Citation Nr: 1446165 Decision Date: 10/17/14 Archive Date: 10/30/14 DOCKET NO. 10-19 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an increased disability rating for major depressive disorder (MDD), rated 10 percent prior to March 15, 2012, and 70 percent as of March 15, 2012. 2. Entitlement to service connection for the human papillomavirus (HPV). 3. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from January 1997 to May 2006. This matter comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO) in Wichita, Kansas. During the course of this appeal, the RO awarded a 70 percent disability rating for MDD, effective March 15, 2012 in a September 2012 Rating Decision. The Veteran has not expressed satisfaction with that increase. Accordingly, the claim for increase remains on appeal. AB v. Brown, 6 Vet. App. 35. The issue of entitlement to TDIU prior to March 25, 2012 is REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. From December 29, 2008, to March 14, 2012, MDD was manifested primarily by chronic sleep impairment, irritability anxiety, and depressed mood, and Global Assessment of Functioning (GAF) scores of 50 to 68. Those symptoms demonstrate occupational and social impairment, with no more than occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks. 2. As of March 15, 2012, MDD has not been productive of total occupational and social impairment. She does not display 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), or disorientation to time or place. 3. HPV alone does not constitute a disability for which VA compensation benefits may be awarded. There is no evidence or allegation of any current underlying disability or chronic residuals etiologically related to HPV. 4. Resolving all reasonable doubt in the Veteran's favor, since March 15, 2012 the competent and credible evidence suggests that her service-connected MDD and other disabilities preclude her from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for a 30 percent disability rating for MDD are met from December 29, 2008, to March 14, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.126, 4.130, Diagnostic Code (DC) 9434 (2013). 2. As of March 15, 2012, the criteria for a rating for MDD greater than 70 percent are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.126, 4.130, DC 9434 (2013). 3. The criteria for service connection for HPV are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). 4. Resolving reasonable doubt in the Veteran's favor, since March 15, 2012, the criteria for TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, to include Veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded should be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor representative has alleged prejudice with respect to notice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. The Board finds that VA's duty to notify has been satisfied. The Veteran was notified by letter dated in January 2009 of VA's duty to assist and the effect of that duty upon her claims. She was also notified of how VA determines disability ratings and effective dates if increased entitlement is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). That letter addressed all notice elements and predated the initial adjudication by the AOJ in February 2009. Nothing more was required. VA has also satisfied the duty to assist the Veteran in the development of claims. Service medical records and pertinent post-service records have been obtained and associated with the record. The Veteran has availed herself of the opportunity to submit relevant documents and argument in support of her claims, including personal statements and representative argument. She also provided testimony at a 2010 Decision Review Officer (DRO) hearing. The Board finds that there is no additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. Green v. Derwinski, 1 Vet. App. 121 (1991). During the course of this appeal, Veteran was provided VA examinations in April 2007 and January 2009. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from her. The resulting medical opinions are thorough and adequate upon which to base a decision. Barr v. Nicholson, 21 Vet. App. 303 (2007). There has been substantial compliance with the Board's June 2011 remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Outstanding VA treatment records were associated with the record. Also, the AOJ obtained updated VA examinations in February 2012 and March 2012 to address the current severity of the service-connected MDD. Also, the medical opinions adequately address the effect the Veteran's service-connected MDD on her employment picture. Smith v. Shinseki, 647 F.3d 1380 (Fed. Cir. 2011). The Board emphasizes that the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one but rather a determination for the adjudicator. Moore v. Nicholson, 21 Vet. App. 211 (2007). Thus, the Board finds that VA has satisfied the duty to assist the Veteran in apprising her as to the evidence needed, and in obtaining evidence pertinent to the claims. No useful purpose would be served in remanding the claims for more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, supra. Increased Ratings The Veteran contends that her service-connected MDD is more disabling than currently rated. Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary in order to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41 (2013). The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the General Rating Formula for Mental Disorders, a 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9434 (2013). A 30 percent rating is warranted for occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9434 (2013). A 50 percent rating is warranted 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. 38 C.F.R. § 4.130, Diagnostic Code 9434 (2013). A 70 percent rating is warranted 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 work-like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9434 (2013). A 100 percent rating is warranted if there is 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. 38 C.F.R. § 4.130, Diagnostic Code 9434 (2013). When rating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When rating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (2013). The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. The use of the phrase 'such symptoms as,' followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each Veteran and disorder, and the effect of those symptoms on a Veteran's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A Veteran may only qualify for a disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. The regulation requires not merely the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Service connection for MDD was established by an August 2007 rating decision, which assigned a 10 percent disability rating, effective May 24, 2006. The Veteran filed a claim for increase in December 2008. In a September 2012 decision, the RO granted a 70 percent disability rating for MDD and assigned an effective date of March 15, 2012, the date of VA examination. Prior to March 15, 2012 Evidence relevant to the severity of the Veteran's service-connected MDD prior to March 15, 2012, includes, in addition to the Veteran's assertions of increased psychiatric symptomatology, VA clinical records and VA examination reports. Outpatient treatment records show that in December 2008, the Veteran was seen for scheduled mental health medication management appointment. At that time she had stopped taking her medications and reported an increase in stressors as she had recently separated from her husband. She also reported that she had been doing better in that she was working out, employed full time, had recently bought a house, and was in a new relationship. However, over the past few months she had noticed a gradual decrease in motivation and an increase in depression and anxiety. During mental status examination the Veteran was alert, oriented, and casually dressed, but mildly disheveled. Her speech was clear and coherent. She was calm and cooperative with flat affect. She was logical with no delusional content to conversation and did not appear to be attending or responding to internal stimuli. Her insight and judgment were good and she denied suicidal or homicidal ideation intention or plan. Her GAF score was 55. The clinical impression was moderate recurrent major depression. When examined by VA in January 2009, the Veteran noted that the past year had been the worst for her depression in that her medication seemed to stop working following a cholecystectomy in October 2008. She reported constant crying spells, poor sleep, and poor appetite. She was unable to concentrate and had no desire or pleasure in her usual enjoyable activities. She reported having to leave work a few times due to depression and uncontrollable crying spells. However she also reported that since then she had changed medications and was feeling better. She rated her mood as 6.5/10 and energy level as 7/10. Her appetite and concentration were both back to normal and she was able to perform her job. However she continued to have depression and bedtime anxiety, for which she occasionally took a sleeping aid. She also had a history of cutting herself, but had been able to resist recent urges to do so. During the mental status evaluation the Veteran had no impairment of thought process or communication. There was no evidence of delusions, hallucinations, or inappropriate behavior. She was able to maintain personal hygiene and other basic activities of daily living. The Veteran was oriented to person place and time and denied memory loss. There was no evidence of obsessive or ritualistic behavior that interfered with routine activities and she was not suicidal or homicidal. The clinical impression was major depressive disorder recurrent, mild to moderate with a GAF score of 68. The examiner noted that while the Veteran had a recent disruption to her work efficiency and consistency, she was considered capable of working full time. She continued to have occasional problems due to her depressive symptoms, but a medication change had helped. VA outpatient treatment records dated between 2009 and 2011 are comprised primarily of reports from individual psychotherapy sessions, medications prescribed during visits to the VA mental health clinic, and a record of behavior observed by medical staff. Of record during this timeframe are a number of GAF scores, which range from 52 to 68. In general, the clinical findings from those records are not materially different from those reported on the most recent VA examination and show that in general the Veteran's depression seemed to be exacerbated by conflict with family, a pattern of unstable relationships with men, and attempts at self-mutilation. Noted symptomatology included anxiety, some self-harming behaviors, depressed mood, and irritability. However the Veteran was consistently alert, fully oriented, with appropriate behavior, casual dress and adequate hygiene. Her speech was always normal and her thoughts were generally organized, coherent, and goal directed. There was no evidence of gross cognitive impairment or any suicidal or homicidal ideations, and the Veteran interacted and related appropriately with all of her healthcare providers and examiners. Early medical evidence in 2009 shows that while the Veteran reported moderate to severe depressive symptoms, she was still able to function daily at work and in the home. She also reported some problems with coworkers, but continued to work full time and described her boss as supportive and tolerant of her scheduling appointments. The Veteran had been pushing herself to exercise regularly and eat in a more healthful manner, both of which had been somewhat helpful to her mood. She also indicated that certain therapy techniques had been helpful and that her relationship with her boyfriend had improved. She began attending college courses with plans to obtain a bachelor's degree in business administration. These records also show she was being assessed for bipolar and/or obsessive-compulsive disorder (OCD) symptoms, such as in VA outpatient treatment records dated April 8, 2009; August 4, 2009; September 29, 2009; and December 29, 2009. VA outpatient records show that by March 2010, the Veteran was no longer taking medications due to her pregnancy and had noted an increase in depression symptoms. She was also anticipating leaving her job, relocating to another city to be near her mother, and planning to marry. The Veteran reported some anxiety attacks, but denied cutting since she found out she was pregnant. She continued to struggle with bipolar and depressive symptoms which were exacerbated by conflict with her family. In April 2010, the Veteran was noted to be unemployed, but working on her degree online and receiving a stipend through the GI bill, as shown in VA outpatient treatment records dated March 10, 2010; April 13, 2010; May 20, 2010; and July 20, 2010. More recent records show that in March 2011, the Veteran had engaged in self-harming behavior (cutting) for the first time in a year. Examination revealed multiple superficial linear lacerations to the inner aspect of the left forearm, which the examiner described as scratches more than cuts. The Veteran's self harm potential was considered mild to moderate. She continued to work on her online degree and was getting by financially on the GI Bill stipend. By May the Veteran had noted an improvement in symptoms with medications and regular therapy, but the following month had to discontinue all psychotropic medication due to a second pregnancy, as shown by VA outpatient treatment records dated March 2, 2011; May 19, 2011; and June 20, 2011. Also of record is a November 2011 opinion from a VA social worker who noted treatment of the Veteran since March 2011. The social worker reported the Veteran had significant deficits in multiple areas of functioning, most notably emotional self-regulation, interpersonally, and social impairment. The social worker concluded that the Veteran's depression had significantly and negatively impacted her ability to obtain and maintain gainful employment. By applying the Veteran's psychiatric symptomatology to the rating criteria, the Board concludes that she is entitled to a 30 percent disability rating for MDD prior to March 15, 2012. The clinical findings of record describe experiences, thoughts, and emotions due to MDD that result in occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Moreover, chronic depression and anxiety appear to have a noticeable impact on the Veteran's interpersonal relationships, particularly those within her immediate family. Thus in evaluating all of the evidence of record, the Board finds that the Veteran's symptoms more nearly approximate a level of social and occupational impairment that is consistent with a 30 percent rating, but no higher. Here the record demonstrates a somewhat varying degree of severity of MDD. However many symptoms required for a higher 50 rating are neither complained of nor observed by medical health care providers. The evidence does not show speech suggestive of disorders of thought or perception, difficulty understanding commands, or significant impairment of judgment, or abstract thinking. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). While the Veteran's past self-mutilation attempts are obviously a relevant consideration in evaluating the extent of psychiatric disability, it is only one factor and should not be given decisive effect in determining the outcome of the appeal without regard to the other relevant factors specified in the law and regulations. In the face of chronic depression, the Veteran has, for the most part, only engaged in minor superficial acts of cutting herself and has repeatedly denied suicidal thoughts, intent, or plans. Relevant treatment records show there are periods when the Veteran was doing worse and at other times doing better, but in general show that her symptoms have been under control to a large degree over the years and she has required no inpatient psychiatric treatment. She has also acknowledged that her symptoms have been less disabling through the use of prescription medication and regular therapy. Although, the Veteran has been unemployed since March 2010, the Board notes that by her own admission that termination of employment was occasioned by her voluntary resignation and relocation to another city. There is no evidence that prior to that time she had significant decreases in work efficiency. The Board has also considered that the VA examiners and therapists who have examined the Veteran on an outpatient basis for treatment purposes or have evaluated her to assess the nature, extent and severity of her service-connected MDD, have estimated GAF scores between 52 and 68. The majority of those scores denote mild to moderate symptoms (e.g., depressed mood mild insomnia, flat effect, circumstantial speech, occasional panic attacks) or mild to moderate difficulty in social, occupational, or school functioning (e.g., occasional truancy or theft within the household, few friends, conflicts with peer or co-workers). Carpenter v. Brown, 8 Vet. App. 240 (1995); Richard v. Brown, 9 Vet. App. 266 (1996). When considered in light of the actual symptoms demonstrated, these GAF scores do not provide a basis for a higher rating for the Veteran's MDD in excess of 30 percent for the period prior to March 15, 2012. Accordingly, resolving reasonable doubt in favor of the Veteran the Board finds that the Veteran's impairment due to MDD prior to March 15, 2012, was more consistent with a 30 percent rating. However, the Board finds that the preponderance of the evidence is against the assignment of any higher rating prior to March 15, 2012. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As of March 15, 2012 The Board notes that the Veteran's description of symptoms during her March 15, 2012, VA examination suggests an increase in the intensity of her MDD. The examiner noted that the psychiatric symptoms related to the Veteran's MDD had persisted. and appeared to have worsened in many respects, since the last VA examination in 2009. Although the Veteran was engaged in regular medication management and psychotherapy interventions, it appeared that significant life stressors had offset any mild treatment gains and that she has experienced very little stabilization or improvement. It was noted that the Veteran had managed adequate motivation to complete schooling over the past three years, including her bachelor's degree, but it was apparent that her only reliable motivation had been the financial stress in that she had to attend school or the family would not have enough money. Her school performance appeared to be adversely affected by significant psychiatric symptoms, further worsening her motivation and overall functioning. The Veteran reported that she was forcing herself to obtain a master's degree against her own desires purely for financial reasons. The examiner felt that despite the mandatory self-motivation the Veteran had to stay in school, it was apparent that she would otherwise be significantly (totally) impaired in an occupational/social functioning. The Veteran's prognosis was considered fair and guarded. Although her willingness to continue to engage in behavioral healing interventions boded well, it was unlikely that she would make significant treatment gains until further stabilization of life stressors and psychiatric symptoms was achieved. Based upon these findings, the RO, in a September 2012 rating decision, increased the rating for MDD to 70 percent, effective March 15, 2012, the date of the VA examination report. Subsequently dated VA outpatient treatment records show continued monitoring of the Veteran's MDD since March 2012 and include findings from multiple mental status examinations, which consistently show the Veteran was calm, cooperative, well groomed, appropriately dressed, and fully oriented. Her behavior was appropriate to the situation and her speech was clear and coherent. Thought processes were logical, organized, and sequential with no evidence of hallucinations or delusions. The Veteran's cognition and insight and judgment were generally within normal limits. Her affect was described as mildly flat and congruent with mood, which was described as even. The Veteran consistently denied suicidal or homicidal ideation, intention, or plan and herself, and her harm potential was assessed as minimal. There is no indication from the records that the Veteran's symptoms demonstrate any significant change or have any effect on her everyday functioning. She had successfully completed her bachelor's degree and was currently working on a master's degree. The mental health records also include a number of GAF scores, which range from 50 to 55. Based upon a review of the evidence of record, the Board finds there is no basis for a disability rating in excess of 70 percent for MDD since March 15, 2012. Applying the Veteran's psychiatric symptomatology to the rating criteria, the Board concludes her impairment cannot be described as "total," and the record does not show the type of cognitive and behavioral impairment reserved for a 100 percent rating. The symptoms required for a 100 percent rating are neither complained of nor observed by medical health care providers, including 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 presence of certain symptoms is not necessarily determinative. The symptoms must also cause the occupational and social impairment in the referenced areas. While the evidence clearly demonstrates that the Veteran has significant social and occupational impairment attributable to MDD, her overall symptomatology is not consistent with the criteria for a 100 percent rating as total social and occupational impairment is not shown. The recent VA treatment records show that while the Veteran's MDD symptoms have been continuous, she has responded favorably to treatment and as a result her psychiatric symptoms have not been productive of total occupational and social impairment. Even at its worst, the evidence reflects a person who functions fairly well. Those findings, representing recent evidence as to the Veteran's psychiatric condition, are not consistent with increased psychiatric symptomatology required by the rating criteria required for the assignment of a 100 percent disability rating. The evidence shows that the Veteran has pursued a course of education and progressed satisfactorily. The evidence also shows that she maintains effective family relationships. Therefore, the Board cannot find total occupational or social impairment, as required for a 100 percent rating. The Board also acknowledges that the Veteran's GAF scores, since March 2012, have ranged between 50 and 55, which represents moderate to serious symptoms (e.g., flat affect, and circumstantial speech, occasional panic attacks, suicidal ideation, severe obsessional rituals, frequent shoplifting) or moderate to serious impairment in social, occupational, or school functioning (e.g., few or no friends, conflicts with peers or co-workers, unable to keep a job). The Board finds that those GAF scores are commensurate with the assigned 70 percent disability rating and do not provide a basis, alone, for assignment of a 100 percent rating for the Veteran's MDD. The Board also notes that the Veteran was found to have significant symptoms associated with bipolar disorder and OCD in addition to symptoms of MDD. These disorders are not service-connected, but, according to the evidence, cause some level of additional social and occupational impairment. The Board has considered all of her psychiatric symptomatology in rating the severity of the service-connected mental disorder as they cannot be differentiated. Mittleider v. Brown, 11 Vet. App. 181 (1998). The Board has carefully considered the Veteran's contentions in making this decision. However, inasmuch as the objective evidence does not otherwise substantiate the subjective complaints, her assertions do not suffice to assign higher disability ratings for her service-connected MDD. The level of disability shown is encompassed by the ratings assigned and, with due consideration to the provisions of 38 C.F.R. § 4.7, a higher rating is not warranted for this disability for any portion of the time period under consideration. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 70 percent for MDD as of March 15, 2012. Therefore, the claim for increase must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection The Veteran seeks service connection for HPV. Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2013). Service connection for certain chronic diseases will be presumed if they manifest to a compensable degree within one year following the active military service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2013). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). HPV is not listed in 38 C.F.R. § 3.309(a). Therefore, HPV is not a qualifying chronic disease under 38 C.F.R. § 3.309(a). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). If the preponderance of the evidence is against the claim, the claim must be denied. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The service medical records show that in March 2006, the Veteran underwent a colposcopy for low grade squamous intra-epithelial lesion (LGSIL) due to HPV disease of the cervix. The Veteran underwent a QTC examination in April 2007, within a year of service discharge. The examiner interviewed the Veteran, reviewed the claims file and noted the history of in-service colposcopy for HPV. At that time the Veteran reported regular menstruation with a 25-day cycle. She denied suffering from any heavy or irregular bleeding or pelvic pain. The examiner noted that the Veteran was not receiving any current treatment for HPV and there was no functional impairment resulting from it. PAP smear results were normal. The clinical impression was HPV resolved. Post-service treatment records document that the Veteran underwent multiple PAP smears, including in September 2007 and April 2009, which were found to be normal. She later became pregnant in 2010 and 2011 and had normal deliveries. Following the birth of her child in February 2012, a PAP smear was negative for intraepithelial lesion or malignancy. There is no indication that the Veteran is currently being treated for any acute gynecologic symptoms or other residuals of HPV. She has not submitted or identified any medical records which show she has complained of or received treatment for HPV since service discharge. In this case, the evidence of record does not provide any medical basis for finding that the Veteran is currently diagnosed with any disability of HPV or residuals associated with the in-service HPV. There is no disputing the in-service treatment records that indicate that she was treated for HPV during service. But merely establishing treatment for symptoms while in service is not tantamount to granting service connection because there also has to be chronic residual disability resulting from that condition or injury. Chelte v. Brown, 10 Vet. App. 268 (1997) (current disability means a disability shown by competent evidence to exist). The Veteran's HPV during is shown to have resolved and not to have resulted in any current disability. Thus it is clear that a continuing permanent disability is not present. While HPV may, or may not, be a manifestation of a chronic underlying gynecologic disorder, it does not appear to be disabling itself. Under applicable regulation, the term disability means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1 (2013); Hunt v. Derwinski, 1 Vet. App. 292 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). Pertinent to gynecological disabilities, findings of cervical dysplasia and HPV alone are not service-connectable disabilities, although they may be etiologically related to a later diagnosis of cervical cancer. 60 Fed. Reg. 19,851 (April 21, 1995). They are, therefore, not appropriate entities for the rating schedule. Nothing in the medical evidence shows that the Veteran has exhibited an actual disability manifested by HPV at any time during the current appeal period, and there is no evidence of record to suggest that it causes any impairment of earning capacity. There are no symptoms, manifestations, or any deficits in bodily functioning associated with this finding. At the VA examination, the examiner found insufficient clinical evidence to warrant a diagnosis of HPV or any acute or chronic disorder or residuals of HPV. The Veteran has presented no competent medical evidence to the contrary. A clinical finding, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a disability for which service connection may be granted. Service connection may not be granted for symptoms unaccompanied by a diagnosed disability. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001); Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). The record does not otherwise medically suggest that the Veteran has an underlying disability related to HPV, such as carcinoma or carcinoma of the cervix, for which service connection can be granted. In the absence of a clear diagnosis, or abnormality which is attributable to some identifiable disease or injury during service, an award of service connection is not warranted. The presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Because there was no HPV diagnosed at any time since the claim was filed, and there remains no current evidence of the claimed disorder, no valid claim for service connection exist. Based on this evidentiary posture, service connection cannot be awarded. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). As the preponderance of the evidence is against the claim for service connection for HPV, it must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU In a May 2010 substantive appeal, the Veteran, through her attorney, indicated that she had been unable to work as a result of her MDD since March 31, 2010. Total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2013). Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent rating, or, with less disability, if certain criteria are met. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or 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) (2013). In exceptional circumstances, where a Veteran does not meet the percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b) (2013). In reaching such a determination, the central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may not be given to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). Service connection is currently in effect for MDD, rated as 70 percent; right knee patellofemoral pain, rated 10 percent; right ankle posterior tendonitis status post arthroscopic debridement, rated 10 percent; low back sacroiliac sprain rated 10 percent; left bunion rated 0 percent; hypertension rated 0 percent; right ankle scar rated 0 percent; and verruca warts, rated 0 percent. The combined rating for the service-connected disabilities is 80 percent. Thus, the Veteran meets the minimum percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a). In her May 2010 claim for TDIU the Veteran essentially reported being unable to secure and follow any substantially gainful occupation due to depression. She indicated that her longest period of continuous employment was from 2008 to 2010 as a document specialist. She last worked full time in March 2010. However according to the Veteran's most recent employer in a March 2010 statement, the stated reason for termination of employment was voluntary resignation as the Veteran had moved out of the area. There were no concessions made for her in that employment by reason of age or disability and the Veteran did not lose any time from work during the 12 months preceding her last date of employment. Other evidence or record, such as the March 2012 examination, shows that the Veteran has successfully completed four years of college earning an undergraduate degree and was currently studying in pursuit of a Master's in Business Administration (MBA). For the Veteran to prevail in a claim for TDIU, the record must show circumstances, apart from nonservice-connected conditions, that place her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Notably, there are clinical findings contained in the most recent VA examination report that lend strong support to an award of a TDIU. The March 2012 VA psychiatric examination report indicates that while the Veteran has been able to manage adequate motivation to complete schooling over the past three years, including her bachelor's degree, it is apparent that her only reliable motivation has been the financial stress in that she has to attend school or the family will not have enough money. That said, her school performance appears to be adversely affected by significant psychiatric symptoms further worsening her motivation and overall functioning. Rather the Veteran reported that was forcing herself to obtain a master's degrees against her own desires purely for financial reasons. The examiner felt that despite the mandatory self-motivation the Veteran was experiencing to stay in school, it is apparent that she would otherwise be significantly (totally) impaired in an occupational/social functioning. In this case, as the Veteran now carries a combined disability rating of 80 percent, the Board has reviewed the evidence of record and determined that since March 12, 2012 she was unable to secure or follow a substantially gainful occupation due to her service-connected disabilities MDD. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence of record supports the grant of a TDIU from March 15, 2012. Accordingly, that aspect of the appeal is granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).The claim for TDIU prior to March 15, 2012 is being remanded for further development. ORDER From December 29, 2008, to March 14, 2012, a rating of 30 percent, but not higher, for MDD is granted. As of March 15, 2012, entitlement to a rating greater than 70 percent for MDD is denied. As of March 15, 2012, a TDIU is granted. REMAND With respect to the TDIU claim, the Board granted a TDIU, effective from March 15, 2012, the effective date of a 70 percent rating for MDD. However prior to that date the Veteran does not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). She has also presented some evidence that she was unemployable due to her service-connected MDD prior to March 15, 2012 such as in an opinion from D. Voth, LSCSW, dated November 15, 2011. Accordingly, the Veteran's TDIU claim should be referred to VA's Director of Compensation and Pension Service for consideration of TDIU under 38 C.F.R. § 4.16(b), prior to March 15, 2012. The authority to assign TDIU ratings pursuant to 38 C.F.R. § 4.16(b) has been specifically delegated to the Under Secretary for Benefits and the Director of the Compensation and Pension Service in the first instance. Because the Board does not have that authority, the TDIU claim must be referred to VA's Director of Compensation and Pension Service for extraschedular consideration of TDIU under 38 C.F.R. § 4.16(b) . Accordingly, the case is REMANDED for the following action: 1. Refer the TDIU claim prior to March 15, 2012, to VA's Director of Compensation and Pension Service for extraschedular consideration in accordance with 38 C.F.R. § 4.16(b) as to whether the Veteran was unemployable due to service-connected disability prior to March 15, 2012. 2. Then, readjudicate the claim for TDIU prior to March 15, 2012. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board.. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs