Citation Nr: 1516786 Decision Date: 04/20/15 Archive Date: 04/24/15 DOCKET NO. 12-33 464A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for major depressive disorder. 2. Entitlement to service connection for a bilateral hernia. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from May 1984 to September 1984 in the Army and May 1985 to January 2005 in the Air Force. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2010 and May 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The January 2010 rating decision granted service connection for major depressive disorder as secondary to the service-connected cervical disc disease, and the appeal with respect to this disability is based on disagreement with the initial rating assigned for major depressive disorder. The May 2010 rating decision denied service connection for bilateral hernia. The Board notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files. The Virtual VA file contains reports from VA outpatient treatment in November 2009 and a June 2013 VA psychiatric examination, which were considered by the agency of original jurisdiction (AOJ) in the October 2012 statement of the case and November 2013 supplemental statement of the case. The documents in the electronic files are otherwise either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The Board further observes that, after the Veteran's initial rating claim was most recently considered by the AOJ in the November 2013 supplemental statement of the case, he submitted additional private treatment records referable to such claim with a waiver of AOJ consideration in December 2013. 38 C.F.R. § 20.1304(c) (2014). Therefore, the Board may consider such newly received evidence. The claim for service connection for a bilateral hernia is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, since the September 10, 2008, effective date of the grant of service connection, major depressive disorder has resulted in manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas. 2. At not time since the effective date of the grant of service connection has major depressive disorder resulted in total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial 70 percent rating, but no higher, for major depressive disorder are met for the entirety of the appeal period. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Proper VCAA notice must inform the claimant of any information and 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)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. As relevant to the Veteran's underlying service connection claim, October 2008 and June 2009 letters, sent prior to the initial unfavorable decision issued in January 2010, advised the Veteran of the evidence and information necessary to substantiate his secondary service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letters advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Thereafter, the Veteran has appealed with respect to the propriety of the initially assigned rating for his major depressive disorder from the original grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for service connection for his major depressive disorder was granted and an initial rating was assigned in the January 2010 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, the Veteran's service treatment records (STRs) and post-service VA and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran was also afforded VA examinations in November 2009, May 2012, and June 2013 in conjunction with the claim on appeal. Neither the Veteran nor his representative has alleged that such is inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected major depressive disorder as they include an interview with the Veteran, a review of the record, and a full mental status examination, addressing the relevant rating criteria. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary. Thus, the Board finds that VA has fully satisfied the duty to notify and assist with respect to the issue adjudicated herein. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose with respect to the claim adjudicated below. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding with respect to the claim adjudicated herein. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of the claim for an increased rating for major depressive disorder. II. Analysis The Board has reviewed all of the evidence of record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim adjudicated herein. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Ratings Schedule) found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the appellant's favor. 38 C.F.R. § 4.3. See also 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating an appellant's service-connected disabilities. 38 C.F.R. § 4.14. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's service-connected major depressive disorder has been rated under DC 9434, and the criteria for rating such psychiatric disability are set forth in the General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. 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. Id. 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. Id. 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. Id. As the United States Court of Appeals for the Federal Circuit recently explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation ... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a). 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). Summarizing the relevant evidence pertinent to the claim for a higher initial rating for major depressive disorder with the above provisions in mind, a November 2009 VA psychiatric examination resulted in an opinion linking this disability to the service-connected cervical spine disability. The Veteran at that time indicated that he usually just stayed in his house due to panic attacks and having to cope with pain. He also reported difficulty with family relationships and limited social relationships, and it was noted that the Veteran had attempted to overdose on Imipramine in May 2006 and was reportedly not hospitalized thereafter but treated in the emergency room and released. It was reported that he last worked in February 2005 due to retirement attributed to age. Upon mental status examination in November 2009, the Veteran was clean and casually dressed; speech and psychomotor activity were normal; and his affect was flat. Mood was depressed and the Veteran was oriented to three spheres. Thought process and content were unremarkable and there were no delusions. Judgment was intact and the Veteran had partial understanding of his problems. He reported that he could only sleep three to four hours a night. No inappropriate or obsessive/ritualistic behavior was reported. The Veteran described severe panic attacks lasting up to 15 minutes that precluded activity occurring four times a week. No suicidal or homicidal thoughts were reported and the Veteran was said to have fair impulse control. He reported that sporadic maintenance of personal hygiene but stated that there were no problems with daily living. Remote memory was normal and recent and immediate memory were mildly impaired. The GAF score following the examination was 49, indicative of serious impairment. In reporting what best summarized the level of occupational and social impairment resulting from major depressive disorder as set forth in the rating criteria, the examiner indicated that there were deficiencies in the areas of judgment, thinking, family relations, work, mood, or school but not total occupational and social impairment. VA outpatient treatment reports dated in November 2009 reflect a Beck Depression Inventory noting that the Veteran had severe symptoms related to sadness, pessimism, past failure, loss of pleasure, guilty feelings, suicidal thoughts or wishes, agitation, indecisiveness, worthlessness, loss of energy, irritability, difficulty with concentration, and tiredness or fatigue. At a May 2012 VA psychiatric examination, the Veteran reported that he was getting along well with family members and those he knew outside the family. He reported that he did not work due to neck pain and his depression. Upon mental status examination, the Veteran was alert and fully oriented; speech was slow and monotonous though normal in syntax; thought content and processes were unremarkable; and his mood was mildly to moderately depressed with a somewhat blunted affect. Hallucinations, delusions, and suicidal ideation were denied, and there was no observable impairment in attention, concentration, or memory. In checklist fashion with respect to the presence of symptoms relevant to the rating criteria, the only symptom selected was "disturbances of motivation and mood." A GAF score of 55 to 80 was assigned and the examiner indicated that such was speculative and was offered as a range of possible scores due to the results of objective testing in the current examination. At the most recent VA psychiatric examination in June 2013, various psychiatric disorders were diagnosed, to include major depression, generalized anxiety disorder, dysthymic disorder, and panic disorder with agoraphobia. It was noted that it would be pure speculation to differentiate what symptoms are attributable to each diagnosis and what portion of the occupational and social impairment was caused by each disorder due to significant symptom overlap. An overall GAF score of 45-50 for such disorders was assigned. At such examination, the Veteran denied hallucinations or delusions and he appeared to be alert, cooperative and well oriented. His thoughts were said to be logical and coherent. In reporting what best summarized the level of occupational and social impairment resulting from major depressive disorder as set forth in the rating criteria, the examiner selected the statement "[o]ccupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation." The examiner noted that the Veteran's appearance displayed good personal hygiene and that he appeared to be subdued and with low energy initially but gradually brightened throughout the interview. He maintained good eye contact and his speech was of normal rate and rhythm. The Veteran denied hallucinations or delusions, and he appeared to be alert, cooperative and well oriented. Thoughts were logical and coherent. He reported that he became overwhelmed by panic attacks at times that involve "heating up and sweating and then I start fainting out." He denied recent suicidal or homicidal ideation. In checklist fashion with respect to the presence of symptoms relevant to the rating criteria, the symptoms selected consisted of depressed mood, anxiety, panic attacks occurring more than once a week, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner specifically noted that the Veteran's psychiatric disability did not result in total occupational and social impairment. The record also includes a June 2009 statement from the Veteran's private treating psychiatrist reflecting a GAF score of 50. A December 2012 statement from this psychiatrist noted a GAF score of 20, which would reflect a level of disability that would include gross impairment in communication. This statement also, after the psychiatrist indicated that that he had reviewed the relevant rating criteria in a Statement of the Case, concluded that the Veteran met the criteria for a 70 percent rating for his service-connected psychiatric disability. This psychiatrist finally completed a November 2013 statement on behalf of the Veteran that again noted a GAF score of 20 and indicated that the Veteran had "100% impairment." Based on review of the evidence set forth above, and after resolving all doubt in the Veteran's favor, the Board finds that, since the effective date of the grant of service connection, the Veteran's major depressive disorder has resulted in manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas. Thus, for the entire appeal period, an initial rating of 70 percent is warranted. 38 C.F.R. § 4.130, DC 9434. However-and notwithstanding the private psychiatrist's November 2013 assessment of total impairment, which represents an isolated finding in contrast to the majority of the evidence, to include the June 2013 VA examiner's finding that specifically ruled out such impairment, and was offered without supporting rationale or details-the Board finds that at no time since the grant of service connection has the Vetean's major depressive disorder resulted in total occupational and social impairment. Thus, for the entire appeal period, an initial rating in excess of 70 percent is not warranted at any time. 38 C.F.R. § 4.130, DC 9434. In determining that the criteria for a rating in excess of 70 percent for the Veteran's major depressive disorder are not met, it is emphasized that the undersigned has considered the applicable rating criteria not as an exhaustive list of symptoms, but rather, 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 in determining that a rating in excess of 70 percent is not for assignment. See Vazquez-Claudio, supra; Mauerhan, supra. Instead, this determination reflects the level of the Veteran's occupational and social functioning that the Veteran maintains, to include as demonstrated by the far majority of the GAF scores recorded during the appeal period and the fact that Veteran has been able to maintain, although with some difficulty, relationships with his family and others. The Board further finds that a staged schedular rating for the Veteran's major depressive disorder is not warranted as his symptomatology has remained stable throughout the appeal. See Fenderson, supra. In making its determinations in this case, the Board has considered carefully the Veteran's contentions with respect to the nature of his service-connected disability at issue and notes that his lay testimony is competent to describe certain symptoms associated with this disability. The Veteran's history and symptom reports have been considered, including as presented in the clinical evidence discussed above, and have been contemplated by the disability rating found to be warranted. Moreover, the competent psychiatric evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disability at issue. As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected condition at issue. The Board also has contemplated whether the case should be referred for extra-schedular consideration for the disability at issue. An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Federal Circuit provided guidance in rating psychiatric disabilities, emphasizing that the list of symptoms under a given rating is nonexhaustive. Vazquez-Claudio, supra. The psychiatric symptoms present in this case are either listed in the schedular criteria or are similar in kind to those listed, as discussed above. Review of the record does not reveal that the Veteran suffers from any symptoms of major depressive disorder that are not contemplated in the nonexhaustive list of symptoms found in the schedular criteria. Furthermore, the rating schedule provides for greater compensation for greater disability than that suffered by the Veteran. The Board notes that, pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. However, in this case, as the decision does not involve evaluation of multiple service-connected disabilities, further discussion of Johnson is not necessary. In this regard, the Board notes that, while the Veteran is service-connected for other disabilities, such are not currently on appeal and, as such, need not be considered in the extra-schedular analysis at this time. See id. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disability. The rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Finally, the Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) that a total disability rating for compensation based on individual unemployability (TDIU) is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. During the course of the Veteran's claim for an increased rating for his major depressive disorder, a claim for TDIU was considered and denied by the RO in an October 2011 rating decision. The Veteran has not filed a timely appeal to such decision. In this regard, while he attempted to enter a notice of disagreement to such rating decision in November 2012, such was not timely filed and he was notified of such determination in January 2013; however, did not appeal such finding. Such adjudication reflects the permissive bifurcation of the increased rating claim from the TDIU claim. See Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions); Holland v. Brown, 6 Vet. App. 443, 447 (1994) (holding that "it was not inappropriate" for the Board to refer a TDIU claim to the RO for further adjudication and still decide an increased-ratings claim). Moreover, while acknowledging the Rice decision, in Locklear v. Shinseki, 24 Vet. App. 311 (2011), the Court held that it is permissive for VA to address a claim for TDIU independently of other claims, including increased rating and service connection claims. Id. at 315. Given the foregoing, the Board concludes that the TDIU claim was separately adjudicated and not perfected for appellate review. Accordingly, the Board does not have jurisdiction over the claim and need not refer or remand the matter. In sum, while the criteria for a 70 percent rating for major depressive disorder are met for the entirety of the appeal period, the preponderance of the evidence is against a rating in excess of 70 percent for his disability at any time since the grant of service connection. Therefore, the benefit of the doubt doctrine is not applicable, and entitlement to a rating in excess of 70 percent for major depressive disorder must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER An initial rating of 70 percent, but no higher, for major depressive disorder is granted, subject to the regulations governing the payment of monetary awards. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed with respect to the claim for connection for a bilateral hernia and that there is a complete record upon which to decide this claim so that the Veteran is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Although the Veteran was afforded a VA examination in April 2010 addressing the claim for service connection for a bilateral hernia that included an opinion to the effect that such disability was not caused by service, and a May 2010 addendum opinion of the same effect-referenced in the May 2010 rating decision and May 2013 Statement of the Case, but not in the physical or electronic record currently before the Board-these opinions do not reflect the proper standard of review pertinent to service connection claims based on aggravation when the condition at issue, as is apparently the case here. In this regard, while the January 1984 entrance examination is barely visible, a hernia condition is not "noted" when the Veteran was examined at service entrance. VAOPGCPREC 3-2003 (July 16, 2003); see also Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003). In this regard, the pre-service occurrence of a hernia recorded on the medical history collected in January 1984 at entrance to service does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). Furthermore, it appears that the examiner found that the hernia condition may have been a developmental or congenital disorder. In this regard, congenital or developmental defects are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. Service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. A congenital defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90 Given the above, the AOJ should arrange for an addendum opinion addressing the claim for service connection for a bilateral hernia from, if possible, the VA physician who examined the Veteran in April 2010 that is in accordance with the proper standard of review. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (noting that once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes). Also, while on remand, the AOJ will be requested to associate with the paper or electronic record the above referenced May 2010 addendum opinion to the April 2010 VA examination. See 38 C.F.R. § 3.159(c)(2); Dunn v. West, 11 Vet. App. 462 (1998) (Vet Center records constructively in possession of VA); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA treatment records are considered to be constructively contained in the claims folder and must be obtained before a final decision is rendered). Accordingly, the case is REMANDED for the following action: 1. Obtain the May 2010 addendum opinion to the April 2010 VA examination referenced in the May 2010 rating decision and May 2013 Statement of the Case. All reasonable attempts should be made to obtain this opinion. If the opinion cannot be obtained after reasonable efforts have been made, issue a formal determination that the opinion does not exist or that further efforts to obtain the opinion would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide the opinion, as set forth in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After the completion of the action requested above, the AOJ should obtain an addendum opinion from, if possible, the VA physician who conducted the April 2010 VA examination addressing the Veteran's claim for service connection for a bilateral hernia. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the physician, and the physician is asked to address the following: (A) The examiner should state whether the Veteran's bilateral hernia disorder constitutes a congenital or developmental defect or a disease (per VAOPGCPREC 82-90, in general, a congenital abnormality that is subject to improvement or deterioration is considered a disease). (i) If the Veteran's bilateral hernia disorder is considered a defect, was there additional disability due to disease or injury superimposed upon such defect during service? If so, please identify the additional disability. (ii) If the examiner finds that the bilateral hernia disorder is a disease, was it aggravated beyond the natural progression during his military service? Aggravation indicates a permanent worsening of the underlying condition as compared to a temporary increase in symptoms. (B) If a bilateral hernia disorder is not a congenital or developmental defect or disease, the examiner should offer an opinion as to whether there is clear and unmistakable evidence that the disorder pre-existed service. (i) If there is clear and unmistakable evidence that the bilateral hernia disorder pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder(s) did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there was an increase in the severity of the Veteran's bilateral hernia disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If there is no clear and unmistakable evidence that the bilateral hernia disorder pre-existed service, then the examiner is asked whether it is at least as likely as not that the disorder is directly related to service. In offering the opinions, the physician must consider the full record, to include the Veteran's lay statements regarding the incurrence of a hernia and the continuity of symptomatology. The rationale for any opinion offered should be provided. 3. After completing the above, and any other development as may be indicated, the Veteran's claim for service connection for a bilateral hernia should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations The Veteran has the right to submit additional evidence and argument on the matter 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 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 2014). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs