Citation Nr: 1340242 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 07-12 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a higher initial evaluation for a mood disorder in excess of 30 percent disabling from August 20, 2003 to December 12, 2010; in excess of 50 percent from December 13, 2010 to April 23, 2012; and in excess of 70 percent as of April 24, 2012. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disability prior to August 24, 2012 to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his brother ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Appellant is a veteran who served on active duty from February 9, to November 23, 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, granting service connection and a 30 percent evaluation for a mood disorder, as of September 13, 2005. The present appeal stems from the Veteran's disagreement with the initial disability rating. The Veteran provided testimony during a September 2011 videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board, a transcript of which is of record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims ("the Court") held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. In the instance case, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. The VLJ and the Veteran's representative asked specific questions directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. The VLJ sought to identify any pertinent evidence not currently associated with the claim. In addition, the Veteran volunteered his treatment history. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. As such, the Board finds that the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). Subsequent to the videoconference hearing, in November 2011, the Board denied a an initial evaluation in excess of 30 percent for the mood disorder prior to December 13, 2010, but granted a 50 percent evaluation from December 13, 2010 onward. The Board also assigned the Veteran an earlier effective date of August 20, 2003, for the grant of service connection for a mood disorder. The Veteran appealed the Board's November 2011 decision to the Court. In a June 2013 Memorandum Decision, the Court vacated the November 2011 Board decision to the extent that it denied a rating in excess of 30 percent prior to December 13, 2010; and denied a rating in excess of 50 percent as of December 13, 2010. In the Memorandum Decision, the Court found that the Board, in denying the higher ratings during the staged periods, limited its discussion to the requirements outlined for a 50 percent rating; failed to adequately discuss the evidence supporting the Veteran's contentions; failed to adequately explain why the Board favored a VA examination report over a private examination report; failed to adequately discuss the testimony of the Veteran and his brother; and failed to consider a total disability rating based on his service connected disabilities (TDIU). The Court remanded the case to the Board for additional consideration. While the case was being reviewed by the Court, in January 2013, the RO granted a 70 percent rating for the mood disorder, effective as of April 24, 2012. The RO also granted a TDIU, also effective as of April 24, 2012. The Board will review the issues regarding the staged ratings for his mood disorder. However, the claim of entitlement to a TDIU under 4.16(b) prior to April 24, 2012 requires further development before being decided on appeal; it will be remanded to the RO via the Appeals Management Center (AMC). FINDINGS OF FACT 1. From August 20, 2003 through December 12, 2010, the probative evidence shows that the Veteran's mood disorder was manifested by symptoms productive of no more than occupational and social impairment most comparable to reduced reliability and productivity with difficulty establishing and maintaining effective work and social relationships. 2. From December 13, 2010 through April 23, 2012, the probative evidence shows that the Veteran's mood disorder was manifested by symptoms productive of no more than occupational and social impairment most comparable to reduced reliability and productivity with difficulty establishing and maintaining effective work and social relationships. 3. As of April 24, 2012; the Veteran's mood disorder has been manifested by symptoms productive of no more than occupational and social impairment most comparable to deficiencies in most areas, to include an inability to establish and maintain effective relationships. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, as of August 20, 2003, through December 12, 2010, the criteria for an initial disability evaluation of 50 percent for mood disorder were met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9435 (2013). 2. From December 13, 2010 through April 23, 2012, the criteria for an initial rating in excess of 50 percent for the Veteran's mood disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9435 (2013). 3. From April 24, 2012, the criteria for an initial rating in excess of 70 percent for the Veteran's mood disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9435 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims 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. 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). For initial rating claims, where, as here, entitlement to disability benefits has been granted and an initial rating has been assigned, the original claim has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for entitlement to benefits has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess, supra; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board finds that the notification requirements of VCAA have been satisfied in this case. In this regard, the Board notes that the Veteran was provided with proper VCAA notices in September 2003 and January 2006. In these notices, the RO advised the Veteran of the evidence needed to substantiate his claim. The Veteran was advised of his and VA's responsibilities under VCAA, to include what evidence should be provided by him and what evidence should be provided by VA. The January 2006 notice further advised the Veteran as to the type of evidence needed to substantiate both the disability rating and effective date elements of his claim, pursuant to the Court's holding in Dingess, supra. The Board further finds that the duty to assist requirements of VCAA have also been satisfied in this case. 38 U.S.C.A. §§ 5103 and 5103A. Specifically, the Board finds that all obtainable evidence identified by the Veteran relative to the issues on appeal has been obtained and associated with the claims folder. In particular, the Board notes that the RO obtained the Veteran's service treatment records, VA medical records, and private medical records. In the case at hand, the Veteran underwent VA examinations in connection with his claim. The Board finds that the resulting examination reports are adequate for the purpose of determining the claims that are decided herein. These examination reports reflect that the examiners reviewed the claims folder, including the Veteran's service treatment records. During the examinations, the examiners elicited from the Veteran his history of complaints and symptoms, conducted thorough examinations, and provided clinical findings detailing the examination results. Moreover, the Board finds that the information that was provided in the examination reports in connection with the service connection claims that were subsequently granted is sufficient for the purpose of assigning the appropriate disability ratings. For these reasons, the Board concludes that the reports of the VA examinations provide adequate bases for a decision. The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Increased Ratings Service connection was granted for mood disorder by the RO in an October 2006 decision. The RO assigned a 30 percent rating, effective September 13, 2005. The Board in November 2011 denied a higher initial evaluation of 30 percent for the mood disorder prior to December 13, 2010; but, granted a 50 percent evaluation from December 13, 2010 onward. The Board also assigned an earlier effective date for the grant of service connection for a mood disorder as of August 20, 2003. Both grants were effectuated by a December 201 rating action. In a January 2013 rating action, the RO assigned a 70 percent evaluation, effective April 24, 2012. Even though the RO increased the schedular rating for the Veteran's disability during the appeal, the issue of entitlement to an increased rating remained on appeal, as the Veteran has not indicated his desire to withdraw that issue. See AB v. Brown, 6 Vet. App. 35 (1993). Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). If there have been changes in the severity of the disability, the Board will need to "stage" the rating to compensate the Veteran for this, irrespective of whether the rating for the disability is an established rating versus initial rating. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The General Rating Formula for Mental Disorders provides a 100 percent rating for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A Global Assessment of Functioning (GAF) rating is a scale 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 Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF of 41 to 50 contemplates 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 of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Under 38 C.F.R. § 4.126 (a) and (b) consideration is given to the frequency, severity, and duration of psychiatric symptoms as well as the length and capacity for adjustment during periods of remission. While consideration is given to the extent of social impairment, a psychiatric rating will not be assigned solely on the basis of social impairment. It is noted that the use of "such as" in 38 C.F.R. § 4.130 demonstrates that the specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Thus, any analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). A. From August 20, 2003 through December 12, 2010 On review of the evidence outlined below, the Board finds that the Veteran met the requirements contemplated by a 50 percent disability evaluation for the period between August 20, 2003 and December 12, 2010. VA outpatient treatment records dated in 2005 show that the Veteran was working but was otherwise isolated. The Veteran underwent evaluation by Dr. W.R.R., a private psychiatrist, in May 2006. The evaluating psychiatrist initially observed that the Veteran was able to function marginally in his job at that time, primarily because he was left alone. The Veteran lived alone and avoided people almost completely. He was experiencing severe chronic anxiety with considerable thinking difficulty. The thinking difficulty manifested itself primarily in extreme vagueness and sluggishness, as well as some periodic confusion. The Veteran also experienced chronic insomnia with trouble getting to sleep and frequent awakenings. On mental status exam, the Veteran related in a cooperative manner. He was extremely anxious. His thinking was extremely sluggish, disorganized and vague. No hallucinations or delusions were elicited. He was basically friendly and cooperative during the interview. Orientation was intact in all spheres. There was some definite impairment in his concentration and attention span. It was considered difficult to get any comprehensive history from the Veteran due to his pervasive anxiety, which affected all of his mental faculties including his memory. The diagnosis given was of general anxiety disorder, chronic, severe, with some psychotic features (thinking difficulty). In the view of the psychiatrist, the Veteran was "at least seventy percent disabled due to his massive anxiety with some disorganized thinking." Further it was indicated was that he was only able to work very marginally in a menial job. He led a completely isolated lifestyle with no friends or activities. His anxiety was considered chronic and severe, with thinking difficulty which rendered his prognosis as being extremely poor. The Veteran underwent a VA examination for mental disorders in August 2006. It was initially observed that on review of the claims file, the Veteran had not had any psychiatric or mental health treatment since discharge from service, other than when seen at a VA outpatient clinic in 2005 as part of the disability claims process. He was not under any mental health or psychiatric care at that time, and was not taking psychotropic medications. The Veteran did state that he worked 40 hours per week at his job, and that he had not missed any work on his current job due to mental health problems, although this had occurred with previous jobs. He said that he basically had no hobbies or interests. The Veteran rated the severity of his symptoms as "moderate to mild." The frequency of his symptoms was daily. When asked about subjective complaints, he was rather vague in discussing his problems. He said that his sleep was fair. He had had problems with irritability in the past. He also had chronic problems with anxiety. There were no visual or auditory hallucinations or signs of psychosis during the interview. He was not found to be suicidal or a threat to himself or others. His insight was poor. He was able to take care of activities of daily living without assistance. His speech was goal directed. He answered all questions asked, but was not overly spontaneous in conversation. No looseness of association was noted. There was no evidence of thought disorder or psychosis. His behavior in the interview was flat and guarded. He seemed to have underlying irritability although he was superficially cooperative. There was no evidence of overt anxiety although clinical records showed that he had chronic problems with this. He was competent in managing his funds. It was considered as likely as not that his current mental health problems began in the military. There was a dual diagnosis given of mood disorder, not otherwise specified, and of schizoid personality disorder. The features of his mood disorder were of intermittent depression with anxiety. The essential features of his schizoid personality disorder were a chronic pervasive pattern of detachment from social relationships and restricted range of expressions of emotions in interpersonal settings. The assigned Global Assessment of Functioning (GAF) score was 55 to 60. In considering his social impairment, it has been reported that he lived alone and completely avoided people. His symptoms included chronic anxiety, irritability, and a flat affect. He was described as guarded. The VA examiner noted that while he was superficially cooperative, there was underlying irritability. In regard to industrial impairment, the Veteran reported that he worked 40 hours a week and did not miss any days at work. However, in considering his symptoms, it was noted that his chronic anxiety affected his ability to think. As the private physician pointed out, he was marginally employed in a menial job. From the clinical evidence and statements of the Veteran attesting to his mental health problems over the years, it is clear he experienced anxiety, panic attacks, irritability, poor insight, flat affect, as well as other symptoms. Given this, the Board finds that the Veteran's disability picture more nearly approximates the criteria for an increased rating to 50 percent. (Notably, this is the precise rating that the Veteran requested in various documents submitted in 2006 and 2007.) However, the evidence does not warrant the assignment of a 70 percent rating as of August 20, 2003. It is acknowledged that the symptoms listed in the General Rating Formula are examples of the type and degree of the symptoms or effects that would justify a particular rating. See, e.g., Mauerhan. As pointed out by the Court in Mauerhan decision, it is the impact of a Veteran's psychiatric symptoms on occupational and social functioning that is of primary importance. Clearly, by the evidence cited above, the Veteran is not without some clearly recognized symptoms, which the Board believes are of lesser severity than warrants a 70 percent rating. The private psychiatrist identified a "thinking difficulty" attributable to severe chronic anxiety, but this finding is largely contradicted by the August 2006 VA exam report which found cognitive capacity retained. Notably, the Veteran did not have memory loss or difficulty understanding complex commands on either VA or private evaluations. The Board finds the August 2006 VA examination report most probative given that it included a comprehensive mental status evaluation. The VA examiner reviewed the claims file, interviewed and evaluated the Veteran as well as accurately reported his medical history. Conversely, the private examiner did not have access to the claims file, and did not appear to provide a comparable mental status evaluation. The private psychiatrist's outward characterization of the Veteran's condition as warranting a 70 percent disability rating is not in any way determinative upon the Board's decision, particularly as an abstract summary of the extent of service-connected disability not well-supported by the underlying symptomatology shown. See 38 C.F.R. § 4.126(a) (when evaluating a mental disorder, the rating agency shall assign an evaluation 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). In considering his ability to be gainfully employed, it is noted that the Veteran's wages appear to be above the poverty level. See April 24, 2012 TDIU application. While it appears that the Veteran was largely isolated, the assigned evaluation is not to be based solely on the examiner's assessment of social impairment. 38 C.F.R. § 4.126(b). The Board finds that given the Veteran's success in maintaining his full-time job, without interruption, no more than a 50 percent rating is warranted. Furthermore, in considering this grant of a 50 percent rating, the Board has taken his statements (as well as his brother's in a 2011 video conference) into consideration. The Board acknowledges that the Veteran is competent to report symptoms of his psychiatric disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, he is credible in his reports of symptoms and their effect on his activities. In his notice of disagreement (NOD) received in November 2006, the Veteran believed that he met the criteria for a 50 percent rating. Amongst his symptoms, he reported that he had near daily panic attacks. This was echoed in his VA Form 9 received in April 2007, where again he also agreed that his symptoms met the criteria for 50 percent. As noted below, these panic attacks have been described by his brother in his testimony before the Board in 2011. While his panic attacks have been described as daily, they were not to the point of being nearly continual where he was unable to function affectively. As noted above he continued to be able to work. Moreover, although the Board took into consideration the statements of him and his brother in the grant of this 50 percent evaluation, the Board notes that neither the Veteran nor his brother are competent to identify a specific level of disability of his disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's service-connected psychiatric disability has been provided by medical professionals who have examined him. The medical findings directly address the criteria under which this disability is evaluated. The Board finds these records to be the more competent and probative evidence of record, and therefore are accorded greater weight than the Veteran's and brother's subjective complaints and observations of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). In sum, considering the pertinent evidence in light of the applicable criteria and affording the Veteran the benefit of the doubt, the Board finds that no more than a 50 percent rating is warranted for mood disorder from the date of the grant of service connection effective August 20, 2003 to December 12, 2003. B. From December 13, 2010 through April 23, 2010 The Veteran underwent a VA examination on December 13, 2010. At that time, there was still not outpatient treatment or recent hospitalizations for a mental disorder. Objectively, the Veteran was casually dressed, with psychomotor activity and unremarkable speech. Attitude was cooperative and attentive. Affect was appropriate, and mood was anxious. Attention was intact, and the Veteran was well-oriented. Thought process showed circumstantiality, though thought content was normal. There were no delusions or hallucinations. Insight and judgment were present. There was sleep impairment, which interfered with daily activity to a certain point, in that some nights the Veteran awakened and could not re-establish sleep for a couple hours. This was considered a mood cycling insomnia. There was no inappropriate behavior. There were reported panic attacks at times, possibly once per day, which the Veteran was trying to control. He stated that he did not do well in new situations or if there was a crowd, and would have to leave the room even if there with family. There were no suicidal or homicidal thoughts. Extent of impulse control was fair, and there were no episodes of violence. Ability to maintain minimum personal hygiene was present, and there was no problem with activities of daily living. As to memory, remote memory was moderately impaired, recent memory was mildly impaired, and immediate memory was normal. On the Beck Anxiety Index the Veteran scored a result for mild to moderate anxiety. The Veteran was employed 30 hours a week, and had not missed work due to mental health problems. There was a problem noted that was related to occupational functioning of difficulty following instructions. The diagnosis was mood disorder not otherwise specified (anxiety and depression) by history; and schizoid personality by history. The GAF score given was 55. The VA examiner further indicated that the Veteran had worked at the same job since 2002, and did not like change so he stayed in the same job despite not being happy with his work. There were some problems getting along with the supervisor at times. He lived alone. He spent his time outside of work mainly watching television. He did not have friends outside of work. He did not receive any mental health services or take psychotropic medications, although his brother reported that he was in the process of re-establishing mental health services through VA. More recent testing revealed mild to moderate symptoms of anxiety and minimal symptoms of depression. The Veteran and his brother presented sworn testimony at a videoconference hearing conducted in September 2011. The Veteran reported daily panic attacks and sometimes who would get so mad that it caused problems in speech. He would go to movies occasionally. Once a month he volunteered with VA yard sales. His friends were limited to his coworkers. He worked as a general laborer in a kitchen with a major airline. He reported that he was written up only once at work, but he did not remember the reasons. He denied any memory problems except things that happened 20 years previously. The Veteran's brother testified as to the Veteran's symptoms. He reported that the Veteran's anxiety is manifested by pacing. He noted that the Veteran had been pacing the hall since their arrival for the pre-hearing conference with his representative. He pointed out that the Veteran was wearing an old T-shirt, as well as jeans and shoes with holes. The brother indicated that this was his normal attire. When the Veteran was around people including the family, he would pace the floors and become figidity. He further noted that the Veteran's use of the word "friend" is misleading. The Veteran often referred to people whom he simply conversed with, as friends, but he would not actually interact with them. He also described the altercation with his supervisor. The Veteran evidently refused to give the supervisor his identification card, because he felt it was against the rules. The supervisor wrote him up. The brother further noted that the Veteran refused to seek professional medical care for his psychiatric disability. In considering the evidence between December 13, 2010 and April 23, 2012, the overall symptomatology associated with the Veteran's mood disorder does not more closely approximate the schedular criteria required for the next higher 70 percent disability rating. In vacating the Board's decision, the Court pointed out that the Board's prior discussion was limited to whether the Veteran exhibited the symptoms listed in the diagnostic code, rather than discussing the evidence and the effect on the Appellant's symptomatology. As noted in Mauerhan, since it is the effect of the Veteran's symptoms rather than the symptoms themselves that matters, the aforementioned is not determinative. What is determinative, then, is that the Veteran did not experience occupational and social impairment with deficiencies in most areas as a result of his symptoms. Substantial deficiencies in most areas is required, as this is what would be caused by the symptoms listed. Substantial deficiencies with respect to mood are conceded based on the aforementioned. The Veteran indeed generally was anxious or nervous. However, he did not have quite substantial deficiencies in any other area. His judgment was at worst only somewhat deficient on a regular basis. It indeed always was fair. The Veteran's thinking never was substantially deficient. It was unremarkable in being goal-directed. This allowed the Veteran to comprehend normally and respond coherently. He worked from 30 to 40 hours a week. He had only one write up as far as job performance, and he was not fired. There further is no indication that he was demoted, whether forcibly or voluntarily, because he could not complete job tasks successfully. All of this conveys that his deficiencies on the job were not substantial. Finally, the Veteran did not have quite substantial deficiencies with respect to family relations. He had no children. It is reiterated that he lived alone. It further is reiterated that he was close with his brother. He communicated with them and from his brother description he also saw his family, as he socialized primarily with him. Taking the Veteran's symptoms as a whole, GAF scores of 55 were assigned. These scores signify that he consistently had moderate symptoms and that their effect was moderate impairment in occupational and social functioning. They do not signify that he had severe symptoms causing severe impairment in occupational and social functioning. As such, they convey symptoms productive of occupational and social impairment of lesser severity than that with deficiencies in most areas. The opinion that the Veteran's symptoms were mild to moderate and that they had a moderate impact on occupational functioning as well as mild to moderate impact on social functioning conveys the same as does the reference to significant interference with occupational and social activities. Though not determinative, it is significant that the GAF scores, opinion, and reference all are in agreement with the determination that the effect of the Veteran's symptoms was not deficiencies in most areas. Therefore a higher rating than 50 percent is not warranted for this period. C. Since April 24, 2012 On April 24, 2012, the RO received the Veteran's TDIU claim wherein he indicated that his mood disorder rendered him unable to work. He said he had worked as a food worker for 40 hours a week since 2002. The most recent QTC examination was conducted in June 2012. The examiner reported the Veteran's relevant occupational, mental health, and social history. The Veteran continued to live alone with his pet. He was not receiving psychiatric treatment. He last worked in November 2011. He denied suicidal ideations or hallucinations. His symptoms included anxiety, panic attacks, suspiciousness, mild memory loss, mood disturbances, and motivation disturbances. The examiner noted that he had difficulty in establishing and maintaining effective work and social relationships. He had difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner noted that he neglected his personal appearance and hygiene. The examiner remarked that the Veteran has had a marginal work adjustment his entire adult life. He has had numerous jobs but he could not keep them for very long due to his difficulty in relating to others and taking instruction. He had difficulty following direction, adhering to routine, being consistent in job attendance and work performance. His symptoms did not allow him to perform physical and sedentary activities of employment. He needed to seek follow-up treatment. He did not appear to pose any threat of danger to himself or others. The assigned GAF score was 50, indicative of serious impairment. Collectively, since April 2012, the lay and clinical evidence pertinent to this period reflects the Veteran's difficulty in adapting to stressful circumstances (including work or a worklike setting). In this regard, evidence documents the Veteran's irritability, low stress tolerance, and his difficulty concentrating and relating to his family member and former co-workers/supervisors. On evaluation conducted in 2012 the evaluator indicated that the Veteran had occupational and social impairment with deficiencies in most areas, to include as manifested by inability to maintain relationships, consistent with the 70 percent criteria. In addition, symptoms of significant anxiety. Further, the assigned GAF score of 50 is indicative of serious to major social and occupational impairment, which is most consistent with the assignment of a 70 percent rating. However, the evidence does not reflect that, at any point pertinent to the appeal, the Veteran has experienced psychiatric symptoms of the type, and frequency and/or severity as those identified in rating schedule as consistent with the assignment of a 100 percent rating-symptoms such 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 of names of close relatives, own occupation, or own name. The Veteran is capable of performing the activities of daily living and of managing his finances. While some memory and concentration impairment has been noted, it has never been demonstrated by disorientation to time or place; memory loss of names of close relatives, own occupation, or own name. The Veteran has not been shown to be a persistent danger to self or others. The Board further notes that no clinical records or examination reports pertinent to period under consideration include medical comments describing or assessing the Veteran as totally impaired both occupationally and socially due to psychiatric symptoms. The GAF score assigned during this period similarly fail to support such a finding. Again, while the most recent psychiatric evaluation is indicative of serious impairment in social and occupational functioning, it is not reflective of total impairment. Essentially, the evidence reflects symptoms of the type, frequency and/or severity (as appropriate) to indicate occupational and social impairment with deficiencies in most areas, consistent with the assignment of a 70 percent rating, but fails to reveal evidence of symptoms indicative of total occupation and social impairment, warranting a 100 percent rating. In sum, the weight of the evidence is against a finding that the Veteran's symptoms more closely approximate the criteria required for a rating higher than 50 percent from August 20, 2003 through April 23, 2012 and/or higher than 70 percent thereafter. Moreover, the evidence is not so evenly balanced as to allow for the application of reasonable doubt. 38 U.S.C.A. ORDER An initial evaluation for mood disorder for 50 percent, but no higher, from August 20, 2003 to December 12, 2010 is granted, subject to the law and regulations applicable to the payment of monetary benefits. An initial rating in excess of 50 percent for mood disorder, from December 13, 2010 to April 23, 2012, is denied. An initial rating in excess of 70 percent for mood disorder, from April 24, 2012, is denied. REMAND As noted, the Court indicated that the record raised the issue of entitlement to a TDIU. While the RO granted a TDIU, effective in April 2012, the Board must consider the period prior to this date. As pointed out by the Court the private examiner in May 2006 noted that the Veteran was performing marginally at a menial job. A TDIU claim "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). Prior to April 2012, the Veteran's mood disorder (rated at 50 percent) and psoriasis (rated as 10 percent, effective from March 20, 2008) were his only service-connected disabilities. Prior to April 2012, the Veteran did meet the schedular requirements under § 4.16(a). Section 4.16(b), however, allows for extra-schedular consideration of cases in which Veterans are unemployable due to service-connected disabilities but do not meet the percentage standards set forth in § 4.16(a). The Board finds that the private physician's statements evokes consideration of an extra-schedular basis under the provisions of 38 C.F.R. § 3.321(b)(1). Ordinarily, VA's Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The Board is precluded from assigning an extra-schedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). See also Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Accordingly, the claim is REMANDED for the following additional development and consideration: 1. Inform the Veteran of the elements of a claim for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). 2. Then, refer the claim of entitlement to extraschedular consideration for the Veteran's service-connected mood disorder to the Chief Benefits Director of VA's Compensation and Pension Service for consideration of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1), prior to April 12, 2012. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument concerning the claims 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). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs