Citation Nr: 1621780 Decision Date: 06/01/16 Archive Date: 06/13/16 DOCKET NO. 13-07 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating in excess of 30 percent for depressive disorder with insomnia (also diagnosed as dysthymia with panic disorder) prior to March 17, 2014. 2. Entitlement to a compensable rating for stress fractures of the knees and lower legs. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). 4. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Brant, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from June 1995 to July 1996. This case is before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in June 2009 by a Regional Office (RO) of the Department of Veterans Affairs (VA). Although the Veteran filed a Notice of Disagreement with respect to the issues of entitlement to increased ratings for depressive disorder with insomnia and stress fractures of the knees and lower legs, and entitlement to service connection for bilateral hearing loss, tinnitus, and bilateral carpal tunnel, she limited her appeal on her VA Form 9 to entitlement to increased ratings for depressive disorder with insomnia and stress fractures of the knees and lower legs. Thus, the Board concludes that the issues of entitlement to service connection for bilateral hearing loss, tinnitus, and bilateral carpel tunnel are not currently in appellate status. The Board notes that during the appeal period, in June 2009, the Veteran's service-connected depressive disorder with insomnia was increased to 30 percent disabling, effective June 25, 2008, the date of her increased rating claim. In February 2015, it was again increased to 100 percent disabling, effective March 17, 2014. However, as the Veteran has not been granted the maximum benefit allowed for the period prior to March 17, 2014, and she has indicated that she wishes to continue her appeal, the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims held, in substance, that every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that her service-connected disability prevents her from working. In this case, the record raises a TDIU issue, as the Veteran indicated that she stopped working in 2009, and has described occupational impairment from her service-connected depressive disorder with insomnia and stress fractures of the lower legs and knees. See, e.g., July 2010 VA examination (noting she last worked in 2009); March 2013 VA Form 9 (noting her stress fractures affected her ability to work); and March 2014 statement from treating psychiatrist (indicating that the Veteran was wholly and completely disabled from gainful employment due to her chronic major depressive disorder and chronic pain). Accordingly, the Board has characterized the issues on appeal so as to include a claim for entitlement to TDIU. The record shows that the issue of entitlement to SMC based on the need for regular aid and attendance is raised. In a medical statement dated in March 2014, the Veteran's treating VA psychiatrist indicated that the Veteran was incapable of living independently, and was currently living with her mother and sister. The psychiatrist based this opinion on the symptomatology resulting from the Veteran's service-connected depressive disorder and bilateral knee and leg disabilities. Under Akles v. Derwinski, 1 Vet. App. 118 (1991), the issue of entitlement to SMC is part and parcel of a claim for increased rating. Thus, the Board finds that entitlement to SMC based on the need for regular aid and attendance must be considered in conjunction with the claims for increased compensation on appeal. The issues of entitlement to a compensable rating for stress fractures of the knees and lower legs; entitlement to TDIU; and entitlement to SMC based on the need for regular aid and attendance are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT For the period prior to March 17, 2014, the Veteran's depressive disorder with insomnia (also diagnosed as dysthymia with panic disorder) more nearly approximated occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW For the period prior to March 17, 2014, the criteria for a rating of 50 percent, but no higher, for the Veteran's service connected depressive disorder with insomnia (also diagnosed as dysthymia with panic disorder) were met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The RO provided pre-adjudication VCAA notice by a letter dated in August 2008. Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, identified post-service treatment records, and lay statements have been associated with the record. There is no indication in the record that the Veteran is in receipt of Social Security Administration disability benefits. During the appeal period, the Veteran was afforded a VA mental health examination in September 2008. The Board has carefully reviewed the VA examination of record and finds that the examination, along with the other evidence of record, is adequate for rating purposes. Thus, with respect to the Veteran's claim for entitlement to an increased rating for her depressive disorder with insomnia (also diagnosed as dysthymia with panic disorder), there is no additional evidence which needs to be obtained. As the Veteran has not identified any additional evidence pertinent to the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. II. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Major depressive disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9434. The rating criteria provide that a 30 percent evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9434. 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 effective work and social relationships. Id. 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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. When evaluating 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 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The use of the term "such as" 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A GAF (Global Assessment of Functioning) score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). This is more commonly referred to as DSM-IV. A GAF of 21 to 30 is defined as behavior considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriate, suicidal preoccupation) or an inability to function in almost all areas (e.g., stays in bed all day, no job, home or friends). A GAF of 31 to 40 is indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any 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; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF of 41 to 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as moderate 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). A GAF of 61 to 70 is indicative of 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 GAF of 71 to 80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). The Board notes that an examiner's classification of the level of psychiatric impairment by a GAF score is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. Effective March 19, 2015, VA amended the portion of the Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replace them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 80 Fed. Reg. 53, 14308 (March 19, 2015). The provisions of the final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction on or after August 4, 2014. As the Veteran's claim was pending before this date, the amendment is not applicable. Here, in June 2009, the RO increased the Veteran's depressive disorder with insomnia to 30 percent disabling, effective June 25, 2008, the date of her increased rating claim. In February 2015, the RO increased the Veteran's depressive disorder with insomnia (also diagnosed as dysthymia with panic disorder) rating to 100 percent, effective March 17, 2014. Therefore, the question is whether a rating in excess of 30 percent is warranted during the appeal period prior to March 17, 2014. Reviewing the relevant evidence of record, on VA examination in September 2008, the Veteran denied regular outpatient psychiatric care. She noted approximately a week prior, her current VA primary care physician prescribed her Citalopram for her depression and insomnia. She noted that she was currently steadily employed. The Veteran reported insomnia; she noted four to five hours of light sleep each night. She reported dreaming of dead family members. The Veteran reported feeling sad about the pain in her legs and arms. She denied crying openly. She denied suicidal ideation or attempts. The Veteran indicated that she only ate one meal a day, and would seldom eat at home unless some else cooked. The Veteran reported few friends outside of her employment. She denied socializing, and indicated that she even isolated herself in her aunt's home. She noted that she lived with her aunt, who attended church with her own friends. She denied nightmares. She reported occasional "flashbacks" or "shadows" that she saw in service. She indicated that this occurred a couple times a year. She noted that in the past year, she occasionally saw her deceased uncle in a vision. The examiner described the Veteran as quiet, not particularly spontaneous, underproductive, coherent, and relevant in her responses. The examiner noted an increased reaction time to many questions. The examiner found that the Veteran was "slowed." The Veteran did not show loosening of her thought processes or associations or rambling or circumstantial speech. The Veteran indicated that she would hide most of her symptoms in her workplace, although they understand some of it and assist her when they can. The Veteran had a constricted affective display of a significant degree. She did not laugh, smile, or joke about anything. The Veteran noted irritability due to pain. She denied angry outbursts. The Veteran did not show any overt psychotic process. Although the Veteran denied auditory or visual hallucinations, the examiner noted some unusual experiences of premonitions of people around her and seeing "shadows" in the dark. The Veteran indicated that these visual experiences were out of nightmares rather than flashbacks. The Veteran also described vivid dreams of dead people. The Veteran was oriented to time, place, and person. Her insight and judgment were fair. The Veteran had impairment in her thought processes and communication. She had great difficulty with concentration. The Veteran denied suicidal or homicidal thoughts, plans, or intent. She exhibited an ability to maintain her minimal personal hygiene. The Veteran exhibited some short-term memory loss and recall problems. She reported engaging in perimeter searches at night in terms of checking windows and doors. She reported panic attacks occurring once or twice a month and lasting five to ten minutes. She described heart pounding, chest pain, shortness of breath, and lightheadedness. The Veteran indicated that when she experienced a panic attack at work, she would go to the restroom. The Veteran exhibited some impaired impulse control, but denied ever raising her voice. The examiner diagnosed dysthymia from the in-service stress fractures with an associated panic disorder without agoraphobia. The examiner assigned a GAF of 60, indicating moderate impairment. The examiner indicated that the Veteran had a flattened affect with a major constriction of her affective display. He noted no current suicidal or homicidal ideation. The examiner noted that the Veteran's symptomatology of depression was associated with occasional panic attacks about once or twice a month. He noted moderate difficulty in her social life. The examiner indicated that the Veteran was avoidant, socially isolative and withdrawn. The examiner indicated that the Veteran basically had no social life and very few friends. He noted that she had some social life with her fellow co-workers, but this did not expand outside of work. The examiner found some occupational impairment due to her panic disorder symptomatology and withdrawal. The examiner noted problems with concentration. The examiner indicated that the Veteran's panic disorder interrupted her work, as she had to leave and go to the restroom. The examiner noted that the Veteran had some irritability with her co-workers, but indicated that they "understand." The examiner found reduced reliability and productivity due to forgetting phone conversations and messages left at work due to decreased concentration and panic attacks where she would run to the bathroom quickly and "hide." In a VA treatment record dated in June 2008, the Veteran denied suicidal or homicidal ideation. In a VA treatment record dated in October 2008, the Veteran indicated that her mood was not worse or better. She denied suicidal ideation. The impression was rule out mood disorder due to general medical condition and chronic insomnia. In a subsequent October 2008 VA treatment record, the Veteran indicated that her sleep was somewhat better (5/10). She noted; however, that her sleep was not deep, and she woke up wondering if things she dreamed about actually happened. She reported that she was not on an anti-depressant since she stopped Citalopram. She rated her mood as 6/10. The Veteran denied suicidal ideation. She indicated that she was still working, but her energy remained low. The assessment was possible depressed mood due to general medical condition. In a VA treatment record dated in June 2009, the Veteran reported continued problems with sleep and depression. She requested a different sedative because of hallucinatory experiences with Zolpidem. She related a recent episode from two weeks prior in which she heard cats fighting and rat noises (that were not present). The Veteran indicated that she tried hard to ignore her depression. She endorsed low energy and feeling lazy. She denied suicidal ideation. In July 2009, the Veteran reported that her chronic pain was causing her to be depressed. However, she indicated that she did not feel the need to take an anti-depressant. She denied suicidal or homicidal ideation. In a VA treatment record dated in August 2009, the Veteran indicated that she was not doing well with respect to her pain and depression. She reported a loss of appetite. She noted that she had only been going into work three or four times a week due to this. The physician noted that the Veteran had a flat affect; he indicated that she kept her head down and avoided eye contact when speaking. The assessment was depression/anxiety. The physician noted that the Veteran had progressive weight loss (wasting). The physician noted that the Veteran had anger and increased nervousness on Effexor. The physician advised the Veteran to see a psychiatrist, as her condition was now outside the scope of her expertise. The physician noted that although the Veteran denied suicidal ideation, she believed she was severely depressed and warranted immediate psychiatric evaluation. The physician noted that the Veteran had missed multiple mental health appointments in the past. In a subsequent August 2009 VA treatment record, the Veteran denied symptoms of paranoid delusion or tactile hallucination. She noted that at times she smelled the odor of a hospital or the smell of urine or blood (olfactory hallucination). She noted that she used to work in the lab in service and handled blood products. The Veteran denied symptoms of mania or problems with "nerves." She denied a history of anxiety in closed spaces. She denied any problems with alcohol or drugs. The Veteran reported that she was living with her widowed aunt. She noted some contact with two other sisters in the area. She denied a history of marriage or any romantic relationships. The psychiatrist indicated that from the information provided, "a major depressive episode of a severe nature occurred." The psychiatrist noted that the Veteran's ongoing physical problems appeared to have precipitated this depressive episode, which seemed to be more than mild in severity. In a subsequent August 2009 VA treatment record, the Veteran noted audio and visual hallucinations during service. She indicated that since one particular incident, she has had many flashbacks and nightmares about this event. She reported that when she has flashbacks, she experiences anxiety attacks where she would feel her heart pumping very fast, get sweaty, feel like she wanted to cry, and get very scared. She noted that these attacks occurred every day and could be triggered by a smell, noise, or anything that visually reminded her of the event. She indicated that this has led her to avoid certain areas that remind her of the event, including basements, long dark dim hallways, and any open area in a building that did not have people in it. She endorsed continuing to see these spirits at sporadic intervals at many different places, including her work and home. She noted that they made her very scared, and she could sense their presence even when she closed her eyes. The Veteran also noted several occasions where she could hear someone speaking but could not understand what they were saying. The psychiatrist indicated that the Veteran currently met the criteria for depression, including decreased sleep, interest, appetite, concentration, and psychomotor retardation. The Veteran denied suicidal or homicidal ideation. She admitted to feeling helpless and worthless at times. The Veteran reported that she currently lived with her aunt. She indicated that she currently worked as a clerk for a plumbing company. The psychiatrist did not find any impairments in the ability to care for self. The Veteran's hygiene was appropriate. The Veteran's affect was normal. The Veteran was tearful when speaking of her first incident with the spirits and with her frustration of her doctor not being able to figure out what was wrong with her. The Veteran's mood was sad and dysphoric. The examiner noted auditory and visual hallucinations. There were no delusions. The examiner noted impairment of recent memory; the Veteran described having trouble with names and directions. She described getting lost on her way to work three days per week. Cognition was intact and general fund of knowledge was satisfactory. Insight and judgment were intact. Impulse control was good. The psychiatrist diagnosed anxiety disorder not otherwise specified and major depression disorder. The psychiatrist assigned a GAF of 65. The psychiatrist explained that the Veteran presented with a longstanding untreated depression. The psychiatrist noted that the Veteran's somatic symptoms were combined with an anxiety disorder stemming from an incident with spirits in service, which the Veteran continued to see sporadically in her home and work. The psychiatrist indicated that the Veteran reported being afraid of these spirits and did not know why they came to her. In a subsequent August 2009 VA treatment record, the Veteran reported feeling "slow." She endorsed trouble concentrating and a lack of energy to do anything. She noted that her depression had not changed since her last visit. She indicated that her appetite continued to be poor. The Veteran reported that she was sleeping a little better. With respect to her depression, she indicated that she had not done anything that used to make her happy in over five years. She explained that she did not have the energy to do these things anymore and would rather just stay at home. The examiner noted that the Veteran's eye contact was very poor. Her speech was not spontaneous, as she only spoke when directly asked a question. Her affect was flat, with restricted range. The Veteran denied any suicidal or homicidal ideation. The assessment was depression, with a major factor being a lack of energy to do the things she used to do. The psychiatrist also noted panic disorder not otherwise specified. In a March 2010 VA treatment record, the Veteran reported that she felt the same emotionally. She indicated that she had been staying in the house and was reticent to come out. In September 2010, the physician noted physiologic tremors of the bilateral arms and face due to anxiety. On her appeal on a VA Form 9 dated in March 2013, the Veteran indicated that she was experiencing almost all of the symptoms warranting a 50 percent rating, such as panic attacks more than once a week, impairment of short and long-term memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. In a VA treatment record dated in March 2014, the Veteran indicated that she last saw spirits several weeks ago. She denied suicidal or homicidal ideation. In another March 2014 VA treatment record, the Veteran indicated that she had suicidal ideation chronically since leaving service, but has never planned to act on this ideation. Upon careful review of the evidence of record, the Board finds that, for the period prior to March 17, 2014, the objective medical evidence, and the Veteran's statements regarding her symptomatology, more nearly approximated symptoms associated with a 50 percent disability rating. Similarly, the Board finds that the preponderance of the evidence is against an evaluation in excess of 50 percent for this time period. Neither the lay nor the medical evidence of record more nearly approximated the frequency, severity, or duration of psychiatric symptoms required for a 70 percent disability evaluation based on occupational and social impairment, with deficiencies in most areas. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. The Board has considered the VA treatment records, including the September 2008 VA examination report, and lay statements by the Veteran regarding the impact of her depressive disorder with insomnia (also diagnosed as dysthymia with panic disorder) on her occupational and social impairment. As contemplated by a 50 percent rating, the Veteran's symptoms reflect occupational and social impairment with reduced reliability and productivity. During the period prior to March 17, 2014, the Veteran's commonly reported psychiatric symptoms consisted of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Board notes further that the September 2008 VA examiner found occupational and social impairment with reduced reliability and productivity, impairment generally consistent with a 50 percent evaluation. However, as explained below, the evidence does not support a 70 percent rating for any time period on appeal. The Board does not find occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, to warrant a 70 percent rating. Although not dispositive, the evidence of record reflects the Veteran never suffered from suicidal ideation; obsessional rituals which interfered 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; and/or the inability to establish and maintain effective relationships. While it is documented that the Veteran has struggled with social interactions, and has admitted to isolating herself from others, there is no indication that the severity of her depressive disorder with insomnia (also diagnosed as dysthymia with panic disorder) has led to an inability to establish and maintain relationships, as accounted for in the criteria for a 70 percent evaluation. While the Veteran's social relationships have no doubt been impaired by her symptoms of depressive disorder with insomnia (also diagnosed as dysthymia with panic disorder), the criteria of a 70 percent evaluation describe an "inability" to establish and maintain effective relationships. The evidence suggests that while the Veteran has difficulty establishing and maintaining relationships, there is no evidence she has an inability to do so. As the record reflects, she has established and maintained some relationships with family members and co-workers during this timeframe. In her September 2008 VA examination, the Veteran reported few friends outside of her employment. The Board acknowledges that although the Veteran denied socializing, and indicated that she isolated herself in her aunt's home, she nonetheless described some social life with her fellow co-workers. In this regard, the examiner noted moderate difficulty in the Veteran's social life. The examiner indicated that the Veteran was avoidant, socially isolative and withdrawn. The examiner noted that the Veteran had some social life with her fellow co-workers, but this did not expand outside of work. Additionally, in an August 2009 VA treatment record, the Veteran noted that she lived with her aunt and had contact with two of her sisters who lived in the area. Moreover, the Board notes that the Veteran has reported feeling irritable due to her chronic pain. For example, in her September 2008 VA examination, the examiner indicated that the Veteran exhibited some impaired impulse control, but denied ever raising her voice. The examiner noted that the Veteran had some irritability with her co-workers, but stated that they "underst[ood]." However, the record does not reflect that the Veteran was prone to violence or outbursts due to her irritability. In this regard, the Veteran has consistently denied angry outbursts. See, e.g., September 2008 VA examination. Therefore, there is no indication that the Veteran's irritability has risen to the severity, frequency, or duration consistent with a severe deficiency as to the Veteran's occupational or social capability supporting a 70 percent rating. In terms of the Veteran's mood, during this time period, the Veteran has frequently reported symptoms of depression and anxiety. Nonetheless, a 50 percent evaluation accounts for such effects as displayed by the Veteran during this time period. Moreover, throughout the entire timeframe on appeal, the Veteran exhibited fair or good insight and judgment, and her thought processes were logical and goal-directed. In addition, the record indicates that the Veteran has reported some mild memory loss which at times affected her work; however, there is no indication that this memory loss includes the names of close relatives, her occupation, or her own name. Throughout the entire period on appeal, the Veteran has always been oriented to time and place. The Board acknowledges that memory loss can be indicative of criteria consistent with a higher evaluation; however, in the Veteran's case, her reported mild memory loss did not manifest with the severity, frequency, and duration consistent with an evaluation higher than 50 percent. With respect to suicidal ideation, the Board acknowledges that in a March 2014 VA treatment record, the Veteran endorsed chronic suicidal ideation since leaving service with no plans to act on it. However, a review of the medical evidence of record reveals that prior to March 17, 2014, the Veteran consistently denied suicidal or homicidal ideation. Finally, although the Veteran has consistently denied delusions, she has occasionally noted that she hears voices and sees "shadows." For example, in her September 2008 VA examination, the Veteran reported occasional "flashbacks" or "shadows" that she saw in service. She indicated that this occurred a couple times a year. Additionally, in an August 2009 VA treatment record, a psychiatrist noted that the Veteran had an anxiety disorder stemming from an incident with "spirits" in service, which the Veteran continued to see sporadically in her home and work. The Board acknowledges that hallucinations can be indicative of criteria consistent with a higher evaluation; however, in the Veteran's case, these reported incidents did not manifest with the severity, frequency, and duration consistent with persistent delusions or hallucinations. In light of the foregoing, the Board finds that the 50 percent rating for depressive disorder with insomnia (also diagnosed as dysthymia with panic disorder) pursuant to Diagnostic Code 9434 is warranted for the entire appeal period prior to March 17, 2014. While the Board finds that the Veteran's social and occupational and social impairment is more in line with a 50 percent evaluation, the evidence of record does not support an evaluation in excess of 50 percent. Furthermore, the Board notes the GAF scores taken during this period. While not dispositive of the Veteran's condition, they do provide insight into the severity of her depressive disorder with insomnia (also diagnosed as dysthymia with panic disorder) during this period. As previously noted, GAF scores between 61 and 70 are indicative of 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; scores from 51 to 60 are defined as moderate 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); and scores from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting). Here, the Veteran's GAF scores were almost exclusively in the "mild" to "moderate" range (60-65). When the GAF scores are viewed in light of the other evidence of record, specifically the VA examination and treatment records during this time period, the Board finds that the overall disability picture as manifested by social and occupational impairment resulting from the Veteran's depressive disorder with insomnia (also diagnosed as dysthymia with panic disorder) during the period on appeal, more closely approximates a 50 percent rating. Thus, the Board finds that for the period prior to March 17, 2014, the Veteran does not have occupational and social impairment, with deficiencies in most areas. She does have some deficiencies in several areas, but the greater weight of evidence demonstrates that it is to a degree that is contemplated by the 50 percent rating assigned herein. Furthermore, even resolving any reasonable doubt in the Veteran's favor, the Board finds that she does not meet the requirements for an evaluation greater than the assigned 50 percent schedular rating now assigned. To the extent that the Veteran has any of the criteria for a 70 percent rating or higher, see Mauerhan, 16 Vet. App. at 442, the Board concludes that her overall level of disability does not exceed the criteria for a 50 percent rating. In this regard, the Veteran's disability picture is more in line with the symptoms associated with a 50 percent rating. In summary, the Board finds that the 50 percent disability rating assigned for the period prior to March 17, 2014, contemplates the frequency, severity, and duration of her depressive disorder with insomnia (also diagnosed as dysthymia with panic disorder) symptoms, while resolving all doubt in favor of the Veteran. The rating now assigned is based on all the evidence of record, rather than any isolated medical finding or assessment of level of disability. 38 C.F.R. § 4.126(a). Accordingly, her myriad of symptoms for the period prior to March 17, 2014, did not more nearly reflect the frequency, severity, and duration of symptoms ratable at the 70 percent disability evaluation, as discussed above. Extraschedular Considerations While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of Compensation for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected depressive disorder with insomnia (also diagnosed as dysthymia with panic disorder) for the period prior to March 17, 2014, was inadequate. A comparison between the level of severity and symptomatology of the Veteran's depressive disorder with insomnia with the established criteria shows that the rating criteria reasonably describe her disability level and symptomatology with respect to the symptoms she experienced. Specifically, the Veteran primarily reported symptoms such as depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, but these symptoms appeared to have only a moderate impact on her social and occupational functioning. Thus, the Veteran's schedular rating was adequate to fully compensate her for the disability on appeal. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Moreover, the Veteran has also not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Accordingly, referral for consideration of an extraschedular rating is not warranted. Finally, the Board notes that the inferred issue of entitlement to TDIU will be discussed in more detail in the Remand below. As such, that issue is not for consideration here. ORDER For the period prior to March 17, 2014, entitlement to an increased rating of 50 percent for depressive disorder with insomnia (also diagnosed as dysthymia with panic disorder), but no more, is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND Increased Rating - Stress Fractures of the Knees and Lower Legs The Board observes that the Veteran was last afforded a VA examination for this disability in October 2008, and evidence added to the file after this date indicates that her symptomatology may have worsened. For example, on her appeal on a VA Form 9 dated in March 2013, the Veteran reported constant excruciating pain whenever she moved her legs. She noted that it was impossible to squat. She indicated that this pain affected her ability to work, as she had trouble driving, walking or sitting for long periods of time. The Veteran described her knee and ankle disabilities as "severe." She indicated that she wore knee and ankle braces, and custom inserts in her shoes at all times. She noted further that she had to start using a shower chair due to the pain and possibility of falling. VA treatment records also showed continued complaints of worsening symptomatology regarding the knees and lower legs. In light of the evidence suggesting that the Veteran's service-connected stress fractures of the knees and lower legs may have worsened, the Board finds that under the duty to assist, a new VA examination is necessary to clarify the current severity of her disability. Furthermore, the Board observes that VA treatment records throughout the appeal period reveal varying complaints and diagnoses pertaining to the bilateral lower extremities. It is unclear from the evidence of record which symptomatology is specifically related to the service-connected stress fractures of the knees and lower legs. As such, the examiner must clarify the current nature and severity of the Veteran's service-connected stress fractures of the knees and lower legs, to include distinguishing which manifestations are the result of the service-connected disability, and which are due to nonservice-connected disabilities. TDIU The Board notes that since it has determined that a claim for a TDIU is part of the increased rating claims, the Veteran has not been sent a notification letter in compliance with 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2015). The Board therefore finds that the issue of entitlement to a TDIU must be remanded for appropriate notice and development. SMC - Aid and Attendance As noted above, the record shows that the issue of entitlement to SMC based on the need for regular aid and attendance is raised. In this regard, in a medical statement dated in March 2014, the Veteran's treating VA psychiatrist indicated that the Veteran was incapable of living independently, and was currently living with her mother and sister. The psychiatrist based this opinion on the symptomatology resulting from the Veteran's service-connected depressive disorder and bilateral knee and leg disabilities. However, it remains unclear whether the Veteran is in need of regular aid and attendance of another person. As the evidence currently of record, to include the March 2014 medical statement, does not provide enough detail for purposes of determining entitlement to SMC based on the need for regular aid and attendance, the Veteran should be afforded a VA examination to assess whether her service-connected disabilities render her in need of the regular aid and attendance of another person. While on remand, updated treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Ensure that all notification and development action required is fully complied with and satisfied with respect to the issue of entitlement to a TDIU rating pursuant to 38 C.F.R. § 4.16. 2. Contact the Veteran, and, with her assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. After completing the development in Step 2, schedule the Veteran for a VA examination to determine the nature and severity of her service-connected stress fractures of the knees and lower legs. The claims file, including a copy of this remand, must be made available for the examiner to review. All relevant tests and studies should be undertaken. The examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of her service-connected stress fractures of the knees and lower legs. The examination report should specifically state the degree of disability present in the Veteran's knees and lower legs. Any neurological abnormalities resulting from this disability should be discussed. The clinician should also discuss how the Veteran's disability impacts her daily activities of living and employment. Range of motion studies should be noted in the examination report. The examiner should also fully describe any weakened movement, excess fatigability, and incoordination present, and further describe any objective evidence of pain caused by this disability. To the extent possible, any determinations concerning pain, weakness, fatigability and flare-ups should be portrayed in terms of the degree of additional loss of range of motion. To the extent possible, the examiner should attempt to differentiate between knee and lower leg symptoms/disabilities which are directly related to the injury in service and/or the service-connected stress fractures of the knees and lower legs, and any identified knee and lower leg symptoms/disabilities which either are not related to the service-connected stress fractures of the knees and lower legs, and/or did not subsequently develop due to the service-connected disability. The examiner should indicate both the Veteran's subjective symptoms and the objective symptoms noted during the examination. A rationale should accompany any opinion provided. 4. After completing the development in Step 2, schedule the Veteran for a VA aid and attendance examination. The claims file, including a copy of this remand, must be made available for the examiner to review. All relevant tests and studies should be undertaken. The examiner should provide an evaluation as to the extent to which the Veteran's service-connected disabilities impact her capability for self-care in her home. The examiner's assessment must include, but not be limited to, evaluation of such conditions as: the Veteran's ability or inability to dress or undress herself or to keep herself ordinarily clean and presentable; the Veteran's ability or inability to feed herself; the Veteran's ability or inability to attend to the wants of nature; any need of adjustment of any special prosthetic or orthopedic appliance; and any incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from hazards or dangers incident to her daily environment. The examiner is advised that the Veteran is competent to report her symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning her need for aid and attendance. If the examiner rejects the Veteran's reports regarding symptoms, the examiner must provide a reason for doing so. The examiner must provide reasons for any opinion given. 5. Conduct any other appropriate development deemed necessary. Thereafter, readjudicate the claims, to include entitlement to TDIU and entitlement to SMC based on the need for regular aid and attendance, considering all evidence of record. If any benefit sought remains denied, the Veteran and her representative must be provided a supplemental statement of the case. An appropriate period of time must be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) These claims 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). ______________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs