another November 2006 VA treatment record indicates that the appellant was on disability for his back and saw a psychologist monthly related to this. He helped his wife, who had a stroke, and had a dog at home. He spent his time at home, watched TV and was on the computer a little bit. On examination, he was casually dressed and groomed, not in distress. He related and interacted appropriately. His speech was clear, coherent and made sense. Speech speed was normal. Mood was okay, affect was pleasant. No suicidal or homicidal thoughts were elicited. He had no hallucinations and delusions were not elicited. He was alert and oriented. Judgment and insight were okay. There were no psychotic indicators or gross cognitive impairment. He had a GAF score of 55. A March 2007 VA treatment record also indicated the appellant had a GAF score of 55. A March 2007 VA treatment record noted that the appellant reported that pain was affecting his mental health. A January 2008 VA psychiatric note reflects that the appellant related and interacted appropriately. His speech was clear, coherent and made sense. His speech speed was normal. Mood was okay, affect pleasant. No suicidal or homicidal thoughts elicited. Hallucinations and delusions were not elicited. He was alert and oriented, able to give history. Judgment and insight were okay. He had a GAF score of 55. A May 2008 VA psychiatric examination report indicates that the appellant was casually dressed and had normal hygiene. He exhibited a slow personal tempo. He had no delusions or hallucinations and his thought processes were connected, coherent and relevant. His memory was intact for recent and remote events and his mood was depressed. The appellant stated that he is very afraid of bees, gets hysterical if he sees one, and is "scared to death" around insets. He stated that he stays inside even when friends at his home, because he is afraid to go outside. The VA examiner stated that "it is clear from the record that [the appellant] is depressed, but the evidence strongly suggest that his depression is mainly associated with multiple serious medical problems which cause him considerable stress and are referred to often in the progress notes." The examiner noted that the appellant was last employed in 1998 but was put on permanent disability because of his multiple medical problems. An August 2008 VA treatment record indicates he had a GAF score of 55. The note stated that the appellant had many cognitive distortions of the relationship between the bee stings, during his military service, his reaction to the same, and causation with all of his current medical conditions. At a December 2008 RO hearing, the appellant stated that he is afraid of bees, getting stung and dying. He stated that even when he has friends come over, and they want to sit outside, and his wife will go out and sit with them, he will stay in the house because he will not go out. See RO Hearing Transcript at p. 6. He stated that he stays in as much as possible to prevent a bee sting. Id. at p. 7. The appellant stated that he retired due to a physical issue. He stated that from a fear of bee stings, he trembled a lot. He had a back problem "that had nothing to do with it." He stated that after he had his heart attack, they no longer wanted him to work. Id. at p. 8. An August 2009 VA treatment record reflects that the appellant's mood was euthymic and his affect was blunted. He denied suicidal or homicidal ideation and he was future oriented. Another August 2009 VA treatment record noted that the appellant's mood was okay, euthymic, and his affect was blunted. He rated his depression as 4-5/10. He had no suicidal or homicidal thoughts. He had no hallucinations or delusions. He was alert and oriented and his judgment insight were not markedly impaired. A December 2010 VA examination report reflects that the appellant was casually dressed, alert, cooperative, and showed good eye contact. He was oriented to time, place, and person. His psychomotor activity was slowed and he was using oxygen. His speech was clear and of normal volume and articulation. His mood was slightly anxious and his affect was mood congruent. His thought process was goal oriented and had no derailment, loose or clanging associations, thought blocking, or neologisms. He had no signs of delusions or frankly paranoid belief systems. He denied suicidal or homicidal ideation. The appellant complained of frequently depressed mood, disturbed sleep, fatigue, transient feelings of helplessness and poor concentration. The VA examiner noted that it did not appear that the appellant's mental health problems impaired his ability to complete basic activities of daily living including his own self-care, hygiene, and personal daily needs. Beck Depression inventory II results was slightly higher than his score in 2008, but both scores were considered in the severe range for depressive symptomology. The December 2010 VA examiner assigned a GAF score of 55 "because of the overall high moderate to severe symptoms associated with high moderate to severe reduction of social, vocational and mental functioning." The VA examiner stated that the appellant continued to meet the criteria for dysthymic disorder and appeared to be experiencing symptoms of a high moderate to severe degree. The examiner found that the appellant's mental health symptoms would likely cause high moderate discomfort when interacting with other people, and high moderately reduced communication effectiveness only in the sense that he is uncomfortable being in various setting with people, because of his fear of bees. The examiner noted that. By his own admission, he gets along well with those around him. His level of fatigue and concentration problems would likely cause high moderate to severe work inefficiency and productivity. His ability to maintain a logical thinking process appeared adequate and would likely not impact his social or vocational functioning. The examiner noted that the appellant's subjective appraisal of his current situation was that the frequency and/or severity of his symptoms is worse than it was at the time of his last VA examination. However, the examiner stated that his testing suggested his symptoms severity was about the same or possibly slightly improved. A May 2011 VA treatment record notes that the appellant's speech was of a normal rate and rhythm. His mood was dysthymic. He had a blunted range affect with no hostility. There was no suicidal or homicidal ideation or hallucinations. His thought process was coherent, focused and organized. A July 2011 VA psychiatric examination report reflects that the appellant reported that he got along very well with his current wife and stepchildren. On examination, the appellant was alert and oriented to all spheres. He was casually and appropriately groomed. Eye contact was within normal limits and mood and affect were somewhat flat. The appellant had a tendency to attribute all of his past and current medical problems to his bee sting allergy and phobia "and that has rendered him unable to work." Speech was at a low rate and volume. He reported feeling depressed due to not being able to do what he wants to do due to his medical problems (particularly breathing problems, weakness). He reported never having been so depressed that he contemplated suicide. He also reported never experiencing auditory or visual hallucinations or delusions in his lifetime. His speech/thought content suggested no abnormality of thought. The appellant reported that he was able to maintain his activities of daily living. The VA examiner noted that the appellant's MMPI-2 results indicated generally stable functioning compared to prior VA examinations with the exception of a mild increase in the feeling that life is lacking in positive emotional/interpersonal experiences (i.e., a core aspect of depression). The VA examiner found that the appellant continued to meet the criteria for dysthymic disorder and that he was experiencing symptoms of a moderate to severe degree. The July 2011 VA examiner opined that it was more likely than not that his multiple significant medical complications were more of a barrier to his ability to work. The VA examiner stated that "Insofar as how his phobia of bee stings and resultant depression interferes with his ability to work, it is also the opinion of this examiner that this phobia/depression (solely) is likely as not sufficient to render this gentleman unemployable nor significantly interfere with other physical and sedentary activity." There appears to be a typo in the opinion, and thus it's meaning is unclear. The VA examiner stated that the appellant had a GAF score of 60. In a September 2013 private psychological report, the psychologist noted that he reviewed the appellant's claims file, interviewed the appellant face to face and administered, scored and interpreted his responses to the Minnesota Multiphasic Personality Inventory-2. The private psychologist noted the appellant's psychological history, and stated that since he went into anaphylactic shock in August 1991, he has felt in danger of dying from a bee sting. The report states that "[O]ver time, [the appellant's] depressive and anxiety symptoms have intensified to the point of being unable to leave the house and unable to find employment." Based on the Minnesota Multiphasic Personality Ineventory-2, the private psychologist found that, "Persons with similar 28/82 elevations show withdrawal, depression, anxiety, alienation, and agitation. They are tense and jumpy, and complain of fatigue and weakness. Inefficiency is typically observed. They often show confusion and complain that they cannot think clearly or concentrate. Others see them as becoming inefficient in carrying out their activities. Often they fear losing control over their impulses. Suicidal thoughts are likely, and hallucinations or delusions may be present." The psychologist stated that this is congruent with the appellant's psychological testing in 2008. All of the above symptoms can be identified as common to individuals suffering from major depression, intensified by feelings of loss of control and resulting anxiety, which have been identified as directly related to his service-connected bee sting and its long term effects. The private psychologist opined that due to the above symptoms, the appellant is totally unable to secure and follow any substantially gainful employment, dating back to December 12, 1998. The psychologist noted that the appellant reported that he had tried to get a job, but no one would employ him because of the hysteria he might exhibit or be overcome by should he observe or perceive to see a bee nearby. The psychologist stated that "[t]he instability of the emotional impact of his bee stings is visible and severe." The psychologist found that the appellant had Axis I diagnoses of major depression and dysthymic disorder with a GAF score of 45. He stated that: [J]ust the symptoms from the bee sting alone, with its depressive and anxiety impact, would make [the appellant] unemployable, even in the absence of any other of the myriad of symptoms to which he tends to be victim. The impact of the stings on his thinking, emotions, and behavior would, with a high degree of medical certainty, make him unemployable with a direct causal relationship to the on duty bee stings and their impact on [the appellant's] thinking, emotions and behavior. The private psychologist further found that since leaving the Ohio National Guard in 1998, the appellant has been unable to sustain a consistent form of employability. He continues to be withdrawn and has found in those cases where he has applied for work that he has been rejected because of his fear of bee stings and the predicted impact upon his behavior. In regard to the appellant's mood, the psychologist opined that the appellant's phobic reaction to his expectation of being stung again has immobilized the appellant and the depression has increased since his original experience 1996. He further noted that the appellant's obsession with the possibility of a bee sting and the depressive reaction impacting his ability to concentrate and complete complex tasks severely impairs his thinking and judgment. Life outside the severely contained environment of his home is perceived as dangerous and to be avoided. The psychologist also notes that the appellant avoids any contact, social or occupational and has shown a severely impaired ability to adapt to even the most common stresses of a normal life. The psychologist stated that "[h]is life is not normal and will, with a significant degree of medical certainty, remain permanent and resistant to change in the future. There are indications of suicidal ideation, but he has chosen, when these occur, to continue in his suffering and impaired life." The VA examiner stated that the appellant is clearly more depressed than he was at his previous VA examination in April 2003. The VA examiner stated that "while he does likely fear being stung by bees because of his past allergic reactions, it is unlikely that his fear is responsible for the increase in his depression. He has a Benadryl kit that he carries with him which will mitigate the consequences. . . It is clearly [the appellant's] medical conditions which is most responsible for his increased depression." He had an Axis I diagnosis of major depressive disorder with a GAF score of 50. As the September 2013 private psychologist reviewed the claims file and provided a rationale for his opinions, the Board finds the report to be probative. After review of the evidence of record, the Board finds that a rating of 70 percent is warranted throughout the period on appeal, including prior to and from November 29, 2006. The appellant is service-connected for a psychological condition/depression/dysthymic disorder associated with an aphlylactic (chronic) bee sting allergy. As noted in the February 2013 Joint Motion, VA treatment records from May 2005 to November 2006 do not address what depressive symptomatology is attributable to the appellant's bee sting allergy versus which is attributable to his "Dysthymia: r/o mood disorder (depression) related to medical condition (sleep apnea)." See e.g. September 2005 VA treatment record. The VA treatment records reinsert the identical Axis I assessment throughout. The records were not prepared with the aim of distinguishing the effects of the appellant's service-connected depressive disorder due to a bee sting allergy and that of his depressive symptomatology attributable to other non-service conditions. Giving the appellant the benefit of the doubt, the depressive symptoms must be attributed to the service-connected condition. Mittleider, 11 Vet. App. at 182. Thus, the Board has considered the severity of all of the appellant's depressive symptoms. The Board finds that the evidence consistently showed the appellant's service-connected psychological disorder caused occupational and social impairment, with deficiencies in most areas, such as work, school family relations, judgment, thinking, or mood. The appellant's GAF scores during the period on appeal ranged from 45 to 60, indicating moderate to serious symptoms. As noted above, September 2005 and January 2006 VA treatment records indicate that the appellant had GAF scores of 45. May, June and November 2006 VA treatment records noted that the appellant had a GAF scores of 48. A November 2006, March 2007, January 2008, and August 2008 VA treatment records and the May 2008 VA examiner noted that he had GAF scores of 55. The December 2010 VA examiner assigned a GAF score of 55 "because of the overall high moderate to severe symptoms associated with high moderate to severe reduction of social, vocational and mental functioning." The July 2011 VA examiner found the appellant had a GAF score of 60. The September 2013 VA examiner found the appellant had a GAF score of 50. The Board finds that the evidence shows that the appellant's symptoms of his service-connected psychological disorder, to include depression and a dysthymic disorder, have been generally stable during the period on appeal. The May 2008 VA examination stated that test results indicated that the severity of his psychiatric problems had increased since his last VA examination in April 2003. The December 2010 VA examiner noted that the appellant's test results indicated an improvement, although he still had a score in the severe range for depressive symptomatology. The VA examiner noted that although the appellant subjectively felt his symptoms were worse, testing suggested his symptom severity was about the same or possibly slightly improved. The July 2011 VA examiner indicated the appellant's MMPI-2 results indicated generally stable functioning compared to his prior VA examinations with the exception of a mild increase in the feeling that life is lacking in positive emotional/ interpersonal experiences. The September 2013 private psychologist found that over time, the appellant's depressive and anxiety symptoms intensified, but that he had been unemployable since 1998. Thus, the Board finds that overall, the appellant's symptoms have generally been stable during the period on appeal, and finds that an increased rating for the entire period on appeal, before and afeter November 29, 2006, is warranted. The appellant reported symptoms that cause social and occupational impairment. The medical evidence reflects that the appellant has depression affecting the ability to function independently. The December 2010 VA examination report indicated that the appellant had symptoms of dysthymic disorder a high moderate to severe degree. The appellant complained of frequently depressed mood, fatigue, transient feelings of helplessness and poor concentration. The VA examiner noted that the appellant's mental health symptoms would likely cause high moderate discomfort when interacting with other people, and high moderately reduced communication effectivenesss in the sense that he is uncomfortable being in various settings with people because of his fear of bees. The VA examiner also found that the appellant's mental health symptoms would likely cause high moderate to severe work inefficiency and productivity. The July 2011 VA examiner found that the appellant had symptoms of dysthymic disorder to a moderate to moderate degree. With respect to the schedular criteria, the appellant's VA examination reports and VA treatment records did not indicate the appellant exhibited symptoms of suicidal ideation, obsessional rituals, illogical, obscure or irrelevant speech, impaired impulse control, spatial disorientation, or neglect of personal appearance and hygiene. However, the Board finds that the appellant's symptoms cause occupational and social impairment with deficiencies in most areas. The appellant has consistently reported that he is afraid to leave his home due to his fear of getting stung by bees. He reported that when friends came over, he would not go outside with them because of his fear of bees. See May 2008 VA examination report. The September 2013 private psychologist found the appellant was totally unable to secure and follow substantially gainful employment since 1998. The Board finds that September 2013 private psychological report to be probative as the psychologist reviewed the claims file and interviewed the appellant and provided a rationale for the opinion regarding the severity of the dysthymic disorder. The Board has considered whether an increased 100 percent rating is warranted, but finds the overall evidence does not show that the appellant total occupational and social impairment. As noted above, the appellant's symptoms have generally been described as being moderate to severe, not solely severe. The Diagnostic Code provides a list of the type of symptoms indicating total occupational and social impairment, and the appellant does not have these symptoms or symptoms of a similar severity. The evidence does not reflect that he has gross impairment in thought processes or communication. The appellant consistently denied having hallucinations. The evidence does not reflect the appellant has grossly inappropriate behavior, is a 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, or memory loss for names of close relatives, own occupation or own name. The appellant has not expressed any homicidal or suicidal ideation. The Veteran is also entitled to a 100 percent rating if his service-connected PTSD causes total occupational and social impairment, regardless of whether he has some, all, or none of the symptoms listed in the rating formula, and regardless of whether his symptoms are listed in the Rating Schedule. See Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002); see also Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In this case, it is clear that the appellant's service-connected dysthymic disorder has not resulted in total impairment. While the appellant reported having an "up and down" relationship with his wife at the July 2011 VA examination, he reported that they generally got along well. He also reported that he got along very well with his stepchildren. He helped care for his wife and his granddaughter. The July 2011 VA examiner reflects that the appellant was able to maintain his activities of daily living. The July 2011 VA examiner indicated the appellant's symptoms due to his phobia/depression do not significantly interfere with physical or sedentary activity. Although the Board finds the September 2013 private psychological report to be probative, the psychologist did not provide a full rationale for his opinion that "Due to the above symptoms, [the appellant] is totally unable to secure and follow any substantially gainful employment, dating back to December 12, 1998." He noted that the appellant reported that he tried to get a job, but no one will employ him because of the hysteria he might exhibit or be overcome by should he observe or perceive to see a bee nearby. This statement is inconsistent with the other evidence of record, which indicates the appellant stopped working due to physical problems, including a back disability. See November 2006 VA treatment record. The Board finds the appellant's service-connected psychological disorder is productive of social and occupational impairment, but this impairment does not most nearly approximate total. In sum, the Board finds the criteria for an increased rating of 70 percent for the appellant's service-connected psychological disorder, to include depression and dysthymic disorder, have been met throughout the period on appeal. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether an appellant is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's 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 appellant'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 appellant's disability picture requires the assignment of an extraschedular rating. The Board finds that neither the first nor second Thun element is satisfied here. The discussion above reflects that the symptoms of the appellant's psychological disorder are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the left knee disability is primarily manifested by occupational and social impairment with deficiencies in most areas. The Diagnostic Codes used to rate the appellant's disability provide for ratings based on occupational and social impairment. Thus, the symptoms have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the appellant's disability have been fully considered and are contemplated in the rating schedule. Consideration of whether the appellant's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Even if the Board were to find that step one of Thun had been satisfied, extraschedular referral would still not be warranted because the Board also finds that Thun step two is not satisfied. See Johnson v. Shinseki, 26 Vet.App. 237, 247 (2013) (en banc) (error in Thun step one analysis is harmless were Board makes an adequate finding that Thun step two is not satisfied). The appellant's psychological disability does not present an exceptional disability picture with related factors such as marked interference with employment or frequent hospitalization. 38 C.F.R. § 3.321(b)(1). The appellant has not been hospitalized for this condition. As to employment, as discussed above, the Board finds that the appellant does not have total occupational impairment due to his psychological disorder. Thus, even if his disability picture was exceptional or unusual, referral would not be warranted. TDIU is an element of all appeals for an increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Board found the issue of entitlement to a TDIU was raised by the record in the June 2012 remand. The Board remanded the issue to the RO for additional development and the issue has not been re-certified to the Board. Thus, the Board will address the issue of entitlement to a TDIU after the previously directed development has been accomplished. ORDER Entitlement to a rating of 70 percent for a psychological disorder, to include depression and dysthymic disorder, is granted throughout the rating period on appeal. REMAND Regarding the issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for a low back trauma, the Board finds this issue needs to be remanded for issuance of a statement of the case (SOC). The appellant filed a claim to reopen his claim for a back injury in June 2011. In a May 2013 rating decision, the RO denied the appellant's claim. In May 2013, the appellant's representative filed a notice of disagreement with the decision. The record does not reflect that a SOC has been issued in response to the appellant's notice of disagreement pursuant to 38 C.F.R. § 19.26 regarding the claim for whether new and material evidence has been received to reopen a claim for entitlement to service connection for low back trauma. In this situation, the Court has indicated that the proper action is to remand the issue to the RO for appropriate action. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) ("Thus, the next step was for the RO to issue an SOC on the denial of the . . . claim, and the Board should have remanded that issue to the RO, not referred it there, for issuance of that SOC."). As such, the Board finds that this issue should be remanded for the issuance of a SOC by the RO. The Board also notes that in the May 2013 rating decision, the RO denied claims for a higher rating for a psychological disorder involving depression and dysthymia, anaphylactic bee sting allergy and entitlement to a TDIU. As noted by the appellant's representative in the May 2013 notice of disagreement, these issues were previously remanded by the Board for additional development in June 2012. Accordingly, the case is REMANDED for the following action: 1. Provide the appellant with a statement of the case as to the issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for low back trauma. The appellant should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is not filed, the claim should not be certified to the Board. 2. The RO should also complete the development requested by the Board in the June 2012 Remand on the issues of entitlement to service connection for bilateral hearing loss, tinnitus, sleep apnea, a left ankle disorder, whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right ankle disorder, entitlement to an increased (compensable) rating for an anaphylactic bee sting allergy and entitlement to a TDIU. See June 2012 Board remand. 3. Thereafter, readjudicate the issues on appeal which were remanded in June 2012. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs