Citation Nr: 1637455 Decision Date: 09/23/16 Archive Date: 09/30/16 DOCKET NO. 11-22 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial compensable rating for fibromyalgia prior to February 8, 2012. 2. Entitlement to an increased evaluation for fibromyalgia evaluated as 30 percent disabling from February 8, 2012 to January 10, 2014. 3. Entitlement to rating in excess of 30 percent for depression. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Ivey-Crickenberger, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1971 to June 1975. He died in January 2014; his surviving spouse has been properly substituted as the appellant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated May 2011 and March 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. FINDINGS OF FACT 1. Fibromyalgia required continuous medication for control prior to being aggravated by service connected disorders. 2. The Veteran's fibromyalgia was manifested by nearly constant widespread musculoskeletal pain and tender points which was refractory to therapy during the entire appeal period. 3. The Veteran's depression was manifested by not more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks during the entire appeal period. CONCLUSION OF LAW 1. After deducting for a preexisting level of disability, the criteria for a 30 percent rating for fibromyalgia were met for the entire appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5025 (2015). 2. The criteria for a rating in excess of 30 percent for depression were not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA's duty to notify was satisfied by letters dated October 2006, December 2007, and July 2011. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board also finds that there was compliance with VA's duty to assist. The record in this case includes service treatment records, VA treatment records, and several VA examination reports. The Board finds that the record as it stands includes adequate competent evidence to allow it to adjudicate the appeal, and no further action is necessary. See generally 38 C.F.R. § 3.159(c) (2015). The RO requested an expert medical opinion regarding the etiology of the Veteran's fibromyalgia in March 2011, as well as an addendum opinion in May 2011. The Veteran's former attorney asserted that these examinations were not adequate for the RO to rate the Veteran's disability as they primarily concerned service connection. He was afforded full VA fibromyalgia examination to evaluate the severity of his condition in February 2012. This Veteran's former attorney asserted that this examination was also inadequate because it did not discuss DeLuca factors. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes that the Veteran's service-connected orthopedic disabilities, which aggravated his fibromyalgia, contemplated the DeLuca factors; as such, the examiner's omission of these factors did not render the examination inadequate. Rating the same manifestations of a disability under a different diagnosis or separation evaluation is to be avoided. 38 C.F.R. § 4.14. To do so is to "pyramid" the ratings, which is prohibited in accordance with the Rating Schedule. The Board finds that the February 2012 fibromyalgia examination was adequate, as it reflected that the examiner performed an examination of the Veteran, and the medical opinion was based upon review of the Veteran's claims file and is supported by a sufficient rationale. The Veteran was afforded a pertinent VA psychiatric examination in August 2007. The examination report reflects that the examiner performed an examination of the Veteran, and the medical opinion is based upon review of the claims file and is supported by a sufficient rationale. While the Veteran's former attorney asserted that the August 2007 examination was not adequate because the examiner allegedly did not record some of the Veteran's symptoms, the attorney did not indicate what symptoms were omitted. See, e.g., June 2011 Notice of Disagreement. The Veteran was afforded another VA psychiatric examination in April 2012. This examination report is adequate, and the findings were supported by an adequate rationale despite argument to the contrary. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. As VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating the appeal. Principles for Rating Disabilities Disability ratings are determined by applying a schedule of ratings (Rating Schedule) that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of a veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the disorder. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). With an initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Mitchell. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Fibromyalgia - Rating Criteria The Veteran sought entitlement to a higher initial rating for fibromyalgia. The appeal period now before the Board begins September 2006, which is when service connection was granted for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability has been assigned staged disability ratings throughout the appeal period. Fibromyalgia is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5025. Under that Diagnostic Code a 40 percent rating is assigned when there is widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms that are constant, or nearly so, and refractory to therapy. Symptoms that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but are present more than one-third of the time are assigned a 20 percent rating. Symptoms which require continuous medication for control warrant a 10 percent rating. NOTE: Widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities. "Refractory" means resistant to treatment or cure; unresponsive to stimulus; or not responding to an infectious agent. Merriam-Webster Medical Dictionary available at http://c.merriam-webster.com/medlineplus/refractory (2016). Fibromyalgia - Facts & Analysis The Veteran was granted entitlement to service connection for fibromyalgia on the basis that the disorder was aggravated by his service connected disorders. That is, VA determined that his service-connected orthopedic disabilities made the Veteran's fibromyalgia worse. See March 2011 and May 2011 VA fibromyalgia examination reports. When a non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). VA is required to compensate the degree to which a nonservice-connected disorder is permanently aggravated by a service-connected disability. Any increase attributable to other causes is beyond the scope of Allen and may not be compensated unless specifically authorized by statute. See Claims Based on Aggravation of a Nonservice-Connected Disability, 71 Fed.Reg. 52744-01 (Sep. 7, 2006). Here it was determined that the degree of disability existing prior to the aggravation by fibromyalgia was 10 percent. On this basis, the RO assigned a noncompensable (zero percent) disability rating during the initial staged rating period from September 20, 2006, until February 7, 2012. This percentage was derived from a determination that the disability level during that initial rating period was 10 percent; the pre-aggravation baseline of 10 percent was then deducted. The second staged rating is 30 percent beginning February 8, 2012. This percentage was derived by a determination that the disability level beginning from that date was 40 percent minus the 10 percent for pre-aggravation symptoms. The finding that fibromyalgia was 10 percent disabling prior to being aggravated by service connected disorders was based on an April 2011 VA examiner's opinion indicating that the Veteran's fibromyalgia symptoms would be similar to, but less severe than his then-current reported pain levels, absent the service-connected orthopedic conditions. The RO utilized this medical opinion in determining the Veteran's fibromyalgia baseline was a 10 percent disability. The Board finds no reason to disturb the RO's determination regarding the Veteran's baseline disability. That said, the Board finds that the RO's "current" evaluation of the Veteran's fibromyalgia prior to February 2012 less supportable. The Veteran filed the underlying claim for service connection for fibromyalgia in September 2006. A December 2005 VA rheumatology clinic note reflects the Veteran complained of significant shin pain bilaterally primarily with activities and sometimes with rest. He also complained of diffuse musculoskeletal pain everywhere. The pain was not associated with weakness, numbness, or bowel and bladder abnormalities. The Veteran reported trouble sleeping. On examination, there was no tenderness to palpation of the calves, no erythema or swelling. An August 2006 VA rheumatology clinic note reflects the Veteran reported pain from the calves and back radiating to the whole body; there was no origin source or precipitating factor, it hurt all day. The Veteran expressed significant frustration with his pain but he would not take the recommended prescriptions. On examination there was no joint swelling or erythema; there was mild decrease in range of motion of undetermined etiology secondary to pain at arm and infra-scapula area. There was no tenderness to palpation at joints of hands, wrists, forearms, shoulders, right foot, knees, or hips. There was a full range of motion in these joints. There was mild tenderness to palpation on the left foot and significant tenderness to palpation on the left arm and forearm. In a September 2006 VA rheumatology clinic note the Veteran reported the pain worse in the lower legs, radiating upward through his body. He asserted no muscle areas were spared although the hands were the least affected. He denied joint inflammation. He continued to refuse certain medications. The assessment was chronic musculoskeletal pain with no evidence of inflammatory process. In a September 2006 correspondence, the Veteran asserted, "I presently have pain throughout my entire body. I have pain in my shins, right shoulder, my chest... excruciating pain in my presently service-connected lumbar spine, cervical spine, thoracic spine, right hip, left hip, left shoulder, left knee, right knee...". A November 2006 VA rheumatology clinic note reflects the Veteran was complaining of fatigue, inability to stay asleep longer than two-to-three hours, and lower leg pain. On examination, he was tender to palpation in 16 of 18 trigger spots. There was no swelling, no erythema, no effusions noted. There was full range of motion in all joints. The assessment was moderate-to-severe fibromyalgia, poorly controlled. February 2007 VA treatment notes from primary care and pain clinics reflect the Veteran complained of significant muscular pain in his calves and groin. He reported whole body pain, low mood, and significant problems with insomnia. A June 2007 VA rheumatology clinic note reflects the Veteran complained of "out of control" pain in the lower legs, thighs, and buttocks over the prior two weeks. He denied paresthesia and focal weakness. Examination revealed normal joints. The Veteran again went to the VA rheumatology clinic in August 2007; he complained of pain everywhere which was helped by nothing. He requested new medication that would "knock him out" and he expressed frustration with lack of improvement. He reported walking 10 to 60 minutes several times per week, which was limited only by calf pain. On examination, there was no joint swelling or tenderness, including no trigger point tenderness. The assessment was poorly controlled fibromyalgia, diabetic peripheral neuropathy, and symptoms of claudication (which was later confirmed). The Veteran was scheduled for a VA fibromyalgia examination in January 2008; however he was judged to be hostile and inappropriate. The examination was therefore terminated. In this regard, a Veteran is required to cooperate during VA examinations. Wood v. Derwinski, 1 Vet. App. 190 (1991). A February 2008 VA rheumatology clinic note reflects the Veteran complained of significant leg pain, partially due to nonservice connected diabetic peripheral neuropathy. He also reported pain in his shoulders and left hip, as well as poor sleep. On examination, degenerative changes in the hands were noted and six trigger points were tender to palpation. Several subsequent VA treatment notes thereafter are substantially similar in substance as those discussed above. In February 2011, the Veteran visited the VA emergency department with complaints of worsening pain all over his upper and lower extremities; he requested pain medication but was reluctant to try the medicines recommended. He was tender to palpation all over his extremities. There were no focal deficits, and strength was noted as equal and adequate. In February 2012, the Veteran received a full VA fibromyalgia examination. The findings included widespread musculoskeletal pain, stiffness, and sleep disturbances with tender points in the low cervical region, supraspinal muscle, mid triceps, lateral legs, high buttocks, and paraspinal muscles. Thereafter, the RO granted the Veteran the maximum evaluation available given his 10 percent baseline. The effective date of this evaluation was the date of the examination, i.e., February 8, 2012. The Board finds that the evidence of record dating back to the date of claim reflects the Veteran consistently complained of diffuse whole body pain, with more intense pain in specific areas, which varied. On numerous occasions - and as early as November 2006 - the VA rheumatology clinic documented several points of tenderness and noted that the Veteran's fibromyalgia was moderate to severe in nature and poorly controlled. As a result of the foregoing, the Board finds that the Veteran met the criteria for the maximum schedular rating for fibromyalgia during the entire appeal period. Though the maximum schedular rating is 40 percent, the Veteran's baseline disability of 10 percent must be subtracted. As such, a 30 percent rating for the entire appeal period is warranted. Depression - Rating Criteria Under 38 C.F.R. § 4.130, Diagnostic Code 9434, which pertains to the Veteran's depression, a noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social function or to require continuous medication. A 10 percent rating is assigned when the condition is manifested by 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 when symptoms are controlled by continuous medication. A 30 percent rating is warranted where the disorder is manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routing 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). A 50 percent rating is warranted where the disorder is manifested by 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. 38 C.F.R. § 4.130, Diagnostic Code 9434. Higher ratings are available for more severe manifestations. Ratings of psychiatric disabilities shall be assigned 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. Further, ratings are assigned according to the manifestation of particular symptoms. However, the various symptoms listed after the terms "occupational and social impairment with deficiencies in most areas" and "total occupational and social impairment" in 38 C.F.R. § 4.130 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). The Global Assessment of Functioning score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996). A global assessment of functioning score of 21-30 indicates behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g. sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g. stays in bed all day; no job, home, or friends). American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV). A global assessment of functioning score of 31-40 is defined as exhibiting some impairment in reality testing or communication (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, (a depressed man that avoids friends, neglects family, and is unable to work; a child that frequently beats up younger children, is defiant at home, and is failing at school). Id. A global assessment of functioning score of 41-50 is assigned where there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. A global assessment of functioning score of 51 to 60 is indicative of moderate symptoms (flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (few friends, conflicts with peers or co-workers). Id. A global assessment of functioning score of 61-70 is indicative of 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, has some meaningful interpersonal relationships. Id. Depression - Facts & Analysis The Veteran filed the underlying claim seeking service connection for depression in September 2006. A November 2005 VA primary care note reflects the Veteran reported depression over the recent loss of several pets. In a September 2006 VA rheumatology visit, the Veteran reported a history of depression. In his September 2006 claim, the Veteran asserted that he was very depressed due to the constant and intense pain he experienced. He reported difficulty comping and trouble with anger due to pain. He also reported that prescribed anti-depressant medication was not tolerable. A VA pain clinic note from February 2007 reflects the Veteran had low mood. A VA rheumatology clinic note from June 2007 reflects the Veteran admitted to suffering from depression; the provider noted his affect was normal. In August 2007 the Veteran consulted with the VA mental health group for sleep issues. The appellant reported suffering chronic physical abuse from his father. The provider noted that the Veteran was confrontational many times in the interview. His mood was down, and his affect was restricted. Speech was extremely over-inclusive, with education level appropriate vocabulary and multiple expletives used throughout the interview. Thought appeared goal directed with prolific denials of true "psychiatric symptoms" in the patient's mind, which would include psychosis and suicidal and homicidal ideation. He was otherwise goal-directed. Judgement and insight were fair. Intelligence appeared average. Attitude towards the examiner was slightly inappropriate, as he referred to the provider as "hon" on at least two occasional through the interview. The diagnosis was depressive disorder and rule out cluster B traits. The Veteran was assigned a global assessment of functioning score of 60. A VA psychiatry note from August 2007 reflects the Veteran was guarded and confrontational with fair hygiene. His mood was described as angry, and his affect was restricted. The Veteran's speech was spontaneous with normal tone and appropriate vocabulary. Thought content and behavior were within normal limits with no psychosis noted. The Veteran denied homicidal and suicidal ideation. His judgment and insight were judged to be fair. Psychomotor activity was within normal limits. The diagnosis was depression not otherwise specified, and cluster B traits. A global assessment of functioning score of 60 was assigned. In August 2007 the Veteran received a VA psychiatric examination. As far as medical history, the Veteran reported significant physical abuse by his father. He also reported that his mother got into a terrible motor vehicle accident that was disabling and which had significant emotional impact on the family. He grew up as one of six children. One of his brothers was deceased and he reported no contact with another brother. His relationship with his other siblings was not discussed. His family moved frequently and he dropped out of high school in 11th grade to join the military. As the time of the examination, the Veteran's mother-in-law and mentally disabled brother-in-law were living with him and his wife, whom he had then been married to for 29 years. The Veteran reported regular contact, at least weekly, with his son, his step-daughter, and grandchild. He stated they were a close knit family. He also reported spending time with a friend about once a week. As far as hobbies, the Veteran reported being a stamp collector and walking, which had been curtailed due to his disabilities (primarily diabetic neuropathy). As far as legal history, the Veteran reported that he did not start fights but he would finish them. He also reported a past history of illegal drug use. In the examination, the Veteran reported onset of significant depression after open heart surgery about ten years prior. He also reported a history of depression and sleep problems much of his life. The Veteran stated that he lacked motivation and that his musculoskeletal pain exacerbated his depression. He asserted that his energy was "zapped" and that his sex drive had decreased. He denied suicidal and homicidal ideation as well as symptoms of psychosis. He was unemployed but did not contend that his unemployment was due to a psychiatric disorder. The mental status revealed the Veteran to be of average intelligence, clean, neatly groomed, and casually dressed. There was unremarkable psychomotor activity and speech. His attitude was friendly and attentive, and he showed good insight. The examiner found a bland affect, depressed mood, intact attention and judgment, and the Veteran to be oriented times three. His thought process was rambling, but the content was unremarkable. There was no evidence of delusions or hallucinations, and no inappropriate behavior. He showed good impulse control, although there was a history of occasional episodes of violence. The Veteran was able to maintain minimum personal hygiene, he had no problem with the activities of daily living, and his memory within normal limits. The examiner noted that the Veteran appeared to have issues of interpersonal control that likely stemmed from his childhood abuse. The diagnoses were depression not otherwise specified, and personality disorder not otherwise specified with cluster B traits. The examiner opined that the Veteran's occupational and social impairment would be manifested by occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks During an August 2007 rheumatology appointment the provider noted that the Veteran was agitated and aggressive though he denied symptoms of depression. In January 2008 the Veteran was scheduled for a VA fibromyalgia examination, however, he apparently presented to the appointment as angry, accusatory and repeatedly confrontational. The provider was concerned for her physical safety and terminated the visit; the Veteran initially refused but agreed when the provider got security involved. The examiner noted the Veteran was quite angry upon departure and shouted an epithet as he left. The provider requested to not see the Veteran again. The Veteran was not seen again by VA mental health until May 2011 when he was referred because of needle phobia. He had been largely non-compliant with insulin for his diabetes due to anxiety about the injections. The provider noted the Veteran was oriented and dressed casually but appropriately. He denied suicidal and homicidal ideation; affect was appropriate to the circumstances. The Veteran denied auditory and visual hallucinations; speech was coherent and well-paced. In a May 2011 rating decision, the RO granted entitlement to service connection for depression and assigned a 30 percent rating based on the August 2007 VA examination. A June 2011 notice of disagreement from the Veteran's attorney contended that the 2007 VA psychiatric examination did not document all of the Veteran's symptoms; however the letter did not mention the specific symptoms that were omitted. VA psychology notes from September 2011, November 2011, and February 2012 reflect the Veteran had been more successful in administering his insulin shots. Mental status examinations were within normal limits, speech was coherent, and there was no current suicidal or homicidal ideation. A January 2012 letter from the Veteran's attorney asserted that the 2007 psychiatric examination was "stale" and did not represent his current medical status. A March 2012 VA psychology note reflects the Veteran was discouraged after an unexpected death of a friend earlier in the week. He denied any suicidal or homicidal ideation. His mood was depressed and affect was congruent. Facial expression was sad; the mental status examination was otherwise within normal limits and consistent with the recent past. A global assessment of functioning score of 65 was assigned. Another visit later in March 2012 was similar, although there was some improvement in mood. The Veteran's mood was neutral and his affect was appropriate and variable; his facial expression was normal and responsive. A global assessment of functioning score of 60 was assigned. At an April 2012 VA psychiatric examination the reported family and social history was the same as that reported in the 2007 examination. The Veteran was judged to very verbal and tangential when responding to questions, and was especially animated when discussing the lack of effective pain medication for his orthopedic disabilities. His primary pain complaints were related to his nonservice connected lower leg diabetic neuropathy/claudication. He denied suicidal and homicidal ideation. The provider noted that he was oriented in all spheres, his attention and concentration was intact; insight and judgment were intact; his memory was intact for remote and recent events. He denied any legal problems since the previous psychiatric examination. He also reported that he had been drinking some with a buddy who was going through a divorce but had completely stopped drinking due to his heart condition. Symptoms noted by the examiner included depressed mood and anxiety. The examiner opined that the appellant's occupational and social impairment corresponded with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In November 2012 the Veteran sought treatment for chest pain. He became confrontational when told he needed to be transported to an emergency room. The Veteran removed all medical monitoring equipment, got out of bed and began shouting at the provider's desk. VA police were called to remove the Veteran from the premises. Based on the evidence of record, the Board finds that the Veteran's depression symptoms corresponded with a 30 percent rating for the entire appeal period. During the entire appeal period, the Veteran's depression was manifested by: depressed mood; anxiety; chronic sleep impairment; and occasional volatile mood. These symptoms most closely correspond with a 30 percent disability rating under 38 C.F.R. § 4.130. The Board finds that a higher rating of 50 percent was not warranted. The Veteran's psychiatric disorder was not manifested by such symptoms as a flattened affect, or; circumstantial, circumlocutory, or stereotyped speech. Indeed, examinations revealed unremarkable speech, and while his affect was bland it was not flattened. There were no complaints of panic attacks, and there was no evidence that the Veteran had understanding complex commands. The appellant's memory was never shown to allow only the retention of only highly learned material, and there is no evidence that he was forgetting to complete tasks. While the Veteran was judged to suffer from difficulties with interpersonal control, and anger issues these were found to be associated with a history of nonservice connected childhood abuse. The global assessment of functioning scores were most consistently in the 60 to 65 range which is indicative of no more than a mild to moderate impairment. The record further shows that the Veteran was married to the same woman since approximately 1978. He maintained relationships with his mother-in-law, his brother and daughter -in-law, his son, and his grandchild. He reported that he had a close knit family. In addition, he spent time with a friend on a frequent basis. Although he was occasionally confrontational and inappropriate in the medical setting, he was frequently cooperative and appropriate. In regard to motivation and mood, the Veteran reported a lack of motivation on one occasion. His mood varied throughout the period on appeal along with his circumstances. Still, the evidence preponderates against finding significant disturbances of motivation and mood. Mental status examinations during the entire appeal period generally reflect that the Veteran's mental status was within normal limits. He understood social behavior and situations. In making this determination, the Board is aware that the symptoms listed under the rating criteria are essentially examples of the type and degree of symptoms for that evaluation, and that the Veteran need not demonstrate those exact symptoms to warrant a particular evaluation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In this regard, the Board has also reviewed the evidence to determine his overall level of impairment. Id.; see also Vazquez-Claudio v. Shinseki, 2012-7114 (Fed. Cir. April 8, 2013) (Although the Veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the Veteran's level of impairment). In the process of evaluating a mental disorder, VA is required to consider a number of pertinent factors, such as the frequency, severity, and duration of a Veteran's psychiatric symptoms. Id.; see also 38 C.F.R. § 4.126 (2015). The rating is based, as far as practicable, upon the average impairments of earning capacity, in civil occupations, resulting from the Veteran's service-connected disabilities. Id. As noted, the Veteran's global assessment of functioning scores ranged from 60 (lowest) to 65 (highest) during the appeal period. These scores are consistent with the evidence of record. A global assessment of functioning score of 51 to 60 is indicative of moderate symptoms (flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (few friends, conflicts with peers or co-workers). A global assessment of functioning score of 61-70 is indicative of 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, has some meaningful interpersonal relationships. In sum, the Veteran's depression was manifested by depressed mood; anxiety; chronic sleep impairment; and occasional volatile mood during the entire appeal period. These symptoms correspond with a 30 percent rating. At no point in the appeal period did the Veteran's symptoms more closely approximate the 50 percent rating. As such, the claim for a rating in excess of 30 percent for depression must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to a rating of 30 percent, but no more, for fibromyalgia is granted for the entire appeal period subject to the laws and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 30 percent for depression is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs