Citation Nr: 18145290 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 11-11 574 DATE: October 26, 2018 ORDER Entitlement to a disability rating in excess of 30 percent for a right elbow flexion contracture is denied. Entitlement to a separate disability rating of 10 percent prior to October 10, 2017, and 30 percent thereafter, for limitation of pronation and supination for right elbow flexion contracture, is granted. Entitlement to an initial disability rating of 70 percent, but no higher, for major depressive disorder (MDD) prior to January 25, 2018, is granted. Entitlement to a disability rating in excess of 70 percent for MDD from January 25, 2018, is denied. FINDINGS OF FACT 1. For the period on appeal, the Veteran’s right elbow flexion contracture was manifested by flexion limited to 70 degrees and extension limited to 5 degrees. 2. Prior to October 10, 2017, the Veteran’s right elbow flexion contracture was manifested by pronation limited to 90 degrees and supination to 50 degrees and painful motion. 3. From October 10, 2017, the Veteran’s right elbow flexion contracture was manifested by pronation limited to 15 degrees and supination limited to 40 degrees, with painful motion. 4. Throughout the duration of the appeal, the probative evidence of record indicates the Veteran’s MDD was productive of occupational and social impairment with deficiencies in most area s, including work, family relations, judgment, thinking and mood. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.59, 4.71a, Diagnostic Code 5206 (2017). 2. The criteria for a compensable rating prior to January 15, 2018, and in excess of 40 percent thereafter, for limitation of extension of the right elbow have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.59, 4.71a, Diagnostic Code 5207 (2017). 3. The criteria for a separate 10 percent rating prior to October 10, 2017, and a 30 percent rating thereafter, for limitation of pronation and supination have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.59, 4.71a, Diagnostic Code 5213 (2017). 4. The criteria for entitlement to an initial disability rating of 70 percent, but no higher, for MDD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2017).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1957 to November 1958. This matter comes to the Board of Veterans’ Appeals (Board) from a June 2009 rating decision. In June 2009, the Board granted entitlement to service connection for depression. That same month, the RO issued a rating decision effectuating the Board decision, and assigned an initial rating of 30 percent, effective June 6, 2003. The Veteran perfected an appeal of this decision, seeking a higher rating. This matter also comes to the Board from a December 2010 rating decision, which reduced the rating for the Veteran’s service-connected right elbow flexion contracture disability from 30 percent to 10 percent, effective March 1, 2011. In a December 2015 Board decision, the Board found that the RO had adjudicated the Veteran’s notice of disagreement with the rating reduction as one for an increased rating, resulting in the issue currently before the Board. In November 2010, the Veteran and C.W. testified at a RO hearing which pertained only to the reduction of his disability rating for his right elbow. In May 2014, the Veteran, A.R., and V.S. testified at a Travel Board hearing before the unsigned Veterans Law Judge. A copy of both transcripts is associated with the record. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2017); 38 C.F.R. § 4.1 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application for service connection or one year prior to the increased rating claim and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson v. West, 12 Vet. App 119 (1999). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The standard of proof to be applied in decisions on claims for veteran’s benefits is set forth in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to a disability rating in excess of 30 percent for a right elbow flexion contracture. The Veteran contends that a disability rating in excess of 30 percent is warranted for his service-connected right elbow flexion contracture. The Veteran’s right elbow disability is rated at 30 percent under Diagnostic Code 5206 for limitation of flexion of the forearm. See 38 C.F.R. § 4.71a, Diagnostic Code 5206. Since the Veteran is right-handed, his right elbow flexion contracture is rated as a major side limb injury. The normal ranges of motion of the elbow and forearm are zero to 145 degrees in flexion and extension, zero to 85 degrees supination, and zero to 80 degrees pronation. 38 C.F.R. § 4.71, Plate I. Diagnostic Code 5206 provides compensation for limitation of flexion of the forearm. 38 C.F.R. § 4.71a. Flexion limited to 110 degrees or more warrants a noncompensable rating. Flexion limited to 100 degrees warrants a 10 percent rating. Flexion limited to 90 degrees warrants a 20 percent rating. Flexion limited to 70 degrees warrants a 30 percent rating. Flexion limited to 55 degrees warrants a 40 percent rating. Flexion limited to 45 degrees warrants a 50 percent rating. Diagnostic Code 5207 provides compensation for limitation of extension of the forearm. 38 C.F.R. § 4.71. Extension limited to 45 degrees warrants a 10 percent rating. Extension limited to 60 degrees warrants a 10 percent. Extension limited to 75 degrees warrants a 20 percent rating. Extension limited to 90 degrees warrants a 30 percent rating. Extension limited to 100 degrees warrants a 40 percent rating. Extension limited to 110 degrees warrants a 50 percent rating. Under Diagnostic Code 5208, if the Veteran’s flexion is limited to 100 degrees and extension is limited to 45 degrees, a 20 percent rating is assigned. 38 C.F.R. § 4.71a. Diagnostic Codes 5209 to 5213 provide ratings for impairment of the flail joint, for nonunion of the ulna and radius of the major arm with a flail false joint, and for impairment of the ulna and radius. None of these disorders were indicated in the record. Diagnostic Code 5213 provides compensation for impairment of supination and pronation. 38 C.F.R. § 4.71a. Supination limited to 30 degrees or less is assigned a 10 percent rating. Limitation of pronation with motion lost beyond last quarter of arc and the hand does not approach full pronation is assigned a 20 percent rating. Limitation of pronation of the major arm with most motion lost beyond middle of arc is assigned a 30 percent rating. Loss of supination or pronation due to bone fusion with the hand fixed near the middle of the arc or moderate pronation is assigned a 20 percent rating. Loss of supination or pronation due to bone fusion with the hand fixed in full pronation is assigned a 30 percent rating. Loss of supination or pronation due to bone fusion with the hand fixed in supination or hyperpronation is assigned a 40 percent rating. The Note to the rating criteria for the elbow and forearm provides that in all the forearm and wrist injuries (Diagnostic Codes 5205 to 5213) multiple impaired finger movements due to tendon tie-up, muscle or nerve injury, are to be separately rated and combined not to exceed the rating for loss of use of hand. 38 C.F.R. § 4.71a. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms “flare up,” such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. In this regard, manifestation of pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Turning to the evidence of record, a July 2010 VA examination report reflects the Veteran reported right elbow pain on a daily basis, with flare-ups once a month, and that he had had injections to the right elbow. Upon examination, range of motion was flexion to 125 degrees and extension to zero degrees, with painless range of motion. Pronation was to 90 degrees without pain and supination was limited to 55 degrees, and with very painful range of motion beginning at 50 degrees. Repetition did not increase pain in any plane. There was tenderness to palpation over the medial and lateral epicondyle. Muscle strength testing was normal. The examiner indicated that it was conceivable that there was loss of function, including loss of range of motion, secondary to pain, but that it was difficult to determine the extent of loss with any medical certainty. A September 2010 imaging study revealed a small posterior olecranon tendonous calcification and vascular calcifications, but no joint effusion, fracture, or dislocation was seen. In November 2010, the Veteran testified at a hearing before the RO that his right elbow was painful and that he had to take medicine to sleep at night because of the pain. He reported that he wore a brace and used a heating pad. He reported that he had good days and bad days, but that his right elbow was not improving. February 2011 VA treatment records reflect that the Veteran reported right elbow pain for many years and that it popped with activity. Upon examination, range of motion was from 5 to 140 degrees, with no instability or weakness noted. A March 2012 VA examination report reflects that the Veteran could straighten his arm fairly well, but experienced pain from 160 to 180 degrees extension, and in pronation. In May 2014, the Veteran testified at a Travel Board hearing that he could bend his right elbow to about 90 degrees and straighten it to about 120 degrees, and that pain limited him from further movement. He stated that he was unable to shave himself and that someone else did all his cooking. An October 2017 VA examination report reflects that the Veteran reported radiating elbow pain and that he was unable to fully flex or extend his elbow. Range of motion testing revealed flexion to 70 degrees, extension to 5 degrees, supination to 40 degrees and pronation to 15 degrees. Pain was noted in all planes and found to cause functional loss. The Veteran performed repetitive use testing without additional loss of range of motion. The examiner was unable to say without resorting to speculation whether there was additional loss of range of motion after repetition or during flare-ups, as the examination was not conducted after repeated use or during a flare-up. The examiner found that less movement than normal due to flexion contracture and arthritis contributed to the Veteran’s disability, but muscle strength testing was normal, there was no ankylosis, and the Veteran did not use an assistive device. The examiner opined that the Veteran’s arthritis was unrelated to his flexion contracture. A February 2018 VA examination report reflects that the Veteran reported elbow pain that radiated to his shoulder and resulted in functional loss with writing, decreased grip, lifting, and carrying items. Range of motion testing was flexion to 100 degrees, extension to zero degrees, supination to 45 degrees, and pronation to 40 degrees, with pain in all planes contributing to functional loss. Repetitive use testing did not result in additional loss of range of motion. The examiner noted that pain limited functional ability during a flare-up, but unable to describe loss of functional ability in degrees, as the Veteran reported that loss of range of motion was variable. There was no muscle atrophy, but there was a reduction in muscle strength. The examiner found no ankylosis, flail joint, joint fracture, ununited fracture, malaligned fracture, or impairment of supination or pronation. The examiner noted constant use of a brace. The examiner opined that while the Veteran’s arthritis and flexion contracture were unrelated, there was an overlap of symptoms. In sum, the Veteran’s right elbow flexion contraction was manifested by pain and flexion limited to, at most, 70 degrees for the period on appeal. These symptoms are most nearly approximated by the 30 percent rating currently assigned. A 50 percent rating is not warranted, as there was no objective evidence that the Veteran’s right elbow flexion was more nearly approximated by flexion limited to 55 degrees or more. The Veteran has been awarded a 40 percent evaluation for right elbow limitation of extension, effective January 15, 2018. For the period on appeal, the objective evidence of record reflects that the Veteran’s limitation of extension has been limited by, at most, 5 degrees. Prior to January 15, 2018, a compensable rating based on limitation of extension of the elbow is not warranted. Limitation of extension was limited to, at most, 5 degrees. Thus, a rating under § 4.71(a), DC 5207, prior to January 15, 2018, is not warranted. In order to warrant a compensable rating, extension would need to be limited to at least 45 degrees. It is the intent of the rating schedule to recognize actually painful, unstable or mal-aligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The elbow is considered a major joint. 38 C.F.R. § 4.45(f). A compensable evaluation under Diagnostic Code 5003 and 38 C.F.R. § 4.59 (for painful motion) is in order when no compensable limitation of motion of the affected joint is demonstrated. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also VAOPCGPREC 9- 98 (Aug. 14, 1998). Where a compensable limitation of motion is demonstrated in the joint, the Lichtenfels rule is not applicable. As the Veteran is in receipt of a compensable rating for limitation of motion of flexion, a separate rating for extension under 38 C.F.R. § 4.49 prior to January 15, 2018, is not warranted. From January 15, 2018, the RO has assigned the Veteran a 40 percent rating based on limitation of extension and the Board will not disturb the rating assigned. However, the Board finds that the objective evidence of record does not support a rating in excess of 40 percent, as a 50 percent rating is more closely approximated by limitation of extension to 110 degrees. The Board notes that during his Board hearing, the Veteran testified that he could straighten his arm to about 120 degrees. The normal range of motion is extension to zero degrees and flexion to 145 degrees. Thus, in being able to straighten his arm to 120 degrees, his extension was not limited to 110 degrees. The Board has also considered whether there is any other basis for granting a higher or separate rating for the Veteran’s right elbow flexion contracture other than that discussed above. A higher rating is not warranted under DC 5208, a rating based on limitation of flexion and extension. However, the Board finds that a separate rating is warranted for impairment of supination and pronation. Prior to October 10, 2017, supination was limited to 55 degrees, with pain beginning at 50 degrees. Pronation was noted to cause pain, with normal range of motion. Although this limitation does not meet the criteria for a compensable rating under DC 5213, the painful and limited supination and pronation nevertheless warrant a compensable rating under DC 5213. See 38 C.F.R. § 4.59; see also 38 C.F.R. § 4.71, Plate I; cf. VBA Manual, III.iv.4.A.2.d (advising that limitation of flexion of the elbow to a compensable degree under DC 5206, and full but painful supination would warrant separate ratings, since motion of the forearm is separate and distinct from elbow motion). Separate ratings for both limited supination and pronation are not available. See Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010) (holding that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise); see also 38 C.F.R. § 4.71a, DC 5213. From October 10, 2017, supination and pronation were limited to, at most, 40 degrees and 15 degrees, respectively. The Board finds that limitation of pronation to 15 degrees warrants a 30 percent rating, as motion is lost beyond the middle of the arc. See 38 C.F.R. § 4.71a, DC 5213. In this regard, the Board notes that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed (i.e., the amputation rule). 38 C.F.R. § 4.68 (2017). Diagnostic Codes 5123-5125 provide the ratings for amputation of the forearm, if amputation were elected above the insertion of the pronator teres of the major extremity, the maximum rating would be 80 percent. The Veteran is currently rated at 30 percent from November 25, 1991, for right elbow flexion contracture and at 40 percent from January 15, 2018, for right elbow limitation of extension. With the grant of compensable ratings of 10 percent prior to October 10, 2017, and at 30 percent thereafter, for limitation of pronation/supination, the Veteran’s combined disability rating for his right elbow disability becomes 30 percent prior to January 20, 2011; 40 percent from January 20, 2011, to October 10, 2017; 60 percent from October 10, 2017, to January 25, 2018; and 70 percent from January 25, 2018. Thus, the grant of compensable ratings for right elbow limitation of pronation/supination are allowed under the amputation rule. The Board acknowledges that the July 2010 and March 2012 VA examination reports do not indicate whether testing was done for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and did not address whether the Veteran experienced flare-ups. However, the Board finds that at this time, remanding the claim for retroactive opinions would likely result in speculative opinions; therefore, it would be futile to remand the claim back and such a delay is outweighed by giving the Veteran a timely decision on his claim. The VA examiners addressed the functional impact on the Veteran’s right elbow disability upon ordinary conditions of daily work and life and the Board notes that it has afforded the Veteran every possible benefit of the doubt where applicable. In assessing relevant symptomatology in this matter, the Board has considered the Veteran’s lay statements attesting to pain on motion in his elbow. The Veteran is competent to offer evidence regarding observable symptomatology such as pain and limitation of motion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, on the issue of the degree of the Veteran’s impairment, the medical evidence is more credible and preponderates against the notion that the Veteran experiences limitation of motion that would warrant higher ratings here. For these reasons discussed above, the Board finds that the weight of the evidence is against a rating in excess of 30 percent for right elbow flexion contracture based on limitation of flexion and a compensable rating based on limitation of extension prior to January 25, 2018, and in excess of 40 percent thereafter, and the benefit-of-the-doubt doctrine is not applicable. However, a separate 10 percent rating based on pain and limitation of pronation and supination is warranted prior to October 10, 2017, and at 30 percent thereafter. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. Entitlement to an initial disability rating in excess of 30 percent prior to February 12, 2013 for major depressive disorder, in excess of 50 percent from February 12, 2013, and in excess of 70 percent from January 25, 2018. The Veteran contends that higher ratings are warranted for his service-connected major depressive disorder (MDD). 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. 38 C.F.R. § 4.126(a) (2017). When evaluating the level of disability from a mental disorder, VA also will consider the extent of social impairment, but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126(b). The Veteran’s MDD is evaluated under Diagnostic Code (DC) 9411 of the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411 (2017). The Veteran is in receipt of 30 percent rating, effective June 6, 2003; a 50 percent rating, effective February 13, 2012; and a 70 percent rating, effective January 25, 2018. Under the applicable rating criteria, a 30 percent rating 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 de-pressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent disability 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 in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability 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 work-like setting); inability to establish and maintain effective relationships. Id. Finally, a 100 percent disability 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. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term “such as” in the rating criteria 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). Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the DSM-IV and replace them with references to the updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim 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. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The RO certified the Veteran’s appeal to the Board in August 2013; therefore, the claim is governed by DSM-IV. However, the amended regulations made no change to the symptomatology assigned to each of the disability ratings provided for in the General Rating Formula for Mental Disorders. The Board notes that the use of the GAF scale has been abandoned in the DSM 5 because of, among other reasons, “its conceptual lack of clarity” and “questionable psychometrics in routine practice.” See Diagnostic and Statistical Manual for Mental Disorders, Fifth edition, p. 16 (2013). However, this claim is governed by DSM-IV, and it was in use during portions of the appeal period when relevant medical entries of record were made. Therefore, the GAF scores assigned remain relevant for consideration in this appeal. GAF scores ranging between 61 and 70 reflect 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 has some meaningful interpersonal relationships. See Diagnostic and Statistical Manual for Mental Disorders, Fourth edition, p. 46 (1994). Scores ranging from 51 to 60 reflect more 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). Id. at p. 47. Scores ranging from 41 to 50 reflect 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. Scores ranging between 31 and 40 are assigned when there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). Id. When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran’s symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation, but are not meant to be exhaustive. Id. Turning to the evidence of record, May and August 2003 VA treatment records reflect that the Veteran was diagnosed with mood disorder - depression secondary to medical conditions, and prescribed medications. A January 2007 VA examination report reflects that the Veteran reported being diagnosed with depression three to four years prior. He indicated that he had been married twice, his first wife died of cancer and he had been with his second wife since 1986. He reported he had seven children from his first marriage, he visited his mother, spent time with his grandchildren, and spent his leisure time witnessing door-to-door as a Jehovah Witness. He reported feeling that others were after him, that he avoided others, that he was depressed and tired, that he had crying spells three to four times a week, and that he had thoughts of suicide without plan to act. He reported that he had trouble sleeping, felt angry, and was unable to do many things because of his elbow and other physical conditions. Upon examination, the Veteran appeared adequately groomed, with good hygiene. He was cooperative, polite, approachable, and pleasant, but seemed mildly to moderately depressed and somewhat frustrated. He was oriented in all spheres and thought processes were linear and logical. There was no evidence of hallucinations, obsessive or ritualistic behavior, or problems with impulse control. He reported difficulty managing self-care activities and could not do household chores. The examiner diagnosed the Veteran with moderate depression, finding that his elbow disability was partially responsible. The examiner assigned the Veteran a GAF score of 53. VA treatment records reflect that in December 2007 and February 2008, the Veteran reported feeling very depressed over the recent deaths of his sister, a friend, and his daughter and that he had crying spells. The Veteran reported that he enjoyed going out to eat with his wife, regularly attended church, and was looking forward to fishing in the summer. He reported that his medication had helped his sleep disturbances considerably. Upon examination, the Veteran appeared well-developed, dressed casually with good attention to hygiene and grooming, and alert and cooperative. Speech was normal with no psychomotor activity noted. Mood ranged from dysphoric to euthymic and affect congruent, and the physician noted that the Veteran smiled and laughed occasionally. Thought processes were linear and goal-directed. The Veteran denied suicidal and homicidal ideations and hallucinations. Insight and judgment were fair. The physician indicated a diagnosis of dysthymic disorder, assigned a GAF score of 60. In April 2008 and July 2008, the Veteran reported that he felt much improved from his last appointment, but that his sleep was not good. He smiled when he talked of fishing, his wife, and grandchildren. Upon examination, the Veteran appeared well-developed, dressed casually with good attention to hygiene and grooming, and was alert and cooperative. Speech was normal with no psychomotor activity noted. Mood ranged from a little depressed to euthymic and affect congruent. Thought processes were linear and goal-directed. The Veteran denied suicidal and homicidal ideations and hallucinations. Insight and judgment were fair. The clinician assigned a GAF score of 60. October 2008, December, 2008, February 2009, and May 2009 VA psychiatry notes reflects that the Veteran presented with depressed mood, insomnia, low energy and concentration. Upon examination, he appeared casually dressed, cooperative, made good eye contact and was alert and oriented. Thought processes were coherent and goal-directed, speech normal, and mood ranged from dysthymic to euthymic, with appropriate affect. The Veteran denied suicidal and homicidal thoughts, but reported auditory hallucinations, specifically of someone calling his name at times. An August 2009 VA examination report reflects that the Veteran reported visiting family, visiting the zoo with his grandchildren, and going to church, but that he had bad days three to four times a week. He reported that he felt like giving up, but wanted to see his grandchildren grow up. The Veteran reported sleep disturbances and his inability to work and provide money for his family distressed him. The examiner noted that the Veteran reported hearing someone call his name on a daily basis, but that he denied any other auditory misperceptions. The examiner noted that the Veteran was hearing impaired with tinnitus and concluded that the Veteran’s description of hearing voices was unlikely a hallucination. Upon examination, the Veteran appeared neatly groomed and appropriately dressed, with ability to maintain minimal hygiene. Psychomotor activity and speech were unremarkable. The Veteran was cooperative and friendly. Mood was slightly depressed and the examiner noted the Veteran smiled frequently but had an appropriate affect. The Veteran was alert and oriented and thought processes were unremarkable. The Veteran was unable to do serial 7’s or interpret proverbs appropriately. The Veteran denied panic attacks, suicidal or homicidal thoughts, and hallucinations. Impulse control was fair, remote and recent memory were normal, but immediate memory was mildly impaired. The examiner noted the Veteran’s depressive symptoms were exacerbated by psychosocial stressors and pain, low mood, feelings of worthlessness and hopelessness, irritability, and difficulty sleeping. The examiner diagnosed the Veteran with depressive disorder, with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to mental disorder signs and symptoms, but generally functioning satisfactorily. In April 2010, the Veteran reported that he was doing alright, but reported having suicidal ideations the month before. He reported difficulty with insomnia. Upon examination, the Veteran appeared well-developed and casually dressed, with good attention to hygiene and grooming. He was alert, oriented, and cooperative. Speech was normal with no psychomotor abnormalities noted. Mood was euthymic and affect congruent. Thought processes were linear and goal-directed. The Veteran denied suicidal and homicidal ideations and hallucinations. Insight and judgment were fair. The examiner assigned a GAF score of 60 and created a safety plan if the Veteran’s suicidal ideation recurred. November 2010 and October 2011 VA psychiatry notes reflect the Veteran presented with depressed mood, psychomotor agitation, and lack of interest, energy, concentration, and esteem. He denied passive thoughts of death and reported sleeping better, but was worried about getting lost at time. Upon examination, the Veteran appeared casually dressed with good eye contact, and was cooperative, alert, and oriented. Thought processes were coherent and goal-directed, speech was normal, mood was dysphoric and dysthymic. The Veteran denied suicidal and homicidal ideations and hallucinations. The Veteran was diagnosed with with depression - rule out early dementia, and a neuropsychology consult was ordered. A December 2011 neuropsychology consult reflects the Veteran endorsed difficulty with memory and thinking, and that he would forget to take his medications. The Veteran reported that once, he attempted to go downtown, but ended up in another state. The Veteran’s son reported that the Veteran’s cognitive changes began about eight months prior. The Veteran presented with good grooming and hygiene, was alert and oriented except as to the day of the week, speech was fluent, mood mildly depressed and affect congruent. The Veteran reported good appetite and improved sleep. Upon examination, cognitive mental status was grossly within normal limits, but basic language functions, attention and concentration, and memory were impaired. The examiner noted the Veteran had long standing depression, but there was no evidence of pseudodementia or depression during the examination. The examiner diagnosed the Veteran with mild dementia, not otherwise specified. December 2011 and February 2012 VA mental health notes reflect the Veteran reported depressed mood and lack of interest, energy, concentration, sleep, and self-esteem. The Veteran reported passive thoughts of death. The clinician noted diagnoses of depression and dementia. A GAF score of 48 was provided and the Veteran was noted to be senile. In a February 2012 letter, the Veteran’s treating VA mental health physician indicated that he was treating the Veteran for depression and dementia and the Veteran was no longer able to function independently. A March 2012 VA examination report reflects the Veteran’s diagnoses of depression and dementia, but that the symptoms of each could not be differentiated, and further noting that the symptoms of each were inextricably interrelated. The Veteran reported that his depression began during service, but that he got along with people. He reported living with his wife and son, that he attended church regularly, mowed the grass, and enjoyed fishing. The Veteran reported insomnia, low energy and motivation, struggling with depression, chronic pain, and low self-esteem, having crying spells, trouble concentrating, feelings of hopelessness and helplessness, and suicidal thoughts, although he denied current ideation. Upon examination, the Veteran appeared casually dressed, appropriately groomed, and ambulated with the use of a wheelchair. He was pleasant, cooperative, and alert and oriented. He reported being irritable, and his affect during the examination ranged from broad to restricted. The Veteran reported being paranoid during the interview, and that he sometimes heard someone call his name or would see people or shadows when nothing was there. However, the examiner noted the Veteran maintained good eye contact, there was no overt evidence of psychosis, and there was no tangentiality, flight of ideas, or loosening of associations, and the Veteran’s thought processes were linear and logical. Insight and judgment were intact, but the examiner noted that prior neuropsychological testing had shown evidence of cognitive defects. The examiner found symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and suicidal ideation, resulting in 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 medication. A May 2012 VA psychiatry note reflects the Veteran reported with depressed mood, low energy, concentration, and self-esteem, and psychomotor retardation. He reported good sleep and denied passive thoughts of death, and suicidal and homicidal ideations. Upon examination, the Veteran appeared casually dressed with good eye contact, and was cooperative. Thought processes were coherent and goal-directed and speech normal. Mood was dysthymic and affect appropriate. In September 2012, February 2013, and January 2014, the Veteran reported with depressed mood, sleep, concentration, and energy, and passive thoughts of death, but denied suicidal and homicidal ideations. He reported that he was upset that he had dementia and that he was unable to get around like he used to. Upon examination, the Veteran appeared casually dressed with good eye contact, and was cooperative. Thought processes were coherent and goal-directed and speech normal. Mood was mildly dysthymic and affect ranged from appropriate to dysphoric. The Veteran denied suicidal and homicidal thoughts and hallucinations, but he reported that he still heard his name being called. In January and August 2013, the Veteran reported with depressed mood, sleep, concentration, and energy, and restlessness, but denied passive thoughts of death, suicidal and homicidal ideations, and hallucinations. He reported that he was forgetting things, not able to function well, and worried about giving up his independence. Upon examination, the Veteran appeared casually dressed with good eye contact, and was cooperative. Thought processes were coherent and goal-directed and speech normal. Mood was dysthymic and affect appropriate. A January 2014 neuropsychology note reflects the Veteran described subjective sadness, some degree of anhedonia, mild decline in appetite, a tendency to ruminate or worry, anger that would arise quickly and take days to diminish, and guilt over his anger. He appeared discouraged, but denied suicidal and homicidal ideations, noting that his religious beliefs prohibited this. The Veteran presented casually dressed with good grooming and hygiene, and he was cooperative, alert, and oriented. Mood was described as okay, better than some days in the past, and affect was blunted but generally sad. Speech was mildly slow, but otherwise normal. Eye contact was mildly diminished and gaze appropriate, but the Veteran had difficulty sustaining attention. Thought processes were logical and well-organized, but the Veteran was easily distracted. The examiner noted that the Veteran’s severe depression almost certainly played some role in his current presentation, including cognitive and motor slowing, irritability, and rumination, and that decreasing mood symptoms would help optimize his cognitive function and overall quality of life. The examiner diagnosed the Veteran with major neurocognitive disorder and major depressive disorder, currently severe. In May and July 2014, the Veteran reported feeling agitated and depressed. He appeared alert and oriented, with good hygiene and no abnormal psychomotor movements. He was cooperative and speech was normal. Mood was euthymic, affect full and congruent, and thought processes were logical and goal-directed. The Veteran denied suicidal and homicidal ideations and hallucinations. In April, August, and November 2015, the Veteran reported depression and that he wanted to talk, as his brother-in-law had died. He reported that he had lessened his home stressors by helping his family move out of his home. The Veteran appeared with good hygiene and was alert and oriented. He was cooperative and speech normal. Mood ranged from euthymic to anxious and affect full and congruent. Thought processes were logical and goal-directed. The Veteran denied suicidal and homicidal ideations and hallucinations. A December 2015 VA examination report reflects diagnoses of depressive disorder and neurocognitive disorder, with the examiner finding that the symptoms of the two conditions overlapped, exacerbated, and fed into each other which made it impossible to separate out the different components. The Veteran reported good relationships with his siblings and children, and described his relationship with his current wife as fine, although he reported domestic violence with his first wife. The Veteran reported watching television and fishing, but had recently started avoiding church. He reported that crowds made him uncomfortable. He was independent with respect to most of his activities of daily living, but needed help with cooking and cleaning, and managing finances. The Veteran reported problems with depression and insomnia, and irritability, and endorsed feelings of punishment, failure, sadness, discouragement, guilt, worthlessness, and helplessness. He reported loss of enjoyment in life and frequent episodes of crying. Upon examination, the Veteran appeared well-groomed and neatly dressed. He was cooperative, alert and oriented, and speech normal. Mood was euthymic and affect was full and congruent. Cognitive functioning, memory, attention and concentration were impaired. Thought processes were logical and goal-directed. The Veteran denied suicidal and homicidal ideations and hallucinations. The examiner found symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, and disturbances in motivation and mood, resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. In December 2016, the Veteran reported loss of two of his children, and that there were nights he was unable to sleep. He described his mood as okay, but that his appetite would come and go. The Veteran appeared with good hygiene and was alert and oriented. He was cooperative and his speech normal. Mood was euthymic and affect full and congruent. Thought processes were logical and goal-directed and the Veteran denied suicidal and homicidal ideations and hallucinations. In July and October 2017, the Veteran reported that he had a better outlook, was trying to be a loving person, and was trying to eat healthier, but that he still had difficulty sleeping. The Veteran appeared with good hygiene and was alert and oriented. He was cooperative and his speech normal. Mood was euthymic and affect full and congruent. Thought processes were logical and goal-directed and the Veteran denied suicidal and homicidal ideations and hallucinations. A February 2018 VA examination report reflects diagnoses of major depressive disorder, recurrent episode with psychotic features, and unspecified neurocognitive disorder, with overlap of symptoms and both disorders interacting to exacerbate the other. Upon examination, the Veteran appeared with appropriate grooming and hygiene and dressed appropriately. Speech was adequate, mood and affect were within normal limits. The Veteran denied suicidal and homicidal ideations, but reported occasional auditory hallucinations. The Veteran presented with adequate insight and judgment, with no indication of delusional thinking or other thought disorder. The examiner found symptoms of depressed mood, anxiety, panic attacks occurring weekly or less often, chronic sleep impairment, impairment of short- and long-term memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, resulting in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. An April 2018 VA psychiatry note reflects the Veteran reported his mood was good and he was able to do things for himself. He reported sleep and appetite were good. The Veteran appeared with good hygiene, was alert and oriented, and cooperate. Speech was normal, mood euthymic, and affect full and congruent. Thought processes were logical and goal-directed, and judgment and insight were good. The Veteran denied suicidal and homicidal ideations and hallucinations. Based upon the evidence of record, including that specifically discussed above, the Board concludes that a disability rating of 70 percent is warranted for the entire period on appeal. Specifically, the evidence reflects that the Veteran’s MDD included symptomatology of depressed mood, crying spells, irritability, paranoia, thoughts of suicide, difficulty sleeping, poor concentration, varied appetite, feelings of worthlessness and hopelessness, and psychomotor agitation. The Veteran also reported auditory hallucinations, but a VA examiner attributed these to the Veteran’s hearing disability. GAF scores of 48, 53, and 60 were assigned during this time, which reflect moderate to serious symptomatology. The Veteran reported having suicidal thoughts or passive thoughts of death in January 2007, April 2010, several times in 2012, February 2013, and January 2014. The Board notes that thoughts of suicidal ideation are only considered in a 70 percent disability evaluation. There are no analogues at the lower evaluation levels. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 -21 (2017) (precedential panel decision). Thus, under the General Formula for Rating Mental Disorders at 38 C.F.R. § 4.130, “the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.” Bankhead v. Shulkin, 29 Vet. App. at 20 (2017). Evidence of more than thought or thoughts of ending one’s life to establish the symptom of suicidal ideation, is not required. In other words, a veteran need not be at a risk, whether a high or low risk, of self-harm in order to establish the criteria of suicidal ideation. Bankhead, 29 Vet. App. 20-21. Accordingly, the Board finds that the Veteran’s suicidal thoughts and passive thoughts of death prior to January 25, 2018 warrant an increased 70 percent evaluation. The Veteran is currently in receipt of a 70 percent evaluation from January 25, 2018. A higher 100 percent schedular rating is not warranted at any point during the appeal period. While the Veteran’s MDD manifested a range of symptoms, those most frequently emphasized by the Veteran were depressed mood, agitation, and crying spells. There is no evidence of total social or occupational impairment that more nearly approximates a 100 percent disability rating, including due to symptoms such 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; and memory loss for names of close relatives, own occupation, or own name, based on review of treatment records, VA examination reports, or the Veteran’s lay statements. Objective examinations and treatment records demonstrate he had appropriate dress and grooming, was alert and oriented, and insight and judgment were fair. The Veteran’s auditory hallucinations were attributed to his hearing disability and while the Veteran presented with thoughts of death, hopelessness and suicidal ideation, he was never described as being a danger to himself or others. There is no question the Veteran experienced periodic increases in symptomology; however, these symptoms have never been shown to be so frequent or disabling that the rise to the level of total occupational or social impairment, which is a level of severity so disabling that some of the examples of symptoms include not knowing one’s own name or posing a persistent threat of danger to self or others. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (finding that symptoms contained in rating schedule criteria 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.”). Additionally, while the frequency and severity of the Veteran’s symptoms fluctuated, and there are instances which suggest the condition may not even rise to the level contemplated by a 70 percent rating, the evidence does not reflect a sustained improvement in the Veteran’s disability. Thus, resolving all doubt in the Veteran’s favor, a 70 percent evaluation is warranted for the entire period on appeal. The Board has considered the lay statements of record regarding the severity of the Veteran’s psychiatric disability and has relied on these reports in determining appropriate disability rating under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7 (2017). The Veteran is competent to report on factual matters of which he has firsthand knowledge and his statements regarding his symptoms are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). Accordingly, the Board concludes that the Veteran’s MDD warrants a disability rating of 70 percent, but no higher, throughout the duration of the appeal. 38 C.F.R. §§ 3.102, 4.3 (2017). See also 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Owen, Associate Counsel