Citation Nr: 1601187 Decision Date: 01/12/16 Archive Date: 01/21/16 DOCKET NO. 14-28 578A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an initial rating greater than 70 percent for a mood disorder associated with voiding dysfunction. 2. Entitlement to higher initial ratings for voiding dysfunction, rated as 40 percent disabling effective July 18, 2008, 20 percent disabling effective April 22, 2010, and 60 percent disabling effective November 16, 2012. 3. Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU) prior to October 19, 2011. ATTORNEY FOR THE BOARD J. Rutkin, Counsel INTRODUCTION The Veteran served on active duty from November 1957 to May 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada dated in September 2011, December 2012, and February 2015. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to higher initial ratings for urinary dysfunction, and entitlement to TDIU prior to October 19, 2011 are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's mood disorder is not manifested by symptoms equivalent in severity to 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, and does not produce total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to an initial rating greater than 70 percent for a mood disorder are not satisfied. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.130, Diagnostic Code 9435 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied. See 38 U.S.C.A §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2015). Because this appeal stems from a granted service connection claim, the issue of whether there was adequate VCAA notice is moot, as the purpose of such notice was fulfilled with the grant of service connection. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, an April 2012 letter provided all notice required under the VCAA, followed by adequate time for the Veteran to submit information and evidence before initial adjudication or readjudication of this claim. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2007); Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); accord Prickett v. Nicholson, 20 Vet. App. 370 (2006). Concerning the duty to assist, the Veteran's service treatment records, VA treatment records, and private treatment records identified by him have been associated with the claims file. See 38 C.F.R. § 3.159(c). He has not identified any other records or evidence he wished to submit or have VA obtain. Additionally, a VA psychiatric examination was performed in November 2012 in which the examiner considered the Veteran's medical history, including conducting a review of the claims file, and set forth all pertinent examination findings, such that the Board is able to make a fully informed decision. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2015). There is no evidence indicating that there has been a material change in the severity of the Veteran's mood disorder since this examination was performed. See 38 C.F.R. § 3.327(a) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). Thus, further examination is not warranted. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (holding that a new VA examination is not required simply because of the passage of time since an otherwise adequate examination was conducted); accord VAOPGCPREC 11-95 (April 7, 1995). Accordingly, the duty to assist is satisfied. In light of the above, the Veteran has had a meaningful opportunity to participate effectively in the processing of this claim, and no prejudicial error has been committed in discharging VA's duties to notify and assist. See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011); Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010). II. Analysis The Veteran contends that an initial rating greater than 70 is warranted for his service-connected mood disorder. For the following reasons, the Board finds that entitlement to a higher initial rating is not established. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2015). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2015). Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Evaluations for distinct disabilities resulting from the same injury or disease can be combined so long as the symptomatology for one condition is not "duplicative or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2015) (recognizing that disability from distinct injuries or diseases may overlap). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. Id. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 125; 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant); 38 C.F.R. § 4.3 (providing that all reasonable doubt regarding the degree of disability will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's mood disorder has been rated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9435 which pertains to unspecified depressive disorder. With the exception of eating disorders, all mental health disorders are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment. See 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula, a 10 percent disability rating requires: 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. A 30 percent disability rating requires: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events). A 50 percent disability rating requires: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating requires: 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.) A 100 percent disability rating requires: 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. The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. See id. Rather, VA must consider all symptoms of a claimant's condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed. 1994) (DSM-IV). Id. at 443. (The DSM-IV has been recently updated with a Fifth Edition (DSM-5), and VA has issued an interim final rule amending certain provisions in the regulations to reflect this update, including the Schedule for Rating Disabilities. 79 Fed. Reg. 45093. The amendments only apply to applications that are received by VA or are pending before the agency of original jurisdiction on or after August 4, 2014; they do not apply to appeals already certified to the Board or pending before the Board. Id.) If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, 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. 38 C.F.R. § 4.126 (2015); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (noting that the "frequency, severity, and duration" of a veteran's symptoms "play an important role" in determining the disability level). The severity of the symptoms and the degree of occupational and social impairment they cause are independent factors; both must be satisfied to assign a given rating under the Rating Formula. See Vazques-Claudio, 713 F.3d at 116 (rejecting an interpretation of § 4.130 that would allow "a veteran whose symptoms correspond[ed] exactly to a 30 percent rating" to be granted a 70-percent rating solely because they affected most areas). In other words, there are two elements that must be met to assign a particular rating under the Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. See id. at 118 (holding that, in determining whether a 70 percent rating is warranted, VA must make "an initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation, an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas") (emphasis added). While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126. In evaluating psychiatric disorders, VA also considers a claimant's Global Assessment Functioning (GAF) scores, which are based on a scale set forth in the DSM-IV 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); DSM-IV. According to DSM-IV, a score of 61-70 indicates "[s]ome mild symptoms (e.g., depressed mood and mild insomnia OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." A score of 51-60 indicates "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." Id. A score of 41-50 indicates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A score of 31-40 indicates "[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work)." Id. A GAF score thus may demonstrate a specific level of impairment. See Richard, 8 Vet. App. at 267 (observing that a GAF score of 50 indicates serious impairment); accord Bowling v. Principi, 15 Vet. App. 1, 14-15 (2001). While an examiner's classification of the level of psychiatric impairment as reflected in a GAF score can be probative evidence, such a score is by no means determinative of the rating assigned by VA in evaluating a psychiatric disorder under the rating criteria. See 38 C.F.R. §§ 4.2, 4.126 (2014); VAOPGCPREC 10-95 (March 31, 1995). Rather, VA must take into account all of the Veteran's symptoms and resulting functional impairment as shown by the evidence of record in assigning the appropriate rating, and will not rely solely on the examiner's assessment of the level of disability at the time of examination. See 38 C.F.R. § 4.126. The preponderance of the evidence weighs against assignment of a 100 percent rating for the Veteran's service-connected mood disorder. In the November 2012 VA examination report, the examiner indicated that the Veteran's mood disorder with "major depressive-like episode" resulted in occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. At the examination, the Veteran reported that he neglects self-care due to depression and reduced motivation. He often prepared his own simple meals as his wife was often away taking care of grandchildren. He stated that his wife did most of the cleaning, but that he would assist with vacuuming, dusting, and yard work. He would also go shopping with his wife. Leisure activities included using the Internet, watching television, caring for two pet dogs, and seeing grandchildren. He would also occasionally go out with his wife to a movie, but otherwise rarely go out due to financial issues. With regard to the Veteran's occupational history, the November 2012 VA examination report reflects that he discontinued working in the "mid 2000's" when medical problems including treatment for prostate cancer and complications of that procedure began to significantly impact his business, resulting in substantial financial losses. He last worked as a department store sales associate until about two years earlier when his "knee forced him to leave that job." With regard to symptoms, the November 2012 VA examination report reflects that the Veteran reported ongoing major depressive symptoms related to his urinary dysfunction, including sadness, loss of interest in normal activities, and neglect of self-care due to reduced motivation. He described some suicidal ideation, but denied any intent to act on his thoughts. He stated that he cried on a daily basis. Sleep apnea and urinary frequency caused interruptions of his sleep. He also reported normal energy. No manic symptoms were elicited. He reported frequent irritability that he expressed verbally or by isolating. He denied violent thoughts or behaviors. Worry about financial and situational problems interfered with concentration. He reported experiencing panic symptoms once a month. He denied obsessive-compulsive and psychotic symptoms. With regard to objective clinical findings, the November 2012 VA examination report reflects that on examination, the Veteran was neatly dressed and groomed. His mood was moderately to severely depressed. His affect was consistent with mood with some tearfulness. His speech was fluent in rate, and volume and intonation of speech were consistent with affect. Thought processes were notable for depressive themes, but were logical and goal directed. Cognition appeared intact with average or better intelligence based on verbal production. The examiner concluded that the Veteran's psychiatric disorder was manifested by depressed mood, anxiety, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, and neglect of personal appearance and hygiene. It was not manifested by memory loss for names of close relatives, own occupation, or own name, spatial disorientation, 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. The examiner assigned a GAF score of 52, indicating moderate symptoms or moderate functional impairment. See DSM-IV. The Veteran's symptoms are not equivalent in severity to the symptoms associated with a 100 percent rating under the General Rating Formula. He does not have any of the symptomatology listed for that rating. Rather, his symptoms more closely approximate the symptoms corresponding to a 70 percent rating or less under the General Rating Formula. See 38 C.F.R. § 4.130. The fact that they are readily captured by the criteria for a 70 percent rating or below indicates that they are not equivalent in severity to the symptoms associated with a 100 percent rating, which necessarily requires more severe symptoms. In any event, the evidence does not otherwise support a finding of equivalency. Because his symptoms are not equivalent in severity to a 100 percent rating, consideration of their frequency or duration is moot. See Mauerhan, 16 Vet. App. at 443; Vazquez-Claudio, 713 F.3d at 117. Moreover, and in the alternative, the Veteran's symptoms do not produce total occupational and social impairment. The November 2012 examiner indicated that they caused deficiencies in most areas, but not total occupational and social impairment. The Veteran himself has not asserted that he is unable to work due solely to his psychiatric symptoms. Further, he does not have total social impairment, as he maintains a relationship with his wife in which he helps share in chores and shopping, occasionally goes to movies with her, and enjoys seeing his grandchildren. This evidence weighs against total social impairment. He only cited financial considerations as limiting recreational outings with his wife, which does not support total social impairment. Accordingly, the Veteran's symptoms do not produce the level of occupational and social impairment required for a 100 percent rating. See 38 C.F.R. § 4.130, General Rating Formula. Because the Veteran's symptoms are not the same or equivalent in severity to the symptomology corresponding to a 100 percent rating, and do not result in total occupational and social impairment, the criteria for a 100 percent rating are not more nearly approximated. See 38 C.F.R. § 4.130, DC 9435; Vazques-Claudio, 713 F.3d at 116, 188. Rather, the preponderance of the evidence shows that the Veteran's mood disorder more nearly approximates the criteria for a 70 percent rating under DC 9435 and the General Rating Formula. See 38 C.F.R. § 4.130. The evidence shows that the Veteran's psychiatric disorder has not met or approximated the criteria for a rating greater than 70 percent at any point during the pendency of this claim, for the reasons explained above. Rather, it has more nearly approximated the criteria for a 70 percent rating throughout this period. Thus, staged ratings are not appropriate for the time period under review. See Hart, 21 Vet. App. at 509-10; Fenderson, 12 Vet. App. at 126. The Board notes that TDIU has already been assigned since the effective date of service connection for the Veteran's mood disorder, and there is no evidence or assertion that his psychiatric disability alone produces unemployability. Accordingly, the issue of entitlement to TDIU based solely on the Veteran's mood disorder has not been raised. See 38 C.F.R. §§ 3.340, 4.16 (2015); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that if the claimant or the record reasonably raises the question of unemployability due to the disability for which an increased rating is sought, then part and parcel of the claim is the issue of entitlement to TDIU based on that disability). Referral of the Veteran's psychiatric disorder for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008). A comparison of his symptoms and resulting functional impairment with the schedular criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). In this regard, as explained above, the Veteran's symptoms as well as their effects on occupational and social functioning and general level of severity are contemplated by the General Rating Formula, which takes into account these and similar symptoms and the degree of occupational and social impairment they cause. See 38 C.F.R. § 4.130, DC 9435, General Rating Formula. Although a given symptom may not be specifically mentioned in the General Rating Formula, the symptoms set forth therein are not meant to constitute an exhaustive list but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan, 16 Vet. App. at 442. Thus, the fact that a given symptom is not mentioned in the rating criteria, such as crying daily (which at any rate may be akin to symptoms such as "disturbances of mood" under the General Rating Formula), is not in itself a basis for extraschedular referral absent evidence that it produces disability distinct from, or more severe than, the levels of disability contemplated by the schedular criteria such as to render their application impractical. Here, the evidence shows that the Veteran does not have signs, symptoms, or functional impairment resulting in disability distinct from, or more severe than, the disability picture contemplated by a 70 percent rating under the General Rating Formula, such as to render application of the regular schedular standards impractical. As discussed above, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Thus, the schedular criteria are generally assumed to adequately account for an individual's circumstances, even if they do not specifically address such circumstances or challenges unique to the claimant. See id.; 38 C.F.R. § 4.1; cf. VAOPGCPREC 6-96 (August 16, 1996) (holding that the fact that circumstances specific to a claimant may cause the effects of a service-connected disability to be more profound in that claimant's case does in itself provide a basis for extraschedular referral). In short, there is no indication that the Veteran's symptoms and clinical findings are so exceptional or unusual in relation to the schedular criteria such as to render application of the rating schedule impractical. Accordingly, as the first Thun factor is not satisfied, consideration of the other Thun factors is moot, and the Board will not refer the case for extraschedular consideration. See 38 C.F.R. § 3.321(b); Thun, 22 Vet. App. at 114. The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the combined effects of a veteran's service-connected disabilities must also be considered in determining whether the schedular evaluations are adequate under § 3.321(b)(1). Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014). In this regard, the Federal Circuit observed that "§ 3.321(b)(1) performs a gap-filling function [that] accounts for situations in which a veteran's overall disability picture establishes something less than total unemployability, but where the collective impact of a veteran's disabilities are nonetheless inadequately represented." Because entitlement to TDIU is already in effect since the effective date of service connection for the Veteran's mood disorder, consideration of whether the combined impact of multiple service-connected disabilities warrants extraschedular referral is moot, as such referral would only potentially come into play in situations when less than a total rating has been assigned. See id. In sum, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to an initial rating greater than 70 percent for the Veteran's mood disorder is denied. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to an initial rating greater than 70 percent for a mood disorder associated with voiding dysfunction is denied. REMAND The initial evaluation of the Veteran's urinary dysfunction and the issue of entitlement to TDIU prior to October 19, 2011 must be remanded for further action to ensure they are afforded every due consideration. The AOJ must readjudicate and issue a supplemental statement of the case (SSOC) regarding the issue of entitlement to a higher initial rating for urinary dysfunction prior to November 16, 2012. The August 2014 statement of the case (SOC) only addresses the issue of entitlement to a rating greater than 60 percent. However, this SOC stems from the Veteran's notice of disagreement (NOD) with the September 2011 rating decision that granted service connection for dysuria, urinary retention, and nocturia under 38 U.S.C. 1151 effective July 18, 2008. The grant of a 60 percent rating for this disability in the December 2012 rating decision effective November 16, 2012 did not abrogate the Veteran's appeal regarding the evaluation of his urinary dysfunction prior to that date. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a grant of a higher rating during the course of an appeal, but less than the maximum benefits allowable, does not abrogate the appeal). Therefore, in accordance with 38 C.F.R. §§ 19.26(d) and 19.29 (2015), the RO must readjudicate the initial evaluation of the Veteran's urinary dysfunction since the July 2008 effective date of service connection, and, if the benefits sought on appeal are not granted, issue an SSOC. The Board notes in this regard that the Veteran already exercised his right to de novo review of the September 2011 rating decision by a Decision Review Officer (DRO) when he submitted his NOD. See 38 C.F.R. § 3.2600 (2015). Further, because the Veteran already perfected his appeal, he need not separately perfect an appeal of the evaluation of his urinary dysfunction prior to November 16, 2012. Cf. 38 C.F.R. §§ 20.200, 20.202, 20.302 (2015); Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). The RO must also issue an SOC or SSOC addressing entitlement to TDIU prior to October 19, 2011. In this regard, the issue of entitlement to TDIU prior to October 19, 2011 is part and parcel of the initial evaluation of the Veteran's service-connected urinary dysfunction. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); 38 C.F.R. §§ 3.340, 4.16 (2015). Specifically, a February 2009 VA treatment records show that the Veteran reported discontinuing work due to urinary problems around July 2008. Similarly, in his August 2014 formal application for TDIU (VA Form 21-8940), the Veteran indicated that he stopped working in December 2008 due to residuals of his 2003 prostate cancer surgery. The Veteran's service-connected urinary dysfunction is a result of that surgery, and was granted under 38 U.S.C. 1151. The Veteran also submitted an October 2015 NOD in response to the February 2015 rating decision granting TDIU effective October 19, 2011, arguing that TDIU should be granted back to the effective date of service connection for his urinary dysfunction, thus further raising the issue of TDIU in connection with the initial evaluation of this disability. Accordingly, the RO must adjudicate the issue of entitlement to TDIU since the July 2008 effective date of service connection for urinary dysfunction, including whether referral for extraschedular consideration is warranted if the requirements for schedular consideration are not met. See 38 C.F.R. § 4.16(b). If the benefits sought are not granted, an SOC or SSOC addressing entitlement to TDIU prior to October 19, 2011, including on an extraschedular basis if warranted, is required. See 38 C.F.R. §§ 19.26(d), 19.29. However, the Veteran need not perfect an appeal of this issue in order for it to be certified to the Board, as it is already under the Board's appellate jurisdiction by virtue of the initial evaluation of his urinary dysfunction. See Rice, 22 Vet. at 453. Because the outcome of entitlement to an initial rating greater than 60 percent for urinary dysfunction may be affected by any further action taken on the above issues, the Board will defer consideration of this issue at this time. See Harris v. Derwinski, 1 Vet. App 180, 183 (1991) (two issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on the resolution of the second issue). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) After completing any further development that may be indicated, readjudicate the issue of entitlement to a higher initial evaluation of urinary dysfunction from the July 2008 effective date of service connection forward, and entitlement to TDIU prior to October 19, 2011 (i.e. from July 2008 to October 2011), including whether referral for extraschedular consideration is warranted. If the benefits sought are not granted, the Veteran and his representative (if any) must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). These issues must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs