Citation Nr: 1343306	
Decision Date: 12/30/13    Archive Date: 01/07/14

DOCKET NO.  10-06 941	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Hartford, Connecticut


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for hepatitis B, prior to November 13, 2012.

2.  Entitlement to a rating in excess of 20 percent for hepatitis B, from November 13, 2012.

3.  Entitlement to an initial rating in excess of 30 percent for depressive disorder, prior to November 13, 2012.

4.  Entitlement to a rating in excess of 50 percent for depressive disorder, from November 13, 2012 

5.  Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU).

6.  Entitlement to an effective date earlier than February 17, 2009 for the award of service connection for depressive disorder.  

REPRESENTATION

Appellant represented by:	Mary Anne Royle, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

April Maddox, Counsel


INTRODUCTION

The Veteran served on active duty from October 1976 to October 1979.

This appeal to the Board of Veterans' Appeals (Board) arose from RO rating decisions dated in October 2008, February 2010, and December 2012. 

In an October 2008 rating decision, the RO granted service connection and assigned an initial 10 percent rating for hepatitis B, effective August 12, 1998.  In February 2009, the Veteran filed a notice of disagreement (NOD) with the assigned rating.  The RO issued a statement of the case (SOC) in January 2010.  The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in February 2010. 

In a February 2010 rating decision, the RO denied a TDIU.  In March 2010, the Veteran filed a NOD.  The RO issued a SOC in June 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in July 2010. 

In June 2011, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record.  

In June 2012, the Board remanded the hepatitis B and TDIU claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development.  After attempting to accomplish the requested action (the issuance of a notice letter to the appellant, the receipt of VA treatment records, and scheduling VA examinations), the AMC continued to deny the hepatitis B and TDIU claims (as reflected in a May 2013 supplemental SOC (SSOC)), and returned these matters to the Board for further appellate consideration.

In a December 2012 rating decision, the RO granted service connection for depressive disorder, assigning a 30 percent rating from February 17, 2009 and a 50 percent rating from November 13, 2012.  The RO also increased the Veteran's disability rating for hepatitis B to 20 percent, effective November 13, 2012.   In February 2013, the Veteran filed a NOD.  The RO issued a SOC in March 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in April 2013. 

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veteran's claim.  A review of the documents in such folder reveals VA outpatient treatment records dated through October 2012 which were considered by the RO in the most recent May 2013 SSOC.

As the claims pertaining to hepatitis B and depressive disorder involve requests for higher initial ratings following the award of service connection, the Board has characterized these claims in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disabilities).  Moreover, although the RO awarded a higher rating for each disability from November 13, 3012, as higher ratings for each disability is available prior to and since that date, and the Veteran is presumed to seek the maximum available benefit for a disability, the Board has now characterized the appeal as to these disabilities as encompassing the first four matters set forth on the title page.  Id.; AB v. Brown, 6 Vet. App. 35, 38 (1993).  As the claims for higher ratings prior to November 13, 2012 are the same claims characterized by the RO as claims for earlier effective dates for the 20 and 50 percent ratings for hepatitis B, the Board finds that the Veteran is not prejudiced by the Board's characterization of the higher rating claims in this regard.  

The Board's decision on the claims for a higher initial rating for hepatitis B, a higher initial rating for depressive disorder is set forth below.  The remaining claims regarding entitlement to a TDIU and entitlement to an effective date earlier than February 17, 2009 for the award of nservice connection for depressive disorder-for which the Veteran has completed the first of two actions required to place this matter is appellate status-are addressed in the remand following the order; these matters are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran when further action, on his part, is required.

As a final preliminary matter, iIn October 2012 correspondence, the Veteran's representative raised the issue of entitlement to service connection for poor health due to exposure to contaminated water while the Veteran was stationed at Camp LeJeuune in North Carolina from May 1977 to July 1979.  This issue has not been adjudicated by the RO.  Therefore, the Board does not have jurisdiction over it, and it is referred to theRO for appropriate action.  


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 

2.  Prior to October 1, 2003, the service-connected hepatitis B was manifested by intermittent episodes of fatigue, malaise, and joint pain.  However, daily episodes of fatigue, malaise, and anorexia and incapacitating episodes of fatigue, weakness, malaise, anorexia, mild weight loss, and right upper quadrant discomfort or minimal liver damage and symptoms requiring dietary restriction or other therapeutic measures were not shown. 

3.  Since October 1, 2003, the service-connected hepatitis B has been manifested by intermittent (and not daily) fatigue, malaise, and joint pain.  However, minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance necessitating dietary restriction or other therapeutic measures or incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12-month period has not been shown.

4.  Since the February 17, 2009 effective date of the award of service connection for depressive disorder, the Veteran's psychiatric symptoms have primarily included depressed mood, disturbances of motivation and mood, and chronic sleep impairment; collectively, these symptoms suggest occupational and social impairment with reduced reliability and productivity.  There is no evidence of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

5.  The schedular citeria are adequate to rate the disability under consideration at all points pertinent to this appeal.


CONCLUSIONS OF LAW

1.  The criteria for an initial disability rating in excess of 10 percent for hepatitis B, prior to October 1, 2003, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code (DC) 7345 (prior to and from July 2, 2001). 

2.  Beginning October 1, 2003, the criteria for 20 percent but no higher rating for hepatitis B are met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code (DC) 7345 (2001); & 38 C.F.R. § 4.114, DC 7345 (prior to and from July 2, 2001).

3.  Resolving all reasonable doubt in the Veteran's favor, the criteria for an initial, 50 percent, rating for depressive disorder, from August 12, 1998, are met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2013).

4.  The criteria for a rating for depressive disorder in excess of 50 percent are not met at any pertinent point,  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) include enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1).

In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC).  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Sec'y of Veterans Aff., 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.  

With regard to hepatitis B, February 2005 and April 2008 pre-rating letters notified the Veteran as to what information and evidence was needed to satisfy the elements of what was then a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  These letters also informed the Veteran to submit any evidence in his possession pertinent to the claim (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect).  After the RO's award of service connection for hepatitis B, and the Veteran's disagreement with the initial rating assigned, no additional VCAA notice letter notice for the downstream higher rating issue was required under 38 U.S.C.A. § 5103A . See VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004)).  However, the January 2010 SOC set forth the criteria for a higher rating for this disability (the timing and form of which suffices, in part, for Dingess/Hartman).

With regard to depressive disorder, an October 2009 pre-rating letter notified the Veteran as to what information and evidence was needed to satisfy the elements of what was then a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  This letter also informed the Veteran to submit any evidence in his possession pertinent to the claim (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect).  After the RO's award of service connection for depression disorder, and the Veteran's disagreement with the initial rating assigned the March 2013 SOC set forth the criteria for higher ratings for this disability and what was necessary to establish an earlier effective date for the 50 percent rating assigned for depressive disorder beginning November 13, 2012.  
  
The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided.  Pertinent medical evidence associated with the claims file consists of service treatment records, VA medical records, private medical records, Social Security Administration (SSA) records, and the reports of various VA examinations.  The Board also finds that no further RO action, prior to appellate consideration, is required.  The Veteran has not identified any additional records that are relevant to his rating claims on appeal, and the Board finds that no additional RO action to further develop the record in connection with any matter herein decided, prior to appellate consideration, is required.  

In particular, the Board notes that the Veteran has-been afforded adequate VA examinations in November 2012, March 2013, and April 2013, the reports of which reflect consideration of all relevant evidence of record and contain sufficient detail upon which to rate his service-connected disabilities.  

As for the Veteran's June 2011 Board hearing, the Board notes that the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2)  requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010). 

Here, during the June 2011 hearing, the undersigned Veterans Law Judge enumerated the issues on appeal.  See Hearing Transcript (T.) at p. 2.  Also, information was solicited regarding the current symptoms of his hepatitis B disability and whether there were any outstanding medical records available.  See T. at p. 3-17.  Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained.  See Bryant, 23 Vet. App. at 497.  Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted.  Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the appellant's claim for an increased rating for his hepatitis B and entitlement to a TDIU (the only issues that were on appeal at the time of the June 2011 hearing).  As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that the hearing was legally sufficient. 

Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any existing, pertinent evidence, apart from the unavailable records noted above, that has not been obtained.  The record also otherwise presents no basis for further development to create any additional evidence to be considered in connection with either matter currently under consideration.

In summary, the duties imposed by the VCAA have been considered and satisfied.  The Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture.  See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).


II.  Higher Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate DCs identify the various disabilities.  When a question arises as to which of two ratings apply under a particular DC, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.

A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, where, as here, the question for consideration is entitlement to  higher ratings following the initial awards of service connection, evaluation of the medical evidence to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126.

Here, as the RO/AMC has already assigned staged ratings for the Veteran's hepatitis B and depressive disorder, the Board will consider the propriety of the rating at each stage, as well as whether any, or any further, staged rating is warranted.  
 
A.  Hepatitis B

The record reflects that in February 1977, during the Veteran's military service, he was noted to have a positive hepatitis-associated antigen after a blood donation.  In January 1978 a positive hepatitis-associated antigen was again noted.  Post-service private treatment records show that in October 1996 he was found to have abnormal liver function stigmata of chronic liver disease and he was subsequently diagnosed with hepatitis B in February 1998.  The Veteran filed a claim for service connection for hepatitis B in August 1998 and, while the claim was originally denied, by rating decision dated in October 2008, service connection for hepatitis B was granted and a 10 percent disability rating was assigned effective August 12, 1998.  The Veteran perfected an appeal of this decision and, subsequently, by rating decision dated in December 2012, the RO increased the Veteran's disability rating for hepatitis B to 20 percent effective November 13, 2012.  

The Veteran seeks an initial rating higher than 10 percent for his hepatitis B and a rating higher than 20 percent beginning November 13, 2012.  He contends that fatigue and incapacitating episodes associated with his hepatitis B have prevented him from being able to work since 2003, and that he is therefore entitled to higher ratings both before and after November 13, 2012.  Significantly, the Veteran notes that his hepatitis B symptoms increased significantly when he began taking the drug, Interferon, in 2003.  

Significantly, in June 2011 the Veteran submitted an opinion letter from a private registered nurse consultant who provided a longitudinal review of the Veteran's medical history with respect to his hepatitis B.  The nurse indicated that the Veteran had a long-standing history of incapacitating symptoms/conditions, to include: daily fatigue, depression, joint and back pain, chronic gastritis with ulcers, arthralgia and polyarthralgia, abdominal cramps (to include right upper quadrant pain), michrohematuria, restriction of activities of daily living and moderate liver damage.  

The criteria for rating disabilities of the liver were revised during the pendency of the Veteran's appeal, effective July 2, 2001.  See Schedule of Rating Disabilities: Disabilities of the Liver, 66 Fed. Reg. 29488  (May 31, 2001).  As there is no indication that the revised criteria are intended to have retroactive effect, the Board has the duty to adjudicate the claim only under the former criteria for any period prior to the effective date of the new DCs, and to consider the revised criteria for the period beginning on the effective date of the new provisions.  See Wanner v. Principi, 17 Vet. App. 4, 9 (2003); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997).  See also VAOPGCPREC 3-2000 (2000) and 7-2003 (2003).  The retroactive reach of the revised regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change.

In this case, the RO and the AMC have considered the claim for a higher rating under both the former and revised applicable criteria, and has given the appellant notice of both criteria (see January 2010 SOC).  Hence, there is no due process bar to the Board also considering the claim in light of the former and revised applicable rating criteria, as appropriate.

The Veteran's hepatitis B is currently rated as 10 percent disabling under the new diagnostic criteria of DC 7345, which pertains to chronic liver disease without cirrhosis (including hepatitis B, chronic active hepatitis, autoimmune hepatitis, hemochromatosis, drug-indiced hepatits, etc., but excluding bile duct disorders and hepatitis C).  See 38 C.F.R. § 4.114, DC 7345 (2012).  

Prior to July 2, 2001, a 10 percent rating was warranted under DC 7345  when there was evidence of demonstrable liver damage with mild gastrointestinal disturbance.  A 30 percent rating was warranted for infectious hepatitis where there was minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance of lesser degree and frequency but necessitating dietary restriction or other therapeutic measures.  A higher rating of 60 percent was warranted for moderate liver damage and disabling recurrent episodes of gastrointestinal disturbance, fatigue, and mental depression.  A 100 percent rating was warranted for marked liver damage manifest by liver function test and marked gastrointestinal symptoms, or with episodes of several weeks duration aggregating three or more a year and accompanied by disabling symptoms requiring rest therapy. 38 C.F.R. § 4.114, DC 7345 (2001). 

Effective July 2, 2001, the rating criteria for chronic liver disease without cirrhosis (including hepatitis B, chronic active hepatitis, autoimmune hepatitis, hemochromatosis, drug-induced hepatitis, etc., but excluding bile duct disorders and hepatitis C) were amended to provide for a 10 percent evaluation when there is evidence of intermittent fatigue, malaise, and anorexia or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period.  The next higher rating of 20 percent necessitates daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period.

A 40 percent rating requires daily fatigue, malaise, and anorexia, with minor weight loss and hepatolomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period.  A 60 percent rating is warranted for daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatolomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks, but not occurring constantly.  A 100 percent rating is warranted for near constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). 38 C.F.R. § 4.114, DC 7345 (2012).  

For purposes of evaluating conditions under DC 7345, "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. 38 C.F.R. § 4.114, DCs 7345 and 7354, Note 2.

Evidence relevant to the severity of the Veteran's hepatitis B includes VA examination reports dated in December 1998, March 2005, July 2008, October 2009, and November 2012.  During the December 1998 VA examination, the Veteran reported experiencing fatigue since 1997.  He complained of feeling tired and indicated that he had to change positions with his job at the United States Postal Service from letter carrier, which was full time, to a mail handler, which was part time.  He also complained of multiple joint pains, mostly in the morning, which usually wear off as the day goes on.  The Veteran reported that his doctors attributed this to his hepatitis B.  He denied nausea or vomiting.  He reported three bouts of diarrhea each week, usually soft, sometimes watery, but not usually smelly.  He had episodes of dark urine in the past, the last one was several weeks ago.  He had one episode of jaundice in 1997.

With regard to vomiting, hematemesis, and melena, the Veteran stated that he had one bout of melena in the early 1990s, which he had a colonoscopy for, and had none since.  He denied hematemesis or vomiting.  With regard to current treatments for his hepatitis B, the Veteran indicated that he was not currently getting any treatment for his hepatitis.  He was being followed regularly by the liver specialist at Yale every four weeks and had no dietary restrictions.  He reported some mild distention of his stomach every other day with some mild campiness which lasted for a couple of hours.  There was no nausea of vomiting and he denied treatment for this.  With regard to fatigue the Veteran denied weakness and there were no complaints of depression or anxiety.  

On physical examination, the Veteran did not have any ascites and his weight had been stable.  The Veteran weighed 191 pounds during the examination and indicated that his weight had been between 190-200 pounds for the last two years.  He had no steatorrhea and there were no signs of malabsorption or malnutrition.  With regard to hematemesis or melena, he had one episode of melena many years ago and none since.  There was no hematemesis.  With regard to pain or tenderness, he reported some mild right upper quadrant tenderness to palpation with no rebounding or guarding.  The liver was normal by size and examination.  He had no superficial abdominal veins and there was no edema in his ankles.  With regard to muscle strength, the Veteran had normal muscle strength, 5/5 bilaterally, in his upper and lower extremities and there was no wasting.  On rectal examination his guaiac was negative with brown stool.  There were no hemorrhoids and his prostate was normal size and nontender.  The impression was hepatitis B, chronic and persistent, by the Veteran's history.  

During the March 2005 VA examination the Veteran denied any bleeding dyscrasias and also denied having sickle cell disease.  He had no episodes of melena, abdominal pain.  He also denied any hematological diseases or infections,  leukemias, or other cancers.  His major complaint was fatigue.  He denied a history of vasculitis or kidney disease, weight gain or loss, and also denied nauseousness and vomiting.  He did report incapacitating episodes as a result of the hepatitis, secondary to treatment with Lamivudine.  He had chronic joint pains and malaise and could only work part time at his present job lifting heavy boxes at a local store.  The joint pains were in his upper and lower extremities.  He denied any dietary restrictions.  

The examiner noted that the Veteran underwent a liver biopsy in March 2003 which confirmed chronic hepatitis with lobular activity grade 2, portal and periportal fibrosis with a suggestion of bridging stage 2 and 3.  His hepatitis serologies had been consistently positive suggesting he was a chronic carrier of hepatitis B.  A liver biopsy was done in 1997 and 2003 which confirmed the diagnosis.  He had been on Interferon, however, this was discontinued as it was no effective and resulted in worsening side effects.  

On physical examination, the examiner noted that the Veteran was 190 pounds and obese.  There was no stigmata of liver disease.  Liver span was approximately 8 centimeters to 9 centimeters without a palpable spleen.  There was no tenderness and no rebound.  With regard to the extremities there was no edema and no cutaneous stigmata in his hands of chronic liver disease.  The assessment was hepatitis B, chronic, and currently on treatment.  It was indicated that the Veteran would need to continue medication indefinitely.  The examiner wrote that, as a result of the Veteran's chronic hepatitis B, he had moderate to severe functional limitations in his individual activities of daily living.  

During the July 2008 VA examination the examiner reviewed the claims file and noted that the Veteran began Adefovir therapy in October 2006.  It was indicated that the Veteran was noncompliant from February 2007 to June 2007 but showed good response when therapy re-started.  The Veteran indicated that he had been compliant with his medication without missing a dose.  The Veteran reported that he felt well.  He denied fevers, abdominal pain, hematemesis, melena, and jaundice.  It was noted that the Veteran was developing resistance to Adefovir and it was recommended that the Veteran add Entecavir to his therapy.  Upon review of the claims file the July 2008 VA examiner indicated that the Veteran did not have "incapacitating episodes."  

During this examination the Veteran complained of daily non-debilitating fatigue.  He indicated that it was hard for him to get up in the morning.  There was no reported malaise, anorexia or weight loss, right upper quadrant pain, or hepatomegaly.  The Veteran also complained of daily non-debilitating joint pain, particularly in the morning involving his ankles, knees, and elbow.  The Veteran reported that pain medication helped and that he was being treated for polyarthralgia of the hands and feet as well as chronic low back pain.  The examiner noted that the Veteran primarily complained of intermittent knee arthralgia with no obvious acute knee injury and indicated that the Veteran's joint pains were most likely due to degenerative joint disease.  

With regard to the Veteran's occupational functioning and daily activities, it was noted that the Veteran worked at the post office for 18 years and was then fired due to his disabilities - depression, neck and back, and hepatitis.  In 2003, he stated that he had chronic joint pains and malaise and could only work part time at his present job lifting heavy boxes at a local store.  During the July 2008 VA examination the Veteran reportedly worked one to two days as a dispatcher and was able to do the job although he indicated that he was "hard to get up."  The Veteran indicated that he was able to drive and perform activities of daily living.  

On physical examination of the abdomen there was no evidence of tenderness and/or organomegaly, no ascites, no evidence of portal hypertension, no other signs of liver disease, and no evidence of malnutrition.  A computed tomography (CT) scan revealed no radiologic evidence of cirrhosis.  

During an October 2009 VA general examination the Veteran reported that he was unable to work due to joint pain and depression secondary to his hepatitis B.  He indicated that his joint pain was in his ankles and elbows.  He usually awaked with stiffness in the morning which improved as the day progressed.  He stated that he experienced joint pain since 1998.  He used a cream as well as a calcium/magnesium supplement which he felt helped somewhat.  He also reported back pain which he had been experiencing for four years and had been receiving physical therapy for his back since 2008.  The Veteran felt that his joint pain was related to his hepatitis B which was untreated until 1998.  He indicated that his low back discomfort and ankle/knee pain had previously been a 6 to 7 out of 10 in severity but was currently a 7 to 8 out of 10 in severity.  For all of his joint pain, it was worse in the morning and improved as the day continued.  

Following discharge from the military, the Veteran was employed in security, making rounds and watching cameras/performing escorts.  He stated that he worked in this capacity for 20 years, part time.  He was employed full time as a postal carrier from 1997 until 2005 but stopped working in 2005 due to side effects from treatment with Interferon.  He stated that he also had chronic pain in his back and knees.  Other than joint pain, he reported some drowsiness from his hepatitis B medications (Adefovir currently).  The Veteran reported that if he were allowed to stretch periodically, he probably would be able to perform a sedentary job.  The Veteran indicated that he would consider vocational rehabilitation if offered.  

With regard to fatigue, the Veteran reported that he woke up every day feeling fatigued.  He fell asleep easily during the day and also reported a long history of snoring.  

On physical examination it was reported that the Veteran weighed 217 pounds.  Of note, the Veteran was only 200 pounds in February 2009 (eight months earlier) so there was a significant weight gain in the last year.  The Veteran's nutritional status was reported to be "obese."  With regard to the hemic and lymphatic systems there was no LAN (lymphadenopathy), tenderness, suppuration, edema, or pallor.  With regard to the abdomen, these was obese, symmetrical, softly distended, with normoactive BS (bowel sounds) throughout.  There was no organomegaly, hernias, masses, or bruits.  

The examiner indicated that the Veteran's chronic hepatitis B was improved on current antiviral treatment with no evidence of HCC.  The examiner wrote that this was unlikely preventing the Veteran from obtaining gainful employment and that the subjective history was of moderate impairment.  The examiner also wrote that the Veteran had OSA (obstructive sleep apnea) by history, as likely as not secondary to obesity and likely the etiology of the Veteran's fatigue which was contributing to the Veteran's subjective report of inability to work.  Finally, the examiner wrote that the Veteran had polyarthralgias/degenerative changes of the bilateral knees and spine, more likely related to the Veteran's prior employment and unlikely a sequelae of the Veteran's hepatitis B infection.  Significantly, it was noted that the Veteran reported that it was his arthritis which prevented him from working and that this was a mild to moderate functional impairment overall.   

During the November 2012 VA hepatitis examination it was noted that the Veteran's antiviral medication to treat his hepatitis B was discontinued in 2010 due to elevations in lover transaminase levels.  Since the October 2009 VA examination, co-managed care through the VA system had been followed by the liver clinic until 2010, which was the last documented VA liver clinic appointment on record.  The Veteran reported that he saw a private doctor for liver issues and, of late, lab analysis and abdominal ultrasound had been completed.  According to the Veteran, his private physician was contemplating  starting antiviral medication to suppress elevated viral loads.  The Veteran's last liver biopsy was in 2004 with no new recommendations for new testing.  Imaging surveillance indicated no liver hepatoma.  It was indicated that the next follow-up would be January 2013 at which time medication management would be re-addressed with the liver clinic private physician per the Veteran's report.  

The examiner noted that continuous medication was not required for control of the Veteran's liver conditions.  The examiner did note that the Veteran had signs or symptoms attributable to chronic or infectious liver diseases.  Specifically, it was noted that the Veteran experienced daily fatigue, malaise, and arthralgia.  There was no evidence of anorexia, nausea, vomiting, weight loss, right upper quadrant pain, or hepatomegaly.  The examiner noted that the Veteran had suffered from incapacitating episodes with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain due to liver conditions during the last 12 months.  Specifically, the examiner noted that the total duration of the incapacitating episodes in the last 12 months was "at least 2 weeks but less than 4 weeks."  It was noted that the Veteran was not currently hospitalized awaiting transplant and had not undergone liver transplant.  It was also noted that the Veteran had not experienced an injury to the liver.  

With regard to the functional impact of the Veteran's hepatitis B on his ability to work, it was noted that the Veteran's daily fatigue, malaise, and multiple arthralgias prevented the Veteran from working as a postal worker since 2003.  The Veteran worked in security services from 2003 to 2007 and was awarded Social Security disability benefits in 2007.  

With regard to the Veteran's activities of daily living, the examiner wrote that the Veteran was able to perform all activities of daily living without impairment.  He was able to perform all sedentary tasks but was unable to walk for prolonged periods or stand for prolonged periods without rest breaks.  He was unable to carry, push, pull, or lift loads greater than 20 pounds repetitively.  He was also unable to bend, steep, squat, or kneel repetitively.

With respect to whether the record reflected any changes in severity of the Veteran's hepatitis B disability at any point since August 12, 1998, the examiner wrote that the Veteran's disability had remained consistent in that his fatigue, arthralgias, and malaise had persisted and the medical record of evidence did indicate periods of worsening since diagnosis.  Sometimes made worse during the periods of using antiviral and Peg-interferon medication (as medication side effects).  The disability had worsened to the point that the Veteran was no longer employed by the post office as a letter carrier due to the inability to carry loads and walk for prolonged periods as a requirement of employment.  Additionally, the Veteran reported the period of disability where he was confined to the home, unable to leave to walk, drive, or shop as at least 2 weeks but no longer than 4 weeks during the previous calendar 12 months.  

With respect to a June 2011 private nurse consultation report, the November 2012 VA examiner wrote that this report was thorough and represented an accurate detail of the Veteran's timeline and progression of his disability.  The examiner pointed out that, since this report was completed, the Veteran was diagnosed with severe obstructive sleep apnea upon 

In this case, the Veteran has reported fatigue and joint pain throughout the pendency of the appeal.  The Veteran's disability rating for hepatitis B was increased from 10 percent to 20 percent effective November 13, 2012 based on the November 2012 VA examiner's report that the total duration of the incapacitating episodes in the last 12 months was "at least 2 weeks but less than 4 weeks."  

While the November 2012 VA examiner wrote that the Veteran's disability had remained consistent in that his fatigue, arthralgia, and malaise had persisted, the examiner also noted that the medical record of evidence did indicate periods of worsening since the diagnosis.  Specifically, the examiner noted that the Veteran's hepatitis B symptoms were made worse during periods of using antiviral and Peg-interferon medication (as medication side effects) and that the Veteran's disability had worsened to the point that the Veteran was no longer employed by the post office as a letter carrier due to the inability to carry loads and walk for prolonged periods as a requirement of employment.

The Veteran and his representative have contended that the Veteran's hepatitis B symptoms increased in severity when he began Interferon treatment in 2003 and that he subsequently lost his job with the post office.  Specifically, in a February 2013 statement the Veteran's representative suggested that the Veteran began Interferon treatment in approximately October 2003.  As the record confirms that the Veteran did begin Interferon treatment in 2003 and Veteran's hepatitis B symptoms did increase significantly when he began this treatment, the Board finds that a 20 percent disability rating is warranted for the Veteran's hepatitis B effective October 1, 2003.  

Prior to October 1, 2003, the Veteran has specifically admitted that his fatigue, weakness, and joint pain were not incapacitating or even severe-and as he has not described daily episodes of fatigue and joint pain-the next higher evaluation of 20 percent, under the revised criteria, is not warranted.  

As for the potential of an even higher rating than 20 percent beginning October 1, 2003, without evidence of at least minimal liver damage and symptoms requiring dietary restriction or other therapeutic measures, the next higher evaluation of 30 percent for the Veteran's service-connected hepatitis B since October 1, 2003, pursuant to the old rating criteria, is not warranted.  See 38 C.F.R. § 4.114, DC 7345 (2001).

Further, the Veteran has described only intermittent episodes of fatigue, malaise, and joint pain and incapacitating episodes totaling two to four weeks within the last 12-month period.  Without evidence of daily episodes of such symptoms or incapacitating episodes of such symptomatology having a total duration of at least four weeks, but less than six weeks, during the past 12-month period, the next higher evaluation of 40 percent for this disorder, pursuant to the revised criteria, since October 1, 2003, is not warranted.  While the evidence reflects hepatomegaly, the remaining criteria for a higher rating are not met or nearly approximated.  See 38 C.F.R. § 4.114, DC 7345 (2012).

Additionally, the Board finds that there is no showing that, at any pertinent point, the Veteran's service-connected hepatitis B has reflected so exceptional or so unusual a picture as render inadequate the schedular criteria for rating the disability and to warrant the assignment of a higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)  (cited in the January 2010 SOC).

There is a three-step analysis for determining whether an extra-schedular rating is appropriate.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  First, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule.  Id.  If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as 'governing norms.' Id. at 115-16; see also 38 C.F.R. § 3.321(b)(1)  governing norms include marked interference with employment and frequent periods of hospitalizations).  If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether the claimant's disability picture requires the assignment of an extra-schedular rating.  Id. at 116.

The Board finds that schedular criteria are adequate to rate the Veteran's hepatitis B disability at all times pertinent to this appeal.  As noted, VA's rating schedule provides various, alternative means for evaluating hepatitis B, to include on the basis of incapacitating episodes.  Unfortunately, as explained above, the disability under consideration simply does not meet the criteria for a higher rating under any potentially applicable rating criteria.  Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disability.  

Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met.  See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 

For all the foregoing reasons, the Board finds that, prior  an initial 50 percent, but no higher, rating for depressive disorder is warranted, but that a rating in excess of 50 percent must be denied.  The Board has favorably applied the benefit-of-the-doubt doctrine in determining that the criteria for an initial 50 percent rating are met, but finds that the preponderance of the evidence is against assignment of any higher rating.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

B.  Depressive Disorder

The Veteran filed a claim for service connection for depressive disorder secondary to his service-connected hepatitis B in February 2009.  While the RO originally denied service connection for depression in February 2010, subsequently service connection for depressive disorder was granted by rating decision dated in December 2012.  At that time, a 30 percent disability rating was assigned effective February 17, 2009 and a 50 percent disability rating was assigned effective November 13, 2012.   

The Veteran's depressive disorder is currently rated under 38 C.F.R. § 4.130, DC 9434.  The actual criteria for evaluating psychiatric disorders other than eating disorders are set forth in a General Rating Formula.  See 38 C.F.R. § 4.130.  

Under the General Rating Formula, a 30 percent rating is assigned 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, mild memory loss (such as forgetting names, directions, recent events).

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 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 100 percent rating is assigned 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. 

Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score.  According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness."  There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability.  See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995).  However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned.  See 38 C.F.R. § 4.126(a).

Evidence relevant to the level of severity of the Veteran's depressive disorder during the course of this appeal includes VA examination reports dated in December 2009 and November 2012.  

During the December 2009 VA examination the Veteran reported a "mildly irritated," entitled stance about his having to 'prove' how he contracted hepatitis through service.  He clearly felt bitter about the lengthy, protracted, legalistic process and believed that the stress and disappointments from this process created tensions between him and his wife and also made him more generally irritable.  In a somewhat confusing and fused manner, the Veteran linked 1) his hepatitis B, 2) the Interferon treatment that he received in 2003 for his hepatitis B which he believed resulted in body aches, joint pains, nausea, and headaches, 3) his taking sick time from his position at the post office which resulted in his being terminated because of excessive sick leave, and 4) dysphoria.  That was to say, the Veteran believed that all of these things were interrelated.  He had the conviction that his hepatitis and its treatment gave rise to subsequent symptoms including body aches, joint pains, nausea and headaches that resulted in his needing to take off excessive tome from work that then led him to be terminated from the post office.  Because of this sequence, he felt depressed and bitter.  

During the December 2009 VA examination the Veteran described a mild dysphoria saying he lived day by day and was not very optimistic about the future.  He stated that he suffered from fatigue which he also linked causally to his hepatitis B and its treatment in that the fatigue, in turn, robbed him of any enthusiasm or ambitiousness for future work.  The Veteran reported no other significant symptoms.  His reports about substance abuse and alcohol, in particular, were somewhat inconsistent and contradictory.  At one point, he stated that he did not drink anymore, but later in the interview he revealed inadvertently that he had been drinking with a friend recently and when asked about this, he acknowledged that he continued to drink but that it was 'not like it used to be.'  He was reluctant to elaborate on the extent of his current drinking.  

With regard to functional status, the Veteran's story was somewhat inconsistent and contradictory.  At one point, the Veteran said he worked for the post office for about 10 years but then at another point said it was about 20 years.  In any case, he worked for quite some time at the post office and claimed that he was terminated because of excessive absenteeism.  He stated that he had been receiving unemployment since then but when questioned about how he could be receiving unemployment for the past three years he then came forth, acknowledging that he had a part-time position from 2006 to 2008 working as a dispatcher at a VNA.  He stated that he was laid off from this job in a somewhat vague and confusing story, but claimed that he won an appeal and was, at the time of the examination, receiving unemployment benefits from being laid off from this position.  The Veteran further claimed that he was currently looking for jobs but manifested no enthusiasm or optimism about this and his report of looking for work was not very compelling.  

The Veteran stated that he spent his days going for walks, picking up his daughter from school, watching television, and going on errands with his wife.  He also reported going to the gym and lifting weights although the examiner noted that this was interesting give the Veteran's consistent reports of joint pain.  Again, in a somewhat inconsistent manner, when asked about how he could live on the $200 he was receiving from VA each month, he then came forth saying that he did some odd jobs in the neighborhood and cited a recent one of helping his buddy move junk to the dump.  He also said, when confronted about his income, that his wife was also doing some "side jobs."  Of note, the Veteran did say that he would be willing to undergo vocational rehabilitation to be retained for positions that would not be interrupted by his joint pain.  

With regard to personal and social ties, the Veteran stated that his relationships with his wife and daughter were okay, although he intimated indirectly that there were tensions in the family, although he resisted elaborating on them.  He did acknowledge some socializing (and beer drinking) with some neighborhood friends, as well as with a few relatives.  

The examiner diagnosed the Veteran with dysthymia and assigned a GAF score of 60.  The examiner wrote that the veteran was clearly suffering from a mood disturbance manifested by long-standing dysphoria, irritability, and resentment.  He felt distressed and resentful about the protracted process by which he had 'to prove his service-connection for hepatitis B.'  He did not seem upset about having hepatitis B, rather having to prove that it was service connected so that he could receive benefits and secondarily at having some negative side effects from the Interferon treatment.  He causally linked a number of issues together which may or may not be, in fact, related, namely 1) his contracting hepatitis B, 2) having some negative side effects of Interferon, 3) his needing to have excessive sick leave time from his work at the post office, 4) his having other somatic complaints, particularly joint pain which he believed was related to his hepatitis B, and 5) his resulting dysphoria based on all of the preceding events.  The Veteran was a man who clearly felt victimized by the protracted service-connected process for his hepatitis B and felt further victimized by the difficult experience he had as a result of the Interferon treatment.  He felt further victimized by his joint pain which he believed was linked to his hepatitis B although the medical notes in the claims file, including a recent October 2009 examination by K.P., stated that the Veteran's "chronic polyarthralgias, degenerative changes, are more likely related to the Veteran's prior employment and unlikely sequelae of the Veteran's hepatitis B infection."  

Thus, it was examiner's professional opinion that the Veteran's mood disturbance manifested by bitterness and resentment in particular, is more likely than not the result of his feeling victimized by a protracted service-connected rating process for his hepatitis  B and some of his symptoms, specifically fatigue and joint pain, which may or may not be directly related to his hepatitis B.  Again, however, in the Veteran's mind, all of these events are directly linked to each other, leading him to feel that he has been wronged and not well cared for.  On the positive side, the Veteran did say that he would be willing to resume work including undergoing vocational rehabilitation training.  He did have a good work history and there were no psychological factors that would preclude his returning to the work force despite his resentment and irritability.  Indeed, the Veteran admitted, although somewhat reluctantly, that he did find some odd jobs in the neighborhood to make some extra pocket money.  The Veteran's GAF rating of 60 was fairly consistent with a recent rating by the Veteran's primary mental health care provider in November 2009 of 55.  

During the November 2012 VA psychiatric examination, the Veteran reported being married to his wife for 27 years and having a 19 year old daughter who lived at home.  He reported that while things with his wife had been better than they had previously been, there were still tension and conflict associated with his unemployment and financial concerns.  He indicated that his wife was on disability due to asthma and breathing problems.  He reported stress associated with concern for his daughter as she did not return to college in the fall of 2012 and was unemployed.  He reported irritability since being fire from the post office in 2005.  He also reported increased conflict at home and with neighbors.  The Veteran was reportedly arrested for breach of peace in October 2012.  The Veteran was washing his car in a school parking lot across from his house when a man asked him to move his car.  Shouting began and the man called the police.  A weapon was found in the Veteran's car at that time by the police and the Veteran indicated he had a permit for the weapon.  The Veteran indicated that this was his first arrest and that he was involved in program which required him to stay out of trouble for a period of time.  

The Veteran reported having a "happy" childhood and was close to a sister and one of his two brothers.  The Veteran graduated from high school and attended one year of college.  He reported receiving below average to average grades in school.  The Veteran reported a consistent work history until he was fired from the post office in 2005.  After discharge from the Marines, he worked in security with an average of three to four years at each job.  He worked at the positive from 1997 until 2005.  Initially he worked as a letter carrier until he switched to an office job secondary to joint pain.  When he began Interferon treatment for his hepatitis B in 2003 he went out on medical leave.  The Veteran reported that while he was on medical leave his regular physician left the medical practice he was using and when he went to have the new doctor at the practice complete his disability paperwork, the doctor demanded a $500 fee which the Veteran was unable to pay.  Therefore, the Veteran was terminated while he was out on leave for failing to provide sufficient documentation for his excessive absenteeism.  

Prior to his termination in 2005, the Veteran denied any history of difficulties with work performance and/or work conduct or being fired or otherwise unexpectedly terminated from employment.  He reported that, when he was a letter carrier, he received awards for his performance and attendance.  The Veteran reported that he was in receipt of Social Security disability benefits since 2006 due to hepatitis, joint pain, sciatica, and depression.  

The Veteran reported since being terminated from the post office he has had limited part-time employment.  One job included serving as an escort for visiting nurses.  He more recently worked in 2009 as a night residential staff member.  He reportedly worked three nights per week and checked on residents while they were sleeping.  He had to cut down his hours which resulted in being replaced when he realized his income was too high while on disability.  He reported that, since 2010, he has been "on-call" but had not been called in more than once.  The Veteran described a typical day consisting primarily of television watching and driving his daughter or wife different places.  He denied hobbies or interested and reported being to himself outside his immediate family.  

The Veteran reported that his depressive symptoms began in 2003 after beginning Interferon treatment for his hepatitis B.  Secondary to side effects, he reported he was out on leave from work and was subsequently terminated.  He was switched from Interferon to a different medication due to an inadequate response but reported his depression had not remitted.  During his extended absence and after his termination, the Veteran suffered financially.  One record in the claims file indicated that he Veteran's home was foreclosed around 2003.  The examiner wrote that the financial stress most likely further exacerbated his depression and continued to be a significant stressor.  

At the time of the November 2012 VA examination, the Veteran reported a depressed, negative mood.  He also reported passive suicidal ideation but denied a plan or intent.  Irritability had been a significant symptom reported historically as well as during the examination.  He reported anhedonia, feelings of hopelessness and helplessness and low motivation.  Of importance was the Veteran's sleep.  He reported insomnia since childhood and had a pattern of staying up late and only sleeping a few hours.  He reported only getting about five hours of sleep per night and was recently diagnosed with sleep apnea.  The Veteran reported a decrease in activity.  He no longer exercised and spent most of his time watching television, indicating fatigue and motivation problems.  However, the examiner wrote that this was possibly related to his depression in addition to his sleep apnea and hepatitis B.  

The Veteran reported that he was drinking more heavily in the past and had reduced his consumption in the last two years.  At the time of the examination the Veteran reported drinking a six pack throughout the weekend and rarely drinking during the week.  With regard to symptoms for VA rating purposes the examiner marked that the Veteran experienced depressed mood, chronic sleep impairment, disturbances in motivation and mood, as well as suicidal ideation.  The examiner noted that the Veteran's mood was dysphoric, his affect was mood congruent, and his thought process was logical and goal-oriented.  He denied current suicidal ideation, homicidal ideation, psychosis, or mania and the examiner wrote that the Veteran was of no immediate risk to his self or other.  His insight and judgment were fair.  

The examiner wrote that the examiner met the criteria for depressive disorder, NOS (not otherwise specified).  His functioning was significantly impaired occupationally and socially.  He reported conflict and/or isolation with most relationships.  He denied engagement in any pleasurable activities and led a restricted life.  Upon examination, he reported the onset of symptoms beginning upon Interferon treatment for his hepatitis B.  This report was consistent with medical records as well as a private psychological evaluation.  Although the previous VA examiner did not find a causal relationship between depression and hepatitis B, it did not directly address the issue of Interferon treatment but rather focused on the Veteran's feelings about the diagnosis and the process of applying for service connection.  The November 2012 examiner did not find convincing evidence to contradict the Veteran's claim of onset.  Therefore, the November 2012 examiner opined that the Veteran's depressive disorder, NOS was more likely than not related to Interferon treatment which was being administered to treat the Veteran's service-connected hepatitis B.  

Considering the evidence of record in light of the above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that an initial 50 percent, but no higher, rating for the Veteran's depressive disorder is warranted from the February 17, 2009 effective date of the award of service connection.

At the outset, the Board notes that, in addition to depressive disorder, the medical evidence also reflects diagnoses of dysthymia.  Where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability.  See Mittleider v. West, 11 Vet. App. 181   (1998).  The Veteran himself has indicated on numerous occasions to his medical care providers that his fatigue and inactivity is largely due to his hepatitis B, for which he was service connected in October 2008, as well as from his psychiatric disorders.  The Veteran has not been service connected for dysthymia.  However, there is no medical indication that these symptoms are distinguishable from his service-connected depressive disorder.  Hence, the Board has considered all of the Veteran's psychiatric symptoms in evaluating his service-connected depressive disorder.

The above-cited medical evidence reflects that, since the February 17, 2009, effective date of the award of service connection for depressive disorder, the Veteran's psychiatric symptoms have primarily included depressed mood, chronic sleep impairment, and disturbances in motivation and mood.  Most recently, the November 2012 VA examiner described the Veteran's functioning as significantly impaired occupationally and socially and the Veteran reported conflict and/or isolation with most relationships.  Collectively, these symptoms suggest occupational and social impairment with reduced reliability and productivity, the level of impairment consistent with a 50 percent rating.  As such, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that his depressive has more nearly approximated the criteria for an initial 50 percent rating.

While the Veteran has not demonstrated all of the symptoms associated with the 50 percent rating criteria, the Board is well aware that not all of the demonstrative symptoms must be shown to warrant a higher rating.  In this case, the Board finds that the Veteran's overall symptomatology picture, as well as, in particular, symptoms of depressed mood, chronic sleep impairment, and disturbances in motivation and mood, support the assignment of the 50 percent rating.

The Board also notes that, while the Veteran's symptoms have slightly varied in their severity during the time since he first applied for service connection for depressive disorder in February 2009, the symptoms demonstrated by the Veteran and the evaluations he has received from numerous medical professionals have been, essentially, consistent, indicating that a rating of 50 percent for depressive disorder should be assigned from the effective date of February 17, 2009 to the present, with no need for a "staged rating." See Fenderson, 12 Vet. App. at 126.

However, at no point since the effective date of the award of service connection has the Veteran's psychiatric symptoms met the criteria for the next higher, 70 percent rating.  As noted above, a 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish effective relationships.  Here, the objective medical evidence does not show symptoms sufficient to approximate the rating criteria for a 70 percent rating.

As above, during the November 2012 VA examination the Veteran's insight and judgment were fair.  While the Veteran's mood has been described as depressed, he showed no illogical, obscure, or irrelevant speech, and no signs of obsessive rituals.  While the Veteran demonstrated intermittent depression, there is no evidence that suggests that he ever had panic attacks or depression that was near-continuous.  He reported some irritability with his wife and daughter, but there was no evidence of any episodes of violence or inappropriate behavior.  At no time has the Veteran displayed signs of impaired impulse control or spatial disorientation.  Also, at no time as the Veteran shown deficiencies in judgment.

The Board notes that the Veteran has indicated having thoughts of suicide in the past.  While this is, indeed, a serious symptom, the Board acknowledges and appreciates that it has been continuously addressed in therapy and treated with medication by the Veteran's private and VA medical providers, and that he has indicated that in recent years he has not had any suicidal plans or intent.

Furthermore, the evidence demonstrates that the Veteran was able to establish and maintain some effective relationships.  He has been able to maintain effective relationships with his wife and daughter, and has enjoyed activities with them.  Specifically, he has been able to enjoy some social activities, including going for walks, picking up his daughter from school, watching television, and going on errands with his wife.  He also reported going to the gym and lifting weights.  

Finally, as for the Veteran's employability, the Veteran has worked sporadically throughout the appeal period.  While he claims that he is unemployable due to his depressive disorder, as explained in more detail below, an April 2013 VA psychiatric examiner opined that the Veteran was not unemployable due to his psychiatric problems.  Furthermore, he has not demonstrated deficiencies in his ability to work due to depressive disorder beyond that contemplated in the 50 percent rating.  In fact, an October 2012 VA treatment record shows that the Veteran was working 30 hours per week as a night residential counselor until April 2012.  

Thus, the medical evidence indicates that at no time pertinent to this appeal has the Veteran demonstrated deficiencies in most areas, and, while he has shown difficulty and reluctance in establishing and maintaining social relationships, he has nevertheless been able to establish and maintain effective relationships and social activities.  Given these findings, the Board concludes that the weight of evidence shows that the Veteran's symptoms do not meet the criteria required for a rating in excess of 50 percent for PTSD.  See 38 C.F.R. § 4.130.

The Board points out that in determining that the criteria for a rating in excess of 50 percent for the Veteran's service-connected depressive disorder are not met, the Board has considered applicable rating criteria not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating.  The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assigned rating for the psychiatric disability in question, but instead looked to the Veteran's overall disability picture.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).

The Board also points out that assigned Veteran's GAF scores are consistent with the assignment of no more than a 50 percent rating for depressive disorder.  The Veteran has been assigned GAF scores consistently ranging between 55 and 60.  According to the DSM-IV, GAF scores ranging between 51 and 60 are indicative of moderate symptoms (such as flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  GAF scores ranging from 41 to 50 are assigned for 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). 

The evidence reflects that Veteran has most frequently been assigned GAF scores of 55 and 60 by VA medical professionals; as indicated, such scores are consistent with overall moderate impairment.  Although such scores seem to suggest less impairment than contemplated in the 50 percent rating assigned from the 1998 effective date of the award of service connection-and hence, provide no basis for any rating in excess of 50 percent.  However, the Board reiterates that it is the symptoms shown that provides the basis for evaluating a disability.  Notwithstanding the assigned GAFs.  Considering the Veteran's collective symptoms, and resolving reasonable doubt in his favor, the Board has found that the criteria for a 50 percent, but no higher, rating for the Veteran's depressive disorder, .

As the criteria for the next higher, 70 percent rating are not met, it logically follows that the criteria for the maximum 100 percent rating are, likewise, not et.

The above determinations are based on consideration of applicable provisions of VA's rating schedule.  Additionally, the Board finds that there is no showing that, at any point since the August 1998 effective date of the award of service connection, the Veteran's service-connected depressive disorder has reflected so exceptional or so unusual a picture as render inadequate the schedular criteria for rating the disability and to warrant the assignment of a higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321(b) (cited in the March 2013 SOC).

As above, there is a three-step analysis for determining whether an extra-schedular rating is appropriate.  Thun, 22 Vet. App. at 115.  The Board finds that schedular criteria are adequate to rate the Veteran's depressive disorder at all times pertinent to this appeal.  As noted, VA's rating schedule provides various, alternative means for evaluating psychiatric disorders, to include on the basis of varying psychiatric symptoms.  Unfortunately, as explained above, the disability under consideration simply does not meet the criteria for a higher rating under any potentially applicable rating criteria.  Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disability.  

Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1)  is not met.  See Bagwell, 9 Vet. App. at 338-39; Floyd,  9 Vet. App. at  96; Shipwash, 8 Vet. App. at  227. 

For all the foregoing reasons, the Board finds that, for the period prior to October 1, 2003, the criteria for an initial rating in excess of 10 percent for hepatitis B are not met, but that, as of February 17, 2009, the criteria for 20 percent rating for that disability are met.  In reaching these determinations, the Board had considered the applicability of the benefit-of-the-doubt doctrine, but finds that the preponderance of the evidence is against assignment of any higher rating(s) prior to or since February 17, 2009..  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.



ORDER

An initial rating in excess of 10 percent for hepatitis B prior to October 1, 2003 is denied.  

A 20 percent rating for hepatitis B, from October 1, 2003, is granted, subject to the legal authority governing the payment of compensation .  

An initial 50 percent rating for depressive disorder, from ,August 12, 2008 is granted, subject to the legal authority governing the payment of VA compensation.

A rating in excess of 50 percent for depressive disorder is denied.


REMAND

The Board's review of the claims file reveals that additional RO action on the claims for service connection remaining on appeal is warranted.

A TDIU may be assigned where the combined rating for the veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  

In this case, the Veteran's service-connected disabilities presently include depressive disorder associated with hepatitis B (now rated as 50 percent disabling) and hepatitis B (rated as 20 percent disabling from ).  A combined disability evaluation of 60 percent is in effect.  Therefore, he does not meet the minimum schedular criteria for a TDIU.  38 C.F.R. § 4.16(a).

While the Veteran does not meet the schedular criteria for a TDIU, there is evidence that calls into question the Veteran's ability to secure or follow substantially gainful employment due to his service-connected depression and hepatitis B.  

While the Veteran lost his full-time job with the post office due to his hepatitis B in approximately 2003, the Veteran has consistently worked on a part-time basis since 2003.  As noted above, during the March 2005 VA hepatitis examination, the Veteran reported that he was working part-time lifting heavy boxes at a local store.  During the July 2008 VA hepatitis examination the Veteran reportedly worked one to two days per week as a dispatcher.  Significantly, an October 2012 VA treatment record shows that the Veteran was working 30 hours per week as a night residential counselor but stopped working in this position until April 2012.  Arguably, this  suggests no more than marginal employment.  See 38 C.F.R. § 4.16(b).    

In a July 2007 decision, SSA granted the Veteran disability benefits due, at least in part, to his hepatitis B.

In a March 2007 statement Dr. M.R. wrote that the Veteran suffered from severe hypertension, degenerative joint disease in the back, recurrent right sciatic pain, hepatitis and psychiatric problems.  He opined that the Veteran was disabled and could not work.  

Pursuant to the June 2012 Board remand, opinions were obtained in March and April 2013 regarding the Veteran's employability.  

In a March 2013 statement a VA physician's assistant wrote that with respect to the Veteran's hepatitis B, the Veteran was able to perform all activities of daily living without impairment.  He was able to perform all sedentary tasks but was unable to walk for prolonged periods or stand for prolonged periods without rest breaks.  He was unable to carry, push, pull, and lift loads greater than 20 pounds repetitively.  He was also unable to bend, stoop, squat, or kneel repetitively.  The examiner wrote that the symptoms had remained consistent.  The Veteran's fatigue, arthralgia, and malaise had persisted and the medical record of evidence indicated periods of worsening since the diagnosis.  These symptoms were made worse during the periods of using antiviral and Peg-interferon medication (as medication side effects).  The disability had worsened to the point that the Veteran was no longer employed by the United States Post Office as a letter carrier due to the inability to carry loads and walk for prolonged periods as a requirement of employment.  Additionally, the Veteran reported the period of disability where he was confined to the home and unable to leave to walk, drive, or shop at least two weeks but no longer than four weeks during the previous calendar 12 months.  Therefore, the examiner opined that the Veteran would be unable to secure or maintain substantially gainful employment.  The examiner was unable to opine as to the Veteran's unemployability as it related to his service-connected depression.  

In an April 2013 statement a VA psychologist noted that the Veteran reported a consistent work history until he was terminated from the post office in 2005.  He reported that his termination was related to excessive absences without proper documentation while he was out on medical leave after beginning Interferon treatment for hepatitis.  Other than absenteeism due to medical treatment, he denied difficulties with work performance or conduct and denied disciplinary action or previous terminations.  He began receiving Social Security disability in 2006 for multiple medical issues and depression.  He continued working on a part-time basis and only ceased working in 2010 when he realized that his income exceeded limits for Social Security disability and that he was in danger of losing his benefits.

Based on a review of his previous VA examination and medical records, the April 2013 VA psychologist wrote that the Veteran suffered from overall moderate depressive symptoms.  Of note, since the previous examination in November 2012, records indicated that the Veteran had returned to psychiatric treatment after a long absence and had reported significant improvement in depressive symptoms.  A March 2013 note shows that the Veteran denied prominent depressive symptoms outside of some sleep disturbances.  It appeared that the Veteran's fatigue and low motivation contributed most to his decrease in functioning.  However, the examiner noted that these symptoms were likely influenced by the Veteran's sleep apnea, sleep disturbance related to depression, and hepatitis B.  The examiner was unable to differentiate the effects of the three factors on the Veteran's fatigue and low motivation. 

The examiner wrote that, based on depressive symptoms, there was no sufficient evidence to render him unemployable.  According to the Veteran, his lack of employment since 2010 was caused by Social Security disability income limits.  He reported functioning well at work and denied significant issues with performance or conduct except related to medical leave.  Due to his fatigue and low motivation, work on a part-time basis may be most appropriate as well as working in settings without large numbers of people.  According to the examiner, engaging in psychiatric treatment and adequately treating his depression would likely increase the Veteran's ability to maintain employment.  Therefore, it was the examiner's opinion that the Veteran was not unemployable due to his depressive disorder.

Initially, the Board notes that while the March 2013 VA examiner opined that the Veteran would be unable to secure or maintain substantially gainful employment due to his hepatitis B, the April 2013 VA examiner opined that the Veteran was not unemployable due to his depressive disorder.  On remand, a medical opinion should be obtained to determine whether the Veteran's combined service-connected disabilities render him unemployable.   

Furthermore, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b).  The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).

With respect to assignment of a TDIU under the provisions of 38 C.F.R. § 4.16(b), the Board finds that the Veteran's claim should be submitted to the Director of Compensation and Pension for a determination as to whether a TDIU should be awarded on an extra-schedular rating basis. The Board finds the determination by the Social Security Administration and the medical opinions discussed above as plausible evidence that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected depressive disorder and hepatitis B.  Accordingly, the Board finds that the claim should be submitted to the Director of Compensation and Pension for extraschedular consideration of a TDIU under 38 C.F.R. § 4.16(b).  

Prior to arranging for a further medical opinion in this appeal, to ensure that all due process requirements are met, and that the record is complete, the RO should obtain and associate with the claims file all outstanding pertinent records. 

Also, the most recent VA treatment records associated with the claims file are dated in October 2012.  As above,  records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Bell, 2 Vet. at 613.  Accordingly, the RO should also obtain all outstanding VA treatment records dated since October 2012.  

The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period for response.  See 38 U.S.C.A § 5103(b)(1)  (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period).  In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent records.

Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159  (2013).

The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013).  However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal.  The RO's adjudication of the claims for increased ratings should include consideration of whether any "staged" rating (assignment of different ratings for distinct periods of time, based on the facts found), pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), is appropriate.

As a final point, the Veteran filed a claim for service connection for depressive disorder secondary to his service-connected hepatitis B in February 2009.  While the RO originally denied service connection for depression in February 2010, subsequently, service connection for depressive disorder was granted by rating decision dated in December 2012.  At that time, a 30 percent disability rating was assigned effective February 17, 2009 and a 50 percent disability rating was assigned effective November 13, 2012.   

In February 2013 the Veteran's representative disagreed with the effective date assigned for the 50 percent disability rating for depressive disorder.  Specifically, it was noted that the Veteran's appeal for a higher rating for hepatitis B had been pending since his August 12, 1998 claim and that the Veteran's depression, which was associated with hepatitis B, began in October 2003 when he began an invasive treatment for his hepatitis B.  A March 2013 SOC addressed the Veteran's claim for a higher initial rating for his depressive disorder but did not address the Veteran's contention regarding an earlier effective for the award of service connection for depressive disorder.  

The RO has yet to issue a SOC with respect to the Veteran's claim for an earlier effective for the grant of service connection for depressive disorder, the next step in the appellate process.  See 38 C.F.R. § 19.29  (2012); Manlincon v. West, 12 Vet. App. 238, 240-41   (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997).  Consequently, this matter must be remanded to the RO for the issuance of a SOC. Id.  The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed.  See 38 U.S.C.A. § 7105  (West 2002); 38 C.F.R. §§ 20.200, 20.501, 20.502 (2012).  On remand, the appellant will have the opportunity to file a timely substantive appeal if he wishes to complete an appeal as to this matter.

Accordingly, these matters are hereby REMANDED for the following action:

1.  Furnish to the Veteran and his attorney an SOC on the matter of entitlement to an earlier effective for the award of service connection for depressive disorder, along with a VA Form 9, and afford them the appropriate opportunity to submit a substantive appeal perfecting an appeal on this issue. 

The Veteran is hereby reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfected-here, as regards the matter of entitlement to an earlier effective for the award of service connection for depressive disorder, within 60 days of the issuance of the SOC.

2.  Obtain from the VA Connecticut Healthcare System outstanding, pertinent records of evaluation and/or treatment of the Veteran generated since October 2012.  Follow the procedures set forth in 38 C.F.R. § 3.159(c)  as regards requesting records from Federal facilities.  All records and/or responses received should be associated with the claims file.

3.  Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record.  Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private records.

In the letter, explain how to establish entitlement to a TDIU due to depressive disorder and PTSD.  Also, clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 

4.  If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159.  All records/responses received should be associated with the claims file.  If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.

5.  After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo examination, by an appropriate physician, to obtain a medical opinion  addressing the combined effects of the Veteran's service-connected on his employability.  

The entire claims file, to include a complete copy of the REMAND, and any pertinent Virtual VA records, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions (to include as reflected in the electronic record).  

Based on examination of the Veteran and review of the record, for each hepatitis B and depressive disorder, the examiner should describe the functional effects of the disability on the Veteran's ability to perform the  mental and/or physical acts required for substantially gainful employment consistent with his education and experience.  

Then, the examiner should offer an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the combined effects of the Veteran's hepatitis B and depressive disorder render him unable to  obtain or retainly substantially gainful employment.  
All examination findings, along with the complete rationale for the conclusions reached, should be set forth in a printed (typewritten) report.

6.  If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notices of the date and time of the examination sent to him by the pertinent VA medical facility.

7.  Refer this case to the Under Secretary for Benefits or the Director of VA's  Compensation and Pension Service, for consideration of assignment of an extra-schedular TDIU under the provisions of 38 C.F.R. § 4.16(b).

8.  To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  See Stegall v. West, 11 Vet. App. 268 (1998).

9.  After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim for a TDIU.

If the Veteran fails, without good cause, to report to the scheduled examination, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate.

Otherwise, adjudicate the claim in light of all pertinent evidence and legal authority,to include 38 C.F.R. § 4.16(a), for extra-schedular consideration. 

10.  If the benefit sought on appeal remains denied, furnish to the Veteran and his attorney an appropriate supplemental SOC that includes citation to and discussion of all additional legal authority considered, along with clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied.  The Veteran need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369   (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). 

This REMAND must be afforded expeditious treatment.  The law requires that all claims 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. 2013).



____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs