Citation Nr: 1328908 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 07-35 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an initial rating in excess of 30 percent for depressive disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In the decision, the RO granted service connection for depressive disorder and assigned an initial rating of 10 percent, effective June 13, 2006. A November 2007 rating decision increased the initial rating for depressive disorder from 10 to 30 percent, effective June 13, 2006. The Veteran continues to disagree with the rating assigned. The United States Court of Appeals for Veterans Claims (Court) has held that a "decision awarding a higher rating, but less than the maximum available benefit . . . does not . . . abrogate the pending appeal . . . ." AB v. Brown, 6 Vet. App. 35, 38 (1993). In September 2011, the Board remanded the Veteran's claim for additional development. The case has now been returned to the Board for review. Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him unemployable. Accordingly, the Board concludes that a claim for a TDIU has not been raised. FINDING OF FACT The evidence of record shows that the Veteran suffers from anxiety, depression, sleep impairment, panic attacks, suicidal thoughts, memory loss, intrusive thoughts, poor concentration, exaggerated startle reflex, irritability, anger, hypervigilance, and social isolation, that is comparable to no worse than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for depressive disorder have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify Here, the Veteran is appealing the initial rating assignment as to his service-connected depressive disorder. Once service connection has been granted, the context in which the claim initially arose, the claim has been substantiated; therefore, additional VCAA notice under § 5103(a) is not required because the initial intended purpose of the notice has been fulfilled, so any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, thereafter, once a notice of disagreement (NOD) has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability, only the notice requirements for a rating decision and statement of the case (SOC) described in 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim. 38 C.F.R. § 3.159(b)(3) (2012). The RO provided the Veteran the required SOC discussing the reasons and bases for not assigning a higher initial rating and cited the applicable statutes and regulations. Duty to Assist The duty to assist the Veteran has also been satisfied in this case. The service treatment records and VA medical treatment records have been obtained and associated with the claims file. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The updated VA treatment records are associated with the claims file in accordance with the Board's remand. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was afforded VA examinations in August 2006, December 2007, and September 2011. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiners performed mental status examinations of the Veteran, considered the Veteran's reported symptomatology, and provided the medical information necessary to address the rating criteria in this case. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the Board's remand directive was completed. See Stegall, 11 Vet. App. 268 (1998). In addition, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion regarding the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). For the reasons set forth above, the Board finds that VA has complied with the notification and assistance requirements. Legal Criteria - Rating Disabilities Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Specific Rating Criteria for rating mental disorders The Veteran's depressive disorder is rated by applying the criteria in 38 C.F.R. § 4.130, Diagnostic Code 9434 (2012). The VA Schedule rating formula for mental disorders reads in pertinent part as follows: 30 percent - 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, or mild memory loss (such as forgetting names, directions, and recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. 50 percent - Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. 70 percent - Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. 100 percent rating (the maximum schedular rating) - 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. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, consideration is given to all symptoms of the Veteran's depressive disorder that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). 38 C.F.R. § 4.125 (2012). Global Assessment of Functioning (GAF) GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)). According to the pertinent sections of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV), a GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. A GAF score of 51 to 60 indicates the examinee has moderate symptoms or moderate difficulty in social, occupational, or school functioning. A GAF score of 41 to 50 indicates the examinee has serious symptoms or a serious impairment in social, occupational, or school functioning. A GAF score of 31 to 40 indicates some impairment in reality testing or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. In the present claim, there are numerous clinical records with regard to the Veteran's symptoms. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to his claim. Service connection has been established for depressive disorder effective from June 13, 2006. During the appeal period, the Veteran's initial rating for depressive disorder was increased to 30 percent, from June 13, 2006. An appeal from the assignment of an initial rating, such as this case, requires consideration of the entire time period involved, and contemplate staged ratings where warranted. See Fenderson, supra. The VA treatment records reflect symptoms of depression, anxiety, sleep impairment, irritability, memory loss, anger, suicidal thoughts, intrusive thoughts, exaggerated startle response, social isolation, poor concentration, and restricted affect. The GAF scores have ranged from 55 to 72. A February 2007 VA treatment record indicated that the Veteran's GAF score was 70 and he enjoyed traveling, fishing, and spending time with his grandchildren. The VA treatment records show that the Veteran reported suicidal thoughts; however, the Veteran consistently denied any plan. The Veteran's hygiene has been noted as adequate and his judgment and insight have been intact. The Veteran was provided a VA examination in August 2006. The Veteran reported that he was prescribed medications for depression over a year ago and started taking medications for sleep problems about 45 years ago. It was noted that he worked for a diesel repair shop for the past two and a half years and he liked working long hours. He denied any mental health problems on the job and denied missing any work for the last year due to mental health problems. The Veteran divorced his first wife and was married to his current wife in 2001. He stated that the marriage was going very well. The Veteran indicated that after the military, he drank quite a bit of alcohol until about five or six years ago. The Veteran lived alone with his wife and got along well with his daughters. He spent his free time shopping, watching movies, and does some traveling and fishing with his wife. They also spent time with their grandchildren. He stated that he had problems with his temper before starting his medication and that he had not often had anger outbursts in the past ten to twelve years. He said that his medication improved his depression and kept him on an "even keel." The Veteran denied problems with guilt but did state that he had feelings of regret. He stated that he had suicidal thoughts right after his divorce but none since then. He denied any history of suicide attempts and denied ever intentionally causing himself physical pain. He denied hallucinations. He stated that his memory was not as good as it used to be and that he forgets where he has put things. Concerning compulsive behaviors, he stated that he tended to grind his teeth at work. He reported problems with anxiety if he was around a lot of people. He denied panic attacks. He denied difficulty completing activities of daily living such as cooking, cleaning, shopping, and laundry. The results of the MMPI-2 and the MCMI-III showed that the Veteran tended to be quite socially introverted and avoidant of most social situations. He reported a significant level of anxiety symptoms. He was uncomfortable around strangers and reported an exaggerated startle response. The diagnoses were listed as depressive disorder, not otherwise specified, in partial remission on current medications. The GAF score was listed as 60. The examiner indicated that the Veteran's depressive disorders caused a "mild negative impact on his quality of life," but were "not interfering with his ability to maintain employment." The examiner explained that the Veteran was not unemployable due to his mental health problems. In his notice of disagreement, the Veteran stated that he denied panic attacks and suicidal and homicidal ideation because he did not think anyone wanted to admit to those feelings. He stated that he was sad and depressed. He reported that his first marriage lasted 18 years with lots of fights, some physical, lots of drinking, and a temper that he could not control at the time. He stated that he did not "sleep a restful sleep." He stated that he did not have a lot of friends and did not want any. The Veteran was provided a VA examination in December 2007. The claims file was reviewed. The examiner noted that the Veteran worked as a diesel mechanic at Melrose Truck Repair and he had been there for five years. He stated that his ability to perform his job had been affected, at times, by his psychiatric issues. He stated that he had a difficult time "staying organized, staying focused and remembering things and that sometime throws me." He stated that he did not lose any time from work in the last year because of depression. The Veteran reported that he enjoyed playing on the computer, being with his grandchildren on the weekends, and being with his family. He stated that he had a couple of friends and went out with them and socialized once every three months. The Veteran stated that he used to have problems with his temper, but learned to control it. He denied getting into any physical fights and reported problems with depression. He stated that his depression has worsened and caused him significant problems in his social life. The Veteran was isolated from other people. He stated that he lost interest in hunting and fishing, but that his sleep was better because he took Ambien. His psychomotor activity was within normal limits. There were no suicidal attempts and he had no suicidal plan. His mood was described as "average" and that Monday was the worst day of the work week for him. He was not suicidal or homicidal. He denied any hallucinations. He denied delusions. He reported that his short-term memory was worse. He reported that he had random panic attacks and anxiety. He stated that "these instances are rare, but still scary." The Veteran reported that he had alcohol use consisting of about one or two beers per week. He reported an exaggerated startle response. On mental status examination, the Veteran was oriented to person, time, place, and situation. He was adequate groomed and his psychomotor activity was within normal limits. His affect was restricted. He denied any current suicidal or homicidal ideation. The MMPI-2 profile indicated that the Veteran isolated himself. The Veteran was able to manage his bathing, cooking, cleaning, shopping, toileting, dressing, laundry, eating, budgeting, and bill paying. The diagnoses were listed as anxiety disorder, not otherwise specified and depressive disorder, not otherwise specified in partial remission, on medications. The GAF score was listed as 55. The examiner's impression was that the Veteran reported that his symptoms of depression lessened since he started taking the medication, but that "there are still some days when I want to cover my head and ignore the world." He disliked crowds, but enjoyed being with his wife, children, and grandchildren. The examiner noted that the Veteran's employability was not impaired by his psychiatric condition, but that his quality of life was significantly impaired due to symptoms. He did not socialize and did not have any friends. In a July 2008 statement, the Veteran's wife explained that she felt that the Veteran used drinking to shut down his feelings and at times was very explosive and wanted to get into fights. He threw himself into his work and sat alone and drank. She stated that since they had been married, the drinking slowed down. She stated that she saw his sadness and he experienced strong mood swings. The Veteran was provided a VA examination in September 2011. The Veteran was diagnosed with alcohol abuse and depressive disorder. The examiner indicated that the Veteran had a current GAF score of 65. The examiner noted that the Veteran had occupational and social impairment due to "mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication." The examiner noted that the Veteran has been a diesel mechanic for 11 years and he took two or fewer sick days per year. He stated that "sometimes I don't concentrate too well." The Veteran reported that he drank six to seven beers per night. The symptoms were listed as depressed mood, chronic sleep impairment, mild memory loss, and suicidal ideation. The Veteran reported that his anger was a lot better than it used to be and that his anxiety was minimal. His depression was usually not present but he stated that: "I don't remember it being this bad 20 years ago." He reported suicidal thoughts about five to seven times per month. In consideration of the above and the entire evidence of record, the Board finds that the Veteran's depressive disorder is productive of functional impairment comparable to 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). As noted above, such examples of symptoms include: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events). The evidence reflects that the Veteran has depression, anxiety, panic attacks, chronic sleep impairment, and short-term memory loss. The Veteran reported that his concentration and lack of organization impacted his work and that it sometimes threw him. The Board finds that the Veteran's symptoms are comparable to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Indeed, the most recent VA examiner indicated that the Veteran's symptoms manifested in mild or transient symptoms. In addition, the December 2007 VA examiner indicated that his qualify of life was significantly impaired, but that his employability was not impaired. Thus, the Board finds that a 30 percent disability rating is appropriate for the entire appeal period. See Fenderson, 12 Vet. App. 119, 126-27 (1999). As for evidence regarding work relationships, the Veteran works as a diesel mechanic. He reported decreased concentration at work, but the evidence shows that the Veteran has good attendance-he missed fewer than two days of work as noted by the most recent VA examination. The Veteran has reported that he is socially isolated but has never indicated any difficulty in establishing effective work relationships. During the December 2007 VA examination, the Veteran noted that his job had been affected, at times, by his psychiatric issues and that he had a difficult time "staying organized, staying focused and remembering things, and that sometimes throws me." However, during that examination, he did not report any difficulty with work relationships and the medical evidence also does not reflect any difficulty with work relationships. Thus, the Board finds that the Veteran's symptoms are productive of functional impairment which most closely approximates the assigned 30 percent rating. With respect to social relationships, the Board notes that the December 2007 VA examiner indicated that the Veteran's quality of life was significantly impaired and he did not socialize or have any friends. However, the December 2007 VA examination report noted that the Veteran enjoyed being with his grandchildren on the weekends and that he had a couple of friends and went out with them and socialized once every three months. A February 2007 VA treatment record indicated that the Veteran enjoyed spending time with his grandchildren. Thus, the Board finds that despite the December 2007 VA examiner's indication that the Veteran did not socialize or have any friends, the overall medical evidence does not support this characterization and the evidence does not reflect that the Veteran has difficulty establishing or maintaining effective relationships. The Veteran is married and spends time with his family. The Board finds that the Veteran's symptoms are productive of functional impairment which most closely approximates the assigned 30 percent rating. The medical evidence does not reflect that the Veteran's depressive disorder manifestations are productive of functional impairment comparable to occupational and social impairment with reduced reliability and productivity to warrant a higher rating of 50 percent. As examples, the evidence does not show that the Veteran has experienced symptoms such as: impaired long-term memory loss, impaired judgment, difficulty understanding complex commands, or impairment of abstract thinking with circumstantial, circumlocutory, or stereotyped speech. As noted above, the VA treatment records and VA examinations reports reflect that the Veteran's judgment and insight have been intact. The Veteran has reported impairment of his memory. However, there is no indication of long-term memory loss. In fact, the Veteran's disability rating of 30 percent contemplates mild memory loss. The most recent VA examiner indicated that the Veteran experienced mild memory loss as a symptom of his PTSD. The Veteran reported experiencing panic attacks. However, the most recent VA examination does not reflect that the Veteran experienced panic attacks. In addition, the August 2006 VA examination report shows that the Veteran denied panic attacks. The December 2007 VA examination report shows that the Veteran reported random panic attacks, but that the instances were "rare." Thus, the evidence does not reflect weekly panic attacks. The evidence shows that the Veteran may have disturbances of motivation of mood and he exhibited restricted affect. Id. However, in consideration of the complete disability picture presented by the Veteran's depressive disorder, the Board finds that the 30 percent rating more accurately reflects the Veteran's symptomatology. The Veteran has worked successfully as a diesel mechanic even with his difficulty with organization, memory loss, and concentration. He spends time with his grandchildren and wife. His judgment and insight are intact and his psychomotor activity has been evaluated as normal. The Board observes that the next higher rating of 70 percent is not warranted because the competent evidence of record does not demonstrate that the Veteran's depressive disorder manifestations are productive of functional impairment comparable to occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. As examples, the evidence does not show that the Veteran has experienced symptoms such as: obsessional rituals which interfere with routine activities, speech that is intermittently illogical, obscure, or irrelevant, spatial disorientation, neglect of personal appearance and hygiene, or difficulty in adapting to stressful circumstances (including work or a work like setting). While the Veteran has depression, there is no evidence that the Veteran suffers from near-continuous panic or depression affecting the ability to function independently. Indeed, the Veteran works successfully as a diesel mechanic and only took two sick days during the past year as shown by the most recent VA examination report. The medical evidence reflects that the Veteran reported irritability and outbursts of anger. However, there is no indication that the Veteran has become violent during these outbursts during the period on appeal. Lastly, the Veteran has not been shown to have an inability to establish and maintain effective relationships as shown by his interactions with his wife and his grandchildren. The Board acknowledges that the Veteran has suicidal ideation. However, he consistently denied having a plan. In considering the whole disability picture and overall evidence, the Board finds that the Veteran's symptoms are productive of functional impairment which most closely approximates the assigned 30 percent rating. Finally, the Veteran is not entitled to a 100 percent rating for any period of time covered by the appeal. In this regard, the Veteran does not allege, nor does the evidence of record demonstrate total occupational and social impairment as a result of his service-connected depressive disorder. There is no indication that the Veteran's depressive disorder has manifested in symptoms productive of functional impairment comparable to such level of impairment. As examples, there has been no demonstration of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. Accordingly, a 100 percent rating is not warranted. 38 C.F.R. § 4.130. Additionally, the Board notes that the Veteran was assigned a GAF scores ranging from 55 to 72. The Board notes that the medical evidence more typically exhibits mild to moderate symptoms, which are consistent with the higher GAF scores assigned. Furthermore, as noted above, a GAF score is only one component of a Veteran's disability picture and the Board finds that the clinical findings are consistent with the current rating of 30 percent. The Veteran is competent to report symptoms of the disability at issue, such as sleep impairment, depression, anxiety, panic attacks, social isolation, decreased interest in activities, anger, and irritability, and suicidal thoughts and his wife is competent to state that she has witnessed with Veteran's mood swings and depression. The Board has considered such symptoms in evaluating the Veteran's disability. However, with respect to whether a higher rating is warranted under the pertinent rating criteria, neither the Veteran nor his wife have been shown to have the medical training necessary to make a complex assessment as to whether the severity of the symptoms satisfy the criteria for a higher rating under the schedular criteria. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a veteran's statements are competent evidence of what comes to him/her through his/her senses). The Board finds that the medical findings as detailed above are more probative as to whether the Veteran meets the rating criteria for a rating in excess of 30 percent as the examiners have medical expertise and described the manifestations of the Veteran's disability that are relevant to the rating criteria. In light of the above, the Board finds that the preponderance of the evidence is against entitlement to an initial rating in excess of 30 percent for depressive disorder. Consequently, the benefit-of-the-doubt rule is not applicable and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Extraschedular Consideration The Board has also considered referral for extraschedular consideration. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong in Thun, the evidence in this case does not show such an exceptional or unusual disability picture that the available schedular rating for the service-connected depressive disorder is inadequate. The criteria allow a higher level of disability, but the Veteran's disability does not meet the criteria. The Veteran's disability is not exceptional or unusual to render the schedular criteria inadequate. Further, although the Veteran has reported impairment with employment to include problems with concentration, the Veteran has been employed as a diesel mechanic and reported that he took less than two sick days per year. There are no episodes of hospitalization. Therefore, referral for extraschedular consideration is not warranted. ORDER Entitlement to an initial rating in excess of 30 percent for depressive disorder is not warranted. ____________________________________________ U.R. POWELL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs