Citation Nr: 1342889 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 11-33 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected Major Depressive Disorder (MDD), prior to June 28, 2011 and in excess of 50 percent from June 28, 2011. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: John R. Worman, Attorney ATTORNEY FOR THE BOARD Michael J. Adams, Associate Counsel INTRODUCTION The Veteran had active service in the Army from January 2010 to April 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In a November 2011 rating decision, the RO assigned a higher initial disability rating of 30 percent for MDD prior to June 28, 2011 and a 50 percent rating effective June 28, 2011. Accordingly, staged ratings have been created, and the Board has recharacterized this issue as it appears on the first page of this remand, and the Veteran's claim remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993) (in an appeal in which the veteran expresses general disagreement with the assignment of a particular rating and requests an increase, the RO and the Board are required to construe the appeal as an appeal for the maximum benefit allowable by law or regulation). During the pendency of his appeal for an increased initial rating for MDD, the Veteran claimed entitlement to a TDIU. Accordingly, the issue of TDIU is part and parcel of the determination of the initial ratings for the Veteran's service-connected disabilities and is properly before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009) (holding that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities; if the claimant or the record reasonably raises the question of whether the veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted). The Board also acknowledges that the RO has previously denied the Veteran's claim for a TDIU in an April 2012 rating decision, and that the Veteran submitted a notice of disagreement in May 2012. While the RO issued a statement of the case, the Veteran never perfected his appeal by filing a Form 9. However, the issue of entitlement to a TDIU was re-raised by the record in the Veteran's brief, submitted in December 2012. The brief reflects a desire to continue the Veteran's appeal and is therefore construed as a substantive appeal. Additionally, the Veteran submitted a private vocational opinion regarding his employability in November 2012. This opinion constitutes new and material evidence which was submitted within the one year period following the April 2012 rating decision. As such, the claim for entitlement to a TDIU is still on appeal before the Board. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). FINDINGS OF FACT 1. Prior to June 28, 2011, the symptoms of the Veteran's MDD more nearly approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. Beginning June 28, 2011, the symptoms of the Veteran's MDD more nearly approximate occupational and social impairment with reduced reliability and productivity. 3. Beginning October 26, 2012, the symptoms of the Veteran's MDD more nearly approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 4. The evidence of record reflects that the Veteran's service-connected disabilities preclude him from securing and maintaining gainful employment. CONCLUSIONS OF LAW 1. Prior to June 28, 2011, the criteria for an initial rating in excess of 30 percent for MDD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434 (2013). 2. From June 28, 2011 to October 26, 2012, the criteria for an initial rating in excess of 50 percent for MDD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434. 3. Beginning October 26, 2012, the criteria for an initial rating of 70 percent, but no higher, for MDD have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434. 4. The criteria for a TDIU have been met. 38 U.S.C.A. §§ 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Once service connection has been granted, the context in which the claim initially arose, the claim has been substantiated; therefore, additional VCAA notice under § 5103(a) is not required because the initial intended purpose of the notice has been fulfilled, so any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, thereafter, once a notice of disagreement (NOD) has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability, only the notice requirements for a rating decision and SOC described in 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim. 38 C.F.R. § 3.159(b)(3). The RO has provided the Veteran the required statement of the case and supplemental statements of the case, discussing the reasons and bases for not assigning a higher initial rating and citing the applicable statutes and regulations. Therefore, the Board finds the Veteran has been informed of what is necessary to achieve higher ratings for the service-connected disability at issue. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton, 9 Vet. App. 553 (1996). As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the RO obtained the service treatment records, the reports associated with the VA examinations, along with VA treatment records, reports of private medical opinions, and lay evidence. The Veteran was also offered a hearing before the Board but declined. The Veteran was provided with VA examinations in January 2011, June 2011, and May 2012. The Board finds that these examinations are thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiners reviewed the claims file and medical history, and provided the information necessary to evaluate his disability under the applicable rating criteria. Moreover, neither the Veteran nor his representative have objected to the adequacy of the examinations and have not asserted that the Veteran's condition has gotten worse since the May 2012 examination. For the reasons expressed above, the Board finds that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). II. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court held that in initial rating claims evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of separate ratings for distinct periods of time is required (known as "staged ratings"). See Fenderson, 12 Vet. App. at 126. Service connection for MDD was granted in the March 2011 rating decision on appeal with a 30 percent initial rating granted thereafter in the November 2011 rating decision for the period prior to June 28, 2011, and a 50 percent initial rating from June 28, 2011. The Veteran contends that a higher evaluation is warranted both before and after June 28, 2011. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2013). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2013). According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth edition (DSM-IV), a global assessment of functioning (GAF) score reflects the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." DSM-IV, American Psychiatric Association (1994), pp. 46-47; 38 C.F.R. §§ 4.125(a), 4.130 (2013). A GAF score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51-60 represents 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). A GAF score of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well and has some meaningful interpersonal relationships. The Veteran's service-connected MDD has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9434, which provides: A 30 percent disability rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating is warranted when the Veteran experiences 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted when the Veteran experiences 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent disability rating is warranted 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, consideration is given to all symptoms of the Veteran's MDD that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). 38 C.F.R. § 4.125 (2013). If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. 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 Veteran 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 Veteran was provided a VA examination in January 2011. The claims file was reviewed. The Veteran reported the following symptoms of MDD: difficulty sleeping; feelings of hopelessness; depressed mood; weight loss; being angry with regards to his neck injury; low energy level. He also reported that he was single, lived with a friend, had a few close friends, had occasional contact with his father, and maintained a good relationship with his sisters. The mental status examination revealed that the Veteran appeared dysphoric and his affect was constricted. His thought process was unremarkable with no evidence of delusions or hallucinations. His judgment was intact. Grooming and hygiene were appropriate and speech and communication were appropriate. There was no panic or obsessional rituals and no suicidal ideation. The diagnosis was listed as adjustment disorder, with depressed mood, chronic. The examiner listed a GAF score of 70 for the Veteran's MDD. The examiner also noted that the Veteran was not employed and opined that his MDD was most likely related to his claimed spinal injury. The Veteran was provided a second VA examination in June 2011. The claims file was reviewed. The Veteran reported depression, loss of all energy, trouble sleeping, feelings of hopelessness, and distancing himself from his family and friends. The mental status examination revealed that the Veteran appeared depressed and his affect was tearful. His thought process was unremarkable with no evidence of delusions or hallucinations. His judgment was intact. Speech and communication were appropriate. The Veteran was unable to maintain minimum hygiene and his memory was mildly impaired. There was no panic or obsessional rituals and no suicidal ideation. The diagnosis was listed as MDD, single episode, moderate. The examiner opined that the Veteran's depression symptoms appeared to be more severe as compared to his last VA examination in January 2011. He also opined that the Veteran's symptoms have increased in severity to meet the criteria for MDD and that his individual unemployability is less likely as not related to his MDD. Rather, the Veteran reported that he would like to work if he was physically able to. The examiner reported that there were deficiencies in family relations, work and mood and that the Veteran had poor concentration and short-term memory. A GAF score of 60 was reported. A VA treatment report from October 2011 reflects a GAF score of 55. The report also reflects that the Veteran reported symptoms of difficulty sleeping, trouble concentrating, and low energy level. The Veteran appeared depressed and his affect was irritated, dysphoric and mildly restricted. Speech was clear, coherent, relatively goal directed, and his memory was grossly intact. The Veteran was provided a third VA examination in May 2012. The Veteran reported symptoms of depression, chronic sleep impairment, nightmares, anxiety, mild memory loss, disturbances of motivation and mood, suicidal ideation (passive), intermittent inability to perform activities of daily living, feelings of hopelessness, feelings of guilt, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and appetite disturbance or weight loss. The report reflects that the Veteran experienced occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran's speech was normal, there were no signs of delusions or hallucinations, or thought disorder. The Veteran's concentration was poor. The examiner opined that the Veteran's reported status was about the same as it was at his June 2011 VA examination. The examiner also noted that the Veteran had exaggerated his symptoms on the Minnesota Multiphasic Personality Inventory (MMPI-2), a personality test, which made accurate assessment of his current mental health status tenuous at best. A GAF score of 52 was reported. Finally, the Veteran submitted a private medical opinion in October 2012. The examiner reviewed the claims file. The examination report reflects that the Veteran endorsed MDD symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, inability to establish and maintain effective relationships, difficulty dealing with stress, difficulty establishing and maintaining effective work and social relationships, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living. The examiner reported that the Veteran experienced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment thinking and/or mood. He also noted that the Veteran required daily assistance from his roommate and that he typically does not leave the house and avoids social contact. The examiner opined that the Veteran's depression has gradually gotten worse, due largely to his physical limitations and that its impact upon his occupational and social functioning is marked, with deficiencies consistent with a rating of 70 percent. A GAF score of 42 was reported. The Veteran has been assigned an initial 30 percent disability rating, effective December 13, 2010, and assigned an initial 50 percent disability rating for his MDD, effective June 28, 2011. Fenderson v. West, 12 Vet. App. 119 (1999). The Board finds that the evidence appropriately reflects these disability ratings for these periods and that a 70 percent rating is warranted effective October 26, 2012. After careful consideration, the Board finds that the criteria for a rating in excess of 30 percent prior to June 28, 2011 for MDD symptoms have not been met. 38 C.F.R. § 4.130, DC 9434. The January 2011 VA examination report reflects that during this period the Veteran experienced difficulty sleeping, depressed mood and weight loss. His psychiatric symptoms associated with MDD did not result in significant communication or cognitive impairments during this period and a GAF score of 70 was reported, indicating that the Veteran's symptoms were mild during this period. The Veteran lived with a friend, maintained a good relationship with his sister, kept in touch with his father, and had a few close friends. Moreover, while the Veteran was not employed at the time, the examiner reported that his symptoms were not severe enough to interfere with occupational and social functioning. As the Veteran's symptoms of MDD more closely approximate a 30 percent rating, a higher rating is not warranted for this period. The Board also finds that the criteria for a rating in excess of 50 percent prior to October 26, 2012 for MDD symptoms have not been met. Id, DC 9434. The June 28, 2011 VA examination report reflects that the Veteran's mood was depressed with a tearful affect. He also reported increased isolation from his family and friends but continued to reside in his home with a male friend. The Veteran reported having only slight to moderate problems with daily living activities and mild memory impairment. The examiner reported that the Veteran experienced occupational and social deficiencies in his work, family relations, thinking, and mood. However, it was noted that the Veteran's work difficulty was the result of his neck injury, not his MDD, and that the Veteran would like to work if he were physically able to. A GAF score of 60 was reported which reflects mild to moderate impairment of social and occupational functioning and is also more consistent with a 50 percent rating than a higher rating. The October 2011 VA clinical report also reflects social and occupational impairment that more closely approximate a 50 percent rating for MDD. The report reflects that the Veteran's MDD symptoms were mild to moderate with a GAF score of 55 assessed. Critically, the Veteran also reported not wanting to be more active because he did not want to do anything that would jeopardize his increase in disability rating. Additionally, the May 2012 VA examination report depicts a level of impairment that more closely approximates a 50 percent rating. While the examiner reported severe credibility issues with the Veteran's endorsement of symptoms, the Board finds that even assuming the Veteran accurately reported his symptomatology, a higher disability rating would not be warranted at this time. Specifically, while the Veteran reported that he no longer maintained a relationship with his sisters, he also reported living with his friend, with whom he interacted with daily, and his friend's mother. The examiner noted that his willingness to engage in activities was limited; however, the examiner also opined that the Veteran experienced occupational and social impairment with reduced reliability and productivity, and assessed a GAF score of 52. Theevidence for this period reflects that the Veteran's symptoms were productive of moderate impairment of social and occupational functioning. While he was not employed, the Veteran reported only moderate impairment of his daily activities, and did not report symptoms, such as obsessive behaviors, that interfered with his ability to function independently. It was also noted that his neck disability was a significant source of his occupational functional impairment. It is also clear that the Veteran experienced increased social isolation during this period. However, as described, he continued to maintain an active relationship with this roommate. More importantly, the Veteran asserted that he did not want to engage in any activity that would jeopardize a higher disability rating, which may account for a decrease in his willingness to engage in social and occupational activities. The decribed level of occupational and social impairment are also supported by the GAF scores of 60, 55, and 52, along with the May 2012 VA examiner's findings that the Veteran's occupational and social impairment were relatively minor. As such, the Veteran's occupational and social impairment more closely approximate a 50 percent rating for MDD for this period. Finally, the Board finds that the criteria for a rating of 70 percent, but no higher, have been met beginning October 26, 2012. Id, DC 9434. The October 26, 2012 private medical opinion reflects that the Veteran's MDD symptoms were productive of social and occupational impairment with deficiencies in most areas. The private examiner opined that the Veteran's social and occupational deficiencies were consistent with a 70 percent rating, and indicated that he experienced deficiencies in most social and occupational areas such as work, family relations, and mood. Specifically, the Veteran endorsed symptoms of mild memory loss, flattened affect, impaired judgment, impaired abstract thinking, disturbances of mood, difficulty adapting to stressful circumstances, difficulty establishing and maintaining effective work and social relationships, and an inability to establish and maintain effective relationships. The Veteran reported requiring significant daily assistance from his roommate with activities of daily living. He also reported avoiding social contact. Furthermore, the examiner assessed a GAF score of 42 which reflects serious social and occupational impairment. As such, the Board finds that the Veteran's MDD symptoms most closely approximate a 70 percent rating, and no higher, beginning October 26, 2012. Finally, the Veteran is not entitled to a 100 percent rating for any period of time covered by the appeal. In this regard, the evidence of record does not demonstrate total occupational and social impairment as a result of his service-connected MDD. There is no indication that the Veteran's MDD has manifested in symptoms productive of functional impairment comparable to such level of impairment. As examples, there has been no demonstration of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. The evidence shows that the Veteran continued to live with and have regular interactions with his roommate and his roommate's mother during this period. While the evidence reflects that the Veteran would have a difficult time dealing with the normal pressures and stresses of a job, the evidence also reflects that the Veteran's service connected cervical disability has been a significant factor in limiting his ability to work, and that the Veteran would like to return to work if he were physically able to. Accordingly, a 100 percent rating is not warranted for any period of time covered by this appeal for MDD. 38 C.F.R. § 4.130. III. Extraschedular Consideration An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1) (2013). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The schedular rating in this case is adequate. The diagnostic criteria contemplate and adequately describe the symptomatology of the Veteran's service-connected MDD. See Thun, 22 Vet. App. at 115. The Veteran's MDD is evaluated by the rating criteria which specifically contemplate the level of occupational and social impairment caused by this disability. See 38 C.F.R. § 4.130, Diagnostic Code 9434. When comparing the Veteran's psychiatric symptoms and social and occupational impairment with the schedular criteria, the Board finds that his symptoms are congruent with the disability picture represented by the ratings assigned and he does not have symptoms associated with this disability that have been unaccounted for by the schedular rating assigned herein. See 38 C.F.R. § 4.130, Diagnostic Code 9434. Accordingly, a comparison of the Veteran's symptoms and functional impairments resulting from MDD with the pertinent schedular criteria does not show that his service-connected MDD presents such an exceptional or unusual disability picture...as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b). Ultimately, the Veteran's disability picture is contemplated by the Rating Schedule, and no extraschedular referral is required. IV. TDIU In this decision, the Board grants entitlement to a TDIU, which constitutes a complete grant of that claim. Therefore, in view of the fact that the full benefit sought by the Veteran is being granted by this decision, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided that, if there is only one such disability, this disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a); see also 38 C.F.R. §§ 3.340, 3.341. For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. 38 C.F.R. § 4.16(a). In this case, service connection is in effect for a cervical spine disability, rated at 10 percent disabling; MDD rated at 70 percent (as of October 26, 2012); right arm radiculopathy rated at 0 percent disabling; and headaches rated as 10 percent disabling. The combined evaluation for these disabilities is 80 percent, and they are of a common etiology. Furthermore, the combined evaluation for these disabilities was no lower than 60 percent at any time during the period on appeal. As such, the minimum schedular criteria for TDIU are met for the period on appeal. 38 C.F.R. § 4.16(a). Moreover, the Board finds that the probative and persuasive evidence reflects that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. The Veteran has asserted that he is no longer able to work as a result of the injuries sustained during service. In support of his claim the Veteran submitted a November 2012 private vocational consultant opinion as to the employability of the Veteran. The consultant reviewed the claims file including the October 2012 private medical opinion and the June 2011 VA examination. It was noted that the Veteran was no longer working full-time due to his physical and emotional symptoms. The consultant opined that the Veteran was totally unable to sustain employment due to the severity of his service-connected MDD and the severe symptoms associated with the diagnosis. She further concluded that his physical limitations and pain also contribute to his unemployability and worsen his emotional symptoms. The private consultant's opinion is well-reasoned and based on a review of the evidence. Thus, the Board finds the private consultant's opinion to be highly probative. Moreover, there are no negative opinions of record indicating that the Veteran is employable. As such, the probative evidence weighs in favor of finding the Veteran unable to secure and follow a substantially gainful occupation. Therefore, entitlement to a TDIU is warranted. ORDER Entitlement to an initial rating in excess of 30 percent for MDD prior to June 28, 2011, is denied. Entitlement to an initial rating in excess of 50 percent for MDD from June 28, 2011 to October 26, 2012, is denied. Entitlement to an initial rating of 70 percent, but no higher, for MDD beginning October 26, 2012, is granted. Entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits. ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs