Citation Nr: 0812509 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 99-10 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 0 percent (compensable) for an anxiety disorder before October 23, 2006. 2. Entitlement to an evaluation in excess of 30 percent for an anxiety disorder on or after October 23, 2006. REPRESENTATION Appellant represented by: National Veterans Legal Services Program, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Heneks, Associate Counsel INTRODUCTION The veteran served on active duty from February 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied the benefit sought on appeal. The veteran's appeal is now under the jurisdiction of the St. Petersburg, Florida, RO. The veteran was granted a 30 percent rating for his service-connected anxiety disorder in a December 2006 rating decision. However, on a claim for an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Since the grant of the 30 percent rating is not a full grant of the benefits sought on appeal, the matter remains before the Board for appellate review. In August 1999, the veteran presented testimony at a hearing conducted at the San Juan RO before a hearing officer. A transcript of this hearing is in the veteran's claims folder. In a July 2001 decision, the Board remanded the issue on appeal for further development. In a July 2005 decision, the Board remanded the appeal once again to comply with the provisions of Stegall v. West, 11 Vet. App. 268 (1998). The appeal has once again returned to the Board for further review. The Board finds that the RO substantially complied with the remand directives with regard to this appeal. In this regard, the veteran was given another opportunity to identify any medical providers and to complete a VA examination in connection with his claim as outlined in the July 2005 remand directives. As such, the Board will proceed. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Before October 23, 2006, the veteran's anxiety disorder was not productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 3. On or after October 23, 2006, the veteran's anxiety disorder was not productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for an anxiety disorder were not met before October 23, 2006. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.130, Diagnostic Code 9400 (2007). 2. The criteria for a 50 percent for an anxiety disorder, and no higher, were met on October 23, 2006. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.130, Diagnostic Code 9400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that "upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application." Dingess/Hartman, 19 Vet. App. at 486. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. A letter dated in September 2001 fully satisfied the duty to notify provisions elements 2, 3, and 4. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187; Pelegrini II. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Although this letter was not sent prior to initial adjudication of the veteran's claim, this was not prejudicial to him, since he was subsequently provided adequate notice, and the claim was readjudicated and additional supplemental statements of the case (SSOCs) were provided to the veteran in January 2002, September 2004, and December 2006. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The letter advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The letter also informed the veteran what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed conditions and enough information for the RO to request records from the sources identified by the veteran. In this way, he was advised of the need to submit any evidence in his possession that pertains to the claim. He was specifically told that it was his responsibility to support the claim with appropriate evidence. However, in order to satisfy the first Pelegrini II element for an increased-compensation claim, section 5103(a) compliant notice must meet the following four part test: (1) that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores v. Peake, -- Vet. App. --, No. 05-0355, 2008 WL 239951 (Jan. 30, 2008). For the following reasons, the Board finds that the elements of the Vazquez-Flores test have either been met or that any error is not prejudicial. Preliminarily, the Board notes that the notice provided in this case was issued prior to the decision in Vazquez-Flores. As such it does not take the form prescribed in that case. Failure to provide pre-adjudicative notice of any of the necessary duty to notify elements is presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). The Secretary has the burden to show that this error was not prejudicial to the veteran. Id., at 889. Lack of prejudicial harm may be shown in three ways: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law. Id., at 887; see also Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Federal Circuit indicated that this was not an exclusive list of ways that error may be shown to be non prejudicial. See Sanders, at 889. In order for the Court to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair. See also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The September 2001 letter requested that the veteran provide evidence describing how his disability had worsened. In addition, the veteran was questioned about the effect that worsening had on his employment and daily life during the course of the February 1998, October 1999, and October 2006 VA examinations performed in association with his claim. During his August 1999 hearing, he was specifically questioned about the impact his disability had on his daily life and the effect on his employment. The Board finds that the notice given, the questions directly asked and the responses provided by the veteran both during his examinations and in his own statements at his hearing show that he knew that the evidence needed to show that his disability had worsened and what impact that had on his employment and daily life. As the Board finds the veteran had actual knowledge of the requirement, any failure to provide him with adequate notice is not prejudicial. See Sanders, supra. The Board finds that the first criterion is satisfied. See Vazquez-Flores. As to the second element, the Board notes that the veteran is service connected for a an anxiety disorder. As will be discussed below, his anxiety disorder is rated under Diagnostic Code 9400, 38 C.F.R. § 4.130. Diagnostic Code 9400 provides that the rating is dependent on the degree of occupational and social impairment. As such, entitlement to a higher disability rating would be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of his anxiety disorder and the effect that worsening has on the claimant's employment and daily life. Therefore, the Board finds that the September 2001 notice letter satisfied element two for the claim for the veteran's service-connected anxiety disorder. See Vazquez-Flores. As to the third element, a January 2007 letter fully satisfied this element. Although the claim was not subsequently readjudicated after the notice was provided, the letter advised the veteran that if he had any information or evidence that he had not previously told VA about or provided to VA which concerned the level of his disability or when it began, he had a year to do so. The Board notes that a year has passed since the date of this letter and the veteran has not submitted any additional information. Since the veteran did not submit any additional evidence after the January 2007 letter was sent to him, the failure by the VA regional office to conduct a subsequent readjudication is not prejudicial because the result of such a readjudication on exactly the same evidence and law previously considered would be no different than the previous adjudication. See, generalyl, Medrano v. Nicholson, 21 Vet. App. 165 (2007). The January 2007 notice letter notified the veteran that should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. That letter indicated that a disability rating can be changed when there are changes in the condition. The letter stated that a rating will be assigned from 0 percent to 100 percent depending on the disability involved and explained that VA uses a schedule for evaluating disabilities that is published in Title 38, Code of Regulations, Part 4. It was also noted that a disability evaluation other than the level found in the schedule for a specific condition can be assigned if the impairment is not adequately covered by the schedule. The January 2007 letter further indicated that evidence of the nature and symptoms of the disability, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment would be considered in determining the disability rating. The Board finds that the January 2007 letter satisfied the third element of Vazquez- Flores. As to the fourth element, the September 2001 letter did provide notice of the types of evidence, both medical and lay, including employment records, which could be submitted in support of his claim. The Board finds that the fourth element of Vazquez-Flores is satisfied. In light of the foregoing, the Board finds that the requirements of Vazquez-Flores are met for the claim for an increased rating on appeal. The Board, therefore, finds that the requirements of Pelegrini II are met and that the VA has discharged its duty to notify on the increased rating for an anxiety disorder. See Pelegrini II, supra. As noted above, in a letter dated in January 2007, the veteran was provided with notice of the type of evidence necessary to establish a disability rating and also for the effective date for the disability on appeal. Although the claim was not subsequently readjudicated because the veteran did not submit any additional evidence after the January 2007 letter was sent to him, the failure by the VA regional office to conduct a subsequent readjudication is not prejudicial. See, generally, Medrano, 21 Vet. App. 165. In any event, the veteran is appealing the degree of disability, demonstrating that he has actual knowledge of this element. Further, the veteran has not disputed the effective date. As such, Board finds that the evidence does not show, nor does the veteran or his representative contend, that any deficiencies in timeliness have affected the essential fairness of the adjudication. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007). VA has satisfied its duties to inform and assist the veteran at every stage of this case. All available service medical records as well as all VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the veteran's claim. The veteran testified at a hearing conducted in August 1999. VA has also assisted the veteran and his representative throughout the course of this appeal by providing them with a SOC and SSOCs, which informed them of the laws and regulations relevant to his claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2007). The RO provided the veteran appropriate VA examinations in February 1998, October 1999, and October 2006 in connection with his claim. There is no objective evidence indicating that there has been a material change in the severity of the veteran's service- connected disability since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The examination in this case is adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). LAW AND ANALYSIS In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, No. 05-2424, 2007 WL 4098218, at *3 (U.S. Vet. App. Nov. 19, 2007). The pertinent provisions of 38 C.F.R. § 4.130 relating to rating mental disorders, including an anxiety disorder, read as follows: 70% Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 50 percent 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. 30 percent Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 10 percent Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 0 percent A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9400. GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), p. 32). GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). 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. 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). See 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the DSM-IV, for rating purposes). The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. Under the criteria 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. See 38 C.F.R. § 4.126 (2007). 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. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. Id. 1. Entitlement to an evaluation in excess of 0 percent for an anxiety disorder before October 23, 2006. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the veteran was not entitled to a compensable evaluation for his anxiety disorder before October 23, 2006. The evidence did not show occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. In this regard, during the February 1998 VA examination, the veteran reported that he never had any psychiatric problems or treatment. He was married to his second wife, had three adult children, and had worked as a post employee for more than 25 years. Examination revealed that the veteran looked tense and rather anxious, but he was relevant, coherent, logical and not delusional, and not hallucinating, suicidal, or homicidal. His GAF score was 85. During his August 1999 hearing, there appeared to be difference between the veteran's account of his anxiety disorder and that of his wife. The veteran testified that although he saw a doctor once a few years ago, he had no treatment for a psychiatric disorder and was able to ignore his anxiety at work. In fact, he stated when he felt anxious he worked more to lessen his anxiety. He also testified that he was devoted to his wife and home had a good relationship with his wife but did not like being nagged. Additionally, the veteran did not take medications and indicated that he would not take them if they were prescribed. However, the veteran's wife described him as quick to anger and noted that he did not want her or her son to leave the house as he was afraid they would get hurt. She added that he was harassed at work, did not get along well with the neighbors, did not try to see his adult children, and wore the same clothing over and over again. However, the Board finds it significant that two months later during his October 1999 VA examination, the veteran reported essentially the same lack of symptomatology as he did in February 1998. In fact, physical examination revealed that the veteran was clean and adequately dressed and groomed. He was alert and oriented, had a full range of affect, good attention, concentration, and good insight and judgment. He was not hallucinating, suicidal, or homicidal. Again, his GAF score was 85. As reflected above, an 85 GAF score indicates minimal symptoms, good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns. As such, the Board attaches more probative weight to the February 1998 and October 1999 VA examinations and the testimony of the veteran during his August 1999 hearing than that of his wife. As such, a compensable rating before October 23, 2006, was not warranted. 38 C.F.R. § 4.7, 4.130, Diagnostic Code 9400. Hart v. Mansfield, No. 05-2424, 2007 WL 4098218, at *3 (U.S. Vet. App. Nov. 19, 2007). 2. Entitlement to an evaluation in excess of 30 percent for an anxiety disorder on or after October 23, 2006. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the veteran is entitled to a 50 percent disabling evaluation, and no higher, for his anxiety disorder on or after October 23, 2006. The evidence did show symptoms consistent with occupational and social impairment with reduced reliability and productivity, and no higher. However, the evidence did not show occupational and social impairment, with deficiencies in most areas. In this regard, he indicated he had chronic worry, restlessness, a heightened startle response, difficulty concentrating, irritability, muscle tension, and sleep disturbances, and panic attacks that occurred once a month that had minimal impairment of his employment. Although the veteran contended that he retired in part due to his anxiety and the examiner commented that his symptoms had been significant to inhibit full occupational and social functioning, the examiner characterized the veteran's symptoms as moderate. Further, the examiner indicated this his chronic pain was also a significant factor in his retirement. Importantly, although the examiner commented that the impact on his social functioning was severe, there was no indication that the veteran had an inability to establish and maintain effective relationships. Importantly, although the veteran was noted to be unable to maintain minimal personal hygiene, his symptoms, when considered as a whole, do not more nearly approximate the criteria for a 70 percent rating. In this regard, the veteran was alert and oriented, had no impairment of his thought process or communication, no delusions or hallucinations, no inappropriate behavior, and no suicidal or homicidal thoughts, no memory loss or impairment, and no obsessive or ritualistic behaviors, or lack of impulse control. The veteran also had a normal rate and flow of speech. Despite the examiner' comments that the veteran was not able to perform basic aspects of daily living, it was clarified that the veteran's wife handled the money and paid the bills, and he was otherwise competent for the purposes of VA benefits and knew the amounts of types of bills owed monthly and could handle the payment prudently. Importantly, the examiner assigned a GAF score of 60 which reflected more moderate symptoms or moderate difficulty in social and occupational functioning. As such, the evidence as of October 23, 2006, when considered as a whole, more nearly approximated the criteria for a 50 percent rating, and no higher. 38 C.F.R. § 4.7, 4.130, Diagnostic Code 9400. Hart v. Mansfield, No. 05-2424, 2007 WL 4098218, at *3 (U.S. Vet. App. Nov. 19, 2007). In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). In this case, however, there has been no showing that the veteran's service-connected anxiety disorder has caused marked interference with employment beyond that contemplated by the schedule for rating disabilities, necessitated frequent periods of hospitalization, or otherwise renders impractical the application of the regular schedular standards utilized to evaluate the severity of his disability. In the absence of such factors, the Board finds that the requirements for an extraschedular evaluation for the veteran's service-connected anxiety disorder under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Entitlement to a compensable evaluation for an anxiety disorder before October 23, 2006, is denied. Entitlement to a 50 percent evaluation for an anxiety disorder on October 23, 2006, and no higher, is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs