Citation Nr: 1624262 Decision Date: 06/16/16 Archive Date: 06/29/16 DOCKET NO. 08-06 558A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 30 percent for dysthymic disorder. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). 3. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1964 to July 1965 with additional service in the Georgia Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2006 (TDIU) and February 2009 (dysthymic disorder) rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Additionally, in a September 2013 rating decision, the Agency of Original Jurisdiction (AOJ) denied entitlement to service connection for obstructive sleep apnea. The Veteran subsequently filed a notice of disagreement. However, a statement of the case as to this claim has not yet been issued and, as such, this claim is addressed in the remand portion below. See Manlincon v. West, 12 Vet. App. 238 (1999). The Board remanded the issues of entitlement to an increased rating for dysthymic disorder and entitlement to a TDIU in March 2012 and August 2013. As will be discussed herein, the Board finds that the AOJ has substantially complied with the remand orders with regard to the dysthymic disorder claim and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board observes that, in the August 2013 remand, it was noted that the Veteran raised the issue of whether new and material had been received to reopen a claim of service connection for hypertension in April 2013 and such claim had not been adjudicated by the AOJ. As the outcome of the hypertension claim could impact the Veteran's TDIU claim, the AOJ was directed to adjudicate the former claim. Subsequently, the AOJ included the issue of whether new and material evidence had been received in order to reopen a claim of entitlement to service connection for hypertension in the November 2013 supplemental statement of the case. However, the Board finds that, as there has not been an initial adjudication of the matter, followed by a notice of disagreement, a statement of the case, and a substantive appeal, the issue is not properly before the Board. See 38 C.F.R. §§ 20.200, 20.201, 20.302; Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Consequently, such matter is referred to the AOJ for proper adjudication in the first instance. As noted in the prior remands, in his March 2008 and October 2010 substantive appeals, the Veteran requested a hearing before a Veterans Law Judge. Subsequently, in December 2011 he withdrew his hearing request. 38 C F R § 20.704(e) (2015). The Board notes that, while a paper file exists and has been reviewed regarding the Veteran's Vocational Rehabilitation benefits, the majority of this appeal has been viewed and processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. A review of the record reveals that additional documents were added to the claims file after the issuance of the November 2013 supplemental statement of the case. However, with the exception of a March 2016 Informal Hearing Presentation (IHP) submitted by the Veteran's representative, the documents are irrelevant to the issue on appeal. Therefore, there is no prejudice to the Veteran in the Board proceeding with a decision at this time. Finally, as the Board noted in the 2012 and 2013 remands, the Veteran has repeatedly written the phrase "clear and unmistakable error" or "CUE" in the numerous pleadings he has submitted throughout the course of the appeal. Specifically, the Veteran has alleged "CUE" in notice letters, in VA examinations, in GAF scores, and possibly in decisions rendered by the AOJ. The Veteran is advised that CUE is a very specific and rare kind of error and may only be raised in regards to final adverse RO or Board decisions. Link v. West, 12 Vet. App. 39, 45 (1998); Best v. Brown, 10 Vet. App. 322, 325 (1997). It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Moreover, there are also specific requirements for making allegations of CUE that are set forth under 38 C.F.R. § 20.1404(b). Amongst other things, the motion must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the previous decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, nonspecific allegations of error, are insufficient to satisfy the requirement of the previous sentence. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart. Id. Thus, while the Board finds that there is not a pending claim of CUE before the Board, the Veteran is advised that should he wish to file a claim for CUE in the future, he should visit the guidance above prior to filing a claim with the RO. The issues of entitlement to service connection for sleep apnea and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT For the entire appeal period, the Veteran's dysthymic disorder has been manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, without more severe manifestations that more nearly approximate occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for dysthymic disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.130, Diagnostic Code 9433 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process Considerations 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) (2015). 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. With respect to the increased rating claim for dysthymic disorder, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. Sept. 4, 2009). 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. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an August 2008 letter, sent prior to the initial unfavorable decision issued in February 2009, advised the Veteran of the evidence and information necessary to substantiate his increased rating claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, this letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA treatment records, private treatment records, Social Security Administration (SSA) Records, and Vocational Rehabilitation 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 afforded VA examinations for his dysthymic disorder in September 2008, April 2012, and October 2013. While the Veteran has made vague arguments regarding the adequacy of his examinations, the Board finds that such VA examinations are adequate to decide the issue as they are predicated on a review of the record, which includes the Veteran's statements; a review of his medical records; and psychiatric examination. In this regard, the Board notes that the VA examiners offered opinions as to the severity of the Veteran's dysthymic disorder and based their conclusions on a review of the record, to include interviews with the Veteran and a full examination. Moreover, the opinions offered clear conclusions with supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board further notes that neither the Veteran nor his representative have alleged that his dysthymic disorder has worsened in severity since the last VA examination. Rather, they argue that the evidence reveals that the Veteran's psychiatric disability is more severe than the currently assigned rating for the duration of the appeal period. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). Therefore, the Board finds that the examinations of record are adequate to adjudicate the Veteran's claim for an increased rating and no further examination is necessary. Moreover, based on the foregoing, the Board determines that the AOJ has substantially complied with the March 2012 and August 2013 remand directives as applicable to the claim decided herein by obtaining the Veteran's Vocational Rehabilitation records, requesting that the Veteran identify any outstanding treatment records, obtaining VA treatment records, obtaining VA examinations in April 2012 and October 2013, and, as such, that no further action is necessary in this regard. See D'Aries, supra. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. 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. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, 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 Veteran's favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. The Veteran's service-connected dysthymic disorder is evaluated as 30 percent disabling under the criteria of Diagnostic Code 9433. See 38 C.F.R. § 4.130. Dysthymic disorder is evaluated under VA's General Rating Formula for Mental Disorders. Under the formula, a 10 percent rating is warranted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9433. A 30 percent rating is warranted when there is 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). Id. A 50 percent rating is warranted when there is 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 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 warranted where there is 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; 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. Id. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002). On the other hand, if the evidence shows that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The United States Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Ultimately in Mauerhan, the Court upheld the Board's decision noting that the Board had considered all of the Veteran's psychiatric symptoms, whether listed in the rating criteria or not, and had assigned a rating based on the level of occupational and social impairment. Mauerhan, supra at 444. In Vasquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Court also held that a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. The Court further held that, in assessing whether a particular disability rating is warranted requires a two-part analysis, including (1) an initial assessment of the symptoms displayed by the Veteran and, if they are of the kind enumerated in the regulation and (2) an assessment of whether those symptoms result in the occupational and social impairment contemplated by that particular rating. Id. at 118. Indeed, considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an 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. The Board notes that the newer American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5) has now been officially released, and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. As the Veteran's increased rating claim was originally certified to the Board in December 2010, such amended criteria do not apply to this claim and the Board will still consider any GAF scores as relevant to this appeal. According to the 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). Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered but is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126, VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995). A GAF score of 41 to 50 is defined as denoting 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 score of 51 to 60 indicates moderate symptoms, or moderate difficulty in social, occupational, or school functioning. A GAF score of 61 to 70 reflects some 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, and with some meaningful interpersonal relationships. The appeal period before the Board begins on August 11, 2008, the date VA received the Veteran's claim for an increased rating, plus the one-year look-back period. Gatson v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The pertinent evidence of record consists of VA examinations conducted in September 2008, April 2012, and October 2013, VA treatment records, VA Vocational Rehabilitation records, and lay statements from the Veteran. After review of the evidence of record, the Board finds that a higher evaluation for dysthymic disorder is not warranted. During the period on appeal, the medical evidence of record reflects that the Veteran's dysthymic disorder was manifested by symptoms that included depression, anxiety, sleep impairment, marginal concentration impairment, sadness, mood swings, agitation, and frustration with (at worst) subdued affect and a depressed mood. On examination, VA clinicians and examiners consistently noted that the Veteran was well groomed, cooperative, made appropriate eye contact, had normal speech and thought processes, and was fully oriented. The Veteran denied suicidal and homicidal ideation and there was no evidence of delusions or hallucinations. GAF scores ranged from 60-75. A September 2008 examiner found that the Veteran's symptoms were relatively mild and stable, and assigned a GAF score of 75. At that time, the Veteran reported stress related to caring for his wife and his non-service-connected back disability. Otherwise, he reported that his psychological treatment seemed to be working and he denied panic attacks and suicidal ideation. Regarding his employment history, the Veteran reported that he retired from law enforcement after serving in that capacity for over 25 years. On examination, the examiner noted that the Veteran was appropriately attired with a good mood and appropriate affect. His speech was spontaneous, attention and judgment were intact, and his thought process and content were unremarkable. There was no evidence of ritualistic behavior, delusions, hallucinations, inappropriate behavior, panic attacks, homicidal or suicidal thoughts. His impulse control was good and he was able to maintain minimum personal hygiene. The Veteran did have sleep impairment in that he reported that he gets about four hours of "hard" sleep a night. His remote, recent, and immediate memory were normal. It was observed that the Veteran retired in 1996 due to his eligibility based on age or duration of work. Notably, the examiner found that the Veteran's condition was stable on mediations and symptoms were relatively mild. In regard to the rating criteria, the examiner found that such symptomatology did not even meet the 10 percent rating criteria of signs and symptoms that were transient or mild and decreased work efficiency and ability to perform occupational tasks during periods of significant stress. Rather, it was only noted that the Veteran's mental disorder symptoms were controlled by continuous medication. Pursuant to the March 2012 remand, the Veteran was afforded another VA examination in April 2012. The 2012 examiner found the Veteran's symptoms were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, and assigned a GAF score of 60. At the time of that examination, the Veteran had been married to his wife for 43 years and again noted that he retired from law enforcement. Regarding his symptoms, the Veteran reported feeling depressed, having difficulty sleeping, and concern regarding his general state of physical health. Upon examination, the Veteran was noted to have the following symptoms: depressed mood, anxiety, chronic sleep impairment, impairment of short- and long-term memory, and flat affect. No other symptoms were reported. Despite the fact that the 2012 examiner initially noted that the Veteran's psychiatric symptoms only occasionally interfered with work and that he had stable symptomatology, it was subsequently opined that it was at least as likely as not that the Veteran's psychiatric symptoms limited his ability to work. Specifically, the examiner noted that the Veteran's depressed mood, sadness, sleep impairment, low energy and self-esteem rendered him unlikely to be able to secure or follow substantially gainful employment. Notably, a January 2013 deferred rating decision drafted by a Decision Review Officer of the RO indicates that the 2012 examiner was not able to review the Veteran's Vocational Rehabilitation folder since the RO did not receive the folder until July 2012. Accordingly, in February 2013 the RO obtained an addendum opinion that specifically addressed the impact of the Veteran's psychiatric symptoms on his ability to work. The February 2013 examiner reviewed the 2012 examination report, the Veteran's mental health treatment records, and the Veteran's Vocational Rehabilitation folder. Ultimately, the examiner indicated that the Veteran had numerous factors that prevented him from maintaining employment, but indicated that his dysthymic disorder alone did not render him unemployable. In support of the opinion, the examiner referenced the Veteran's relatively high GAF score and his VA treatment records documenting the Veteran's reports of "feeling pretty well overall." The examiner also noted that while a Vocational Rehabilitation counselor had found the Veteran unable to return to gainful employment, that determination was not based solely upon the Veteran's service-connected dysthymic disorder. Thus, the February 2013 examiner found that while the Veteran had medical problems and family circumstances that impacted his ability and willingness to work, he was not unemployable due solely to his service-connected dysthymic disorder. Thereafter, pursuant to the August 2013 Board remand and a request made in a May 2013 IHP submitted by the Veteran's representative, another VA examination was provided in October 2013. Like the 2012 examiner's initial finding, the October 2013 examiner also found that the Veteran's symptoms were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, and assigned a GAF score of 60. Regarding his social relationships, the Veteran reported that he was in his 44th year of marriage that was characterized as having highs and lows; that he had one step-child with whom he had little contact; and that he had numerous siblings, one of whom he spoke to daily. Notably, the Veteran reported that, while he had retired from law enforcement in 1996, he would work again if the "right opportunity" presented itself. The Veteran reported that he had not received psychiatric care or medication recently due to staffing issues at VA and that he had noted some increase in his symptoms. He further reported that he kept busy most days by taking care of his wife, driving (which he described as therapeutic), performing volunteer work and participating in civic meetings, and assisting his disabled neighbor. Upon examination, it was noted that the Veteran's symptoms included depressed mood, anxiety, chronic sleep impairment, and circumstantial, circumlocutory or stereotyped speech. No other symptoms were reported. The examiner specifically noted the April 2012 examiner's opinion regarding the impact of the Veteran's psychiatric disability on his ability to work. However, the 2013 examiner noted the Veteran's reports of willingness to work and his report of recently taking a physical ability test for some type of law enforcement position. Ultimately, the examiner opined that the Veteran's anxiety was his most severe psychiatric symptom and that he could work in a low-stress job that required limited attention. The examiner further indicated that the Veteran's symptoms would improve when he resumed psychiatric care. After considering the Veteran's lay contentions and the medical evidence of record, the Board finds that during the entire period on appeal the Veteran's dysthymic disorder most closely approximates the currently assigned 30 percent rating. In that regard, the Veteran did not demonstrate the symptoms associated with higher ratings during the time period, nor did he demonstrate other symptoms of similar severity, frequency, and duration. With regard to his social functioning, the Veteran has maintained a 40-plus year marriage and noted socializing with siblings, neighbors, and volunteering in his community. Moreover, while he reported being unemployed, the evidence of record has consistently demonstrated that the Veteran retired due to age or eligibility from a 25-plus year career in law enforcement, that his non-service-connected physical disabilities have rendered him unemployable and eligible for Vocational Rehabilitation through VA and disability benefits through SSA, and that he would be willing to work if the right opportunity presented itself. Furthermore, the symptoms the Veteran described to the VA examiners, including depressed mood, anxiety, chronic sleep impairment, impairment of short- and long-term memory, flat affect, and circumstantial, circumlocutory or stereotyped speech, and their resulting impact on his social and occupational functioning are contemplated by the currently assigned 30 percent rating. In this regard, while impairment of short- and long-term memory and circumstantial, circumlocutory or stereotyped speech are symptoms indicative of a 50 percent rating, the Board finds that the severity, frequency, and duration of such symptoms do not result in occupational and social impairment with reduced reliability and productivity. Rather, as determined by the VA examiners, such symptomatology results in no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Additionally, although the 2012 examiner did find that the Veteran's dysthymic disorder prevented him from maintaining substantially gainful employment, this statement was inconsistent with the report provided by the 2012 examiner and the 2012 examiner did not have the benefit of reviewing the entire record. Contrarily, the February and August 2013 examiners both reviewed the entire record and found that the Veteran's dysthymic disorder did not prevent him from working. While some of the Veteran's symptoms during the appeal are not specifically enumerated in those criteria, the Board finds that based on the Veteran's overall mental health picture as evidence during the VA examinations and during VA mental health treatment and as documented in relatively high GAF scores, they were in keeping with a 30 percent rating. Notably, the 2008 examiner found that the Veteran's symptoms were in keeping with a 10 percent rating based solely on the fact that such were controlled by continuous medication. The Board has considered the Veteran's assertions as to his symptomatology and the severity of his condition, but, to the extent he believes he is entitled to a higher rating, concludes that the findings during medical evaluation are more probative than the Veteran's lay assertions to that effect. Specifically, the Veteran has argued that he deserves an increased rating for his service-connected dysthymic disorder because he has received Vocational Rehabilitation through VA, has been afforded disability benefits from the SSA, has at least requested a handicap parking pass, has received medication that has fluctuated in dosage for his dysthymic disorder, and has received letters from VA noting that he is disabled. Regarding the Veteran's contention that his use of medication should result in a higher rating, the Board notes that the rating criteria for dysthymic disorders specifically contemplates the use of medication to ameliorate symptoms and that a higher rating may not be assigned based solely on the fact that the Veteran uses medication to treat his symptoms. Cf. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), ("[a]bsent a clear statement [in the diagnostic code] setting out whether or how the Board should address the effects of medication...the Board may not deny entitlement to a higher disability rating on the basis of relief provided by medication.") Turning to the Veteran's assertions that he should receive an increased rating because he has received Vocational Rehabilitation services, SSA benefits, and has applied for a handicap parking pass, the Board advises the Veteran that the criteria for establishing eligibility for these separate and distinct compensation sources is different from that for establishing a higher rating for dysthymic disorder. Moreover, the evidence of record indicates that the Veteran has received these benefits in large part due to his non-service connected health issues. Furthermore, the fact that the Veteran receives disability compensation from sources other than VA or from different branches of VA does not establish that his psychological symptoms result in a greater level of impairment than is contemplated by the currently assigned 30 percent rating. The Board notes that in addition to his contentions regarding his entitlement to a higher rating, the Veteran has also made non-specific challenges to the quality of his VA examinations. In this regard, a VA examiner is presumed to have properly discharged her duties as a health professional (presumption of regularity) in a review of the record, in interviewing the Veteran, and supporting her opinion with medical analysis applied to the significant facts of the case. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed Cir. 2009) (applying the presumption of regularity to VA medical examiners in the discharge of their regular duties). The presumption of regularity is only rebuttable by clear evidence to the contrary. Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). Essentially, the Veteran apparently disagrees with the quality of every VA examination in general. However, as the Veteran has not demonstrated that the VA examiners were unaware of any significant fact in this case or introduced any evidence that shows a lack of impartiality of the VA examiners, the Veteran has not met his burden to show that the VA examinations were inadequate. While the Board has included detailed descriptions of the findings noted at his VA examinations, the Board acknowledges that the Veteran has received VA treatment during the appeal period. However, the findings and symptoms included in such treatment records are consistent with the findings noted by the VA examiners, and do not show a greater level of social and occupational impairment. The Board acknowledges that the Veteran, in advancing this appeal, believes that his dysthymic disorder is more severe than the assigned disability rating reflects. In this regard, he is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay evidence has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board has considered whether additional staged ratings under Hart, supra, as appropriate for the Veteran's dysthymic disorder; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning any staged rating for this disability is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. 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. Under the approach prescribed by VA, 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 Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's dysthymic disorder with the established criteria found in the rating schedule. The Board finds that the Veteran's psychiatric symptomatology is fully addressed by the rating criteria under which it is currently evaluated. In this regard, the Board notes that 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 dysthymic disorder that are not contemplated in the nonexhaustive list of symptoms found in the schedular criteria. The Board is cognizant of the Court's decision of Johnson v. McDonald, in which the Federal Circuit held that 38 C.F.R. § 3.321(b)(1) "entitles a Veteran to consideration for referral for extra-scheduler evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by scheduler evaluations." Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In this case, the Veteran's sole service-connected condition is the dysthymic disorder that is addressed above. Accordingly, no further action pursuant to Johnson v. McDonald is necessary. The Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected dysthymic disorder. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture and, 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. Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In adjudicating the Veteran's claim herein, the Board has also considered the applicability of the benefit of the doubt doctrine. However, in denying a rating in excess of 30 percent for dysthymic disorder, the preponderance of the evidence was against the award of a higher rating. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER A rating in excess of 30 percent for dysthymic disorder is denied. REMAND With respect to the Veteran's claim for service connection for obstructive sleep apnea, the Board notes that a rating decision issued in September 2013 denied such benefit. Thereafter, in the same month, the Veteran entered a notice of disagreement as to the denial of such issue. When there has been an initial RO adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case. See 38 C.F.R. § 19.26. Thus, remand for issuance of a statement of the case on this issue is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). However, this issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Finally, the Board finds that the claim for entitlement to a TDIU is inextricably intertwined with the remanded claim for service connection for obstructive sleep apnea, the outcome of which could possibly have bearing on whether the Veteran meets the schedular criteria for TDIU benefits. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with a statement of the case regarding the issue of entitlement to service connection for obstructive sleep apnea. Advise the Veteran of the time period in which to perfect his appeal. If the Veteran perfects his appeal of this issue in a timely fashion, then return the case to the Board for its review, as appropriate. 2. After completing the requested actions and any additional action deemed warranted, the AOJ should readjudicate the claim for a TDIU. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given the opportunity to respond thereto. 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). 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