Citation Nr: 1237494 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 10-37 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an increased rating greater than 50 percent for anxiety reaction. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Hartford Regional Office (RO) in Newington, Connecticut, which granted an increased evaluation of 30 percent, effective October 29, 2008, for service-connected anxiety reaction. In December 2010, a hearing was held before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the claims file. The Board remanded the Veteran's claim in June 2011 for additional development. The requested development having been completed, the matter again is before the Board. Following the June 2011 remand, in an April 2012 rating decision the Appeals Management Center (AMC) granted the Veteran an increased disability rating of 50 percent, effective from October 29, 2008. Regardless of the AMC's actions, the issue remains before the Board because the increased rating was not a complete grant of the maximum benefits available. See AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. The Veteran's anxiety reaction is manifested by symptoms such as anxiety, depression, flat affect, intrusive memories, avoidance, sleep impairment, irritability, anger outbursts, concentration problems, hypervigilance, increased startle response, memory problems, and suicidal ideation, all resulting in moderate social and occupational impairment. 2. The Veteran's service-connected anxiety reaction does not present an exceptional or unusual disability picture. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 50 percent for anxiety reaction have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9400 (2012). 2. Application of the extraschedular rating provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012); 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 Veteran 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 Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in March 2009 and June 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. These letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issue on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claim that were lacking to substantiate the claim for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claim. Significantly, neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). 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." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claim. These arguments have referenced the applicable law and regulations necessary for a grant of an increased rating. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records are in the file and the Veteran has not reported treatment for his psychiatric problems through VA. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See 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. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran appropriate VA examination in April 2009 and another VA examination in July 2011, pursuant to the Board's June 2011 remand instructions. The VA examination reports are thorough and supported by the other evidence of record. The examination reports discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. The examination reports also discussed the impact of the disability on the Veteran's daily living. Based on the examination, the absence of evidence of worsening symptomatology since the examination, and the fact there is no rule as to how current an examination must be, the Board concludes the examination reports in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Based on the July 2011 VA examination report and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its June 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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). Increased Rating Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). 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 upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2012). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, 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, 21 Vet. App. 505 (2007). As discussed above, an April 2012 rating decision increased the Veteran's service connected anxiety reaction disability rating from 30 percent to 50 percent, effective from the date of the claim for an increased rating, October 29, 2008. The Veteran claims the rating does not accurately depict the severity of his current condition. The General Rating Formula for Mental Disorders provides, in pertinent part: 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 . . . . . . . . . . . . . . . . . . . . . . . 50 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 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 name . . . . . . . . . . . . . . . . . . . . . . . . . 100 38 C.F.R. § 4.130, DC 9400 (2012). Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). Id. Additionally, a Global Assessment of Functioning (GAF) score is often used by treating examiners to reflect the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266 (1996). A GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). After filing his claim for an increased rating, the Veteran was afforded a VA examination in April 2009. At this examination, it was noted that the Veteran had no history of psychiatric treatment. The Veteran reported that he was concerned that his chronic hyper-startle response would someday lead to a heart attack. The Veteran stated that he had become more emotional about thoughts of the war and reported mild distress to reminders, such as certain sounds and smells. The Veteran indicated that he thought of his friends who died during the war on a daily basis, but denied regular distressing intrusive thoughts of combat. He reported that he did not experience nightmares related to the war. The Veteran discussed mild feelings of detachment in social relationships outside of his family, and some restriction of affect was noted on observation. However, the examiner indicated that these symptoms were mild overall. The Veteran reported no clear attempt to avoid thoughts or conversation about the war and described few other significant symptoms of avoidance. It was noted that the Veteran reported chronic difficulties with sleep. The Veteran described occasional outbursts of anger when he would "explode" on his family members. He denied any episodes of violence and reported no significant consequences of these outbursts. He denied ongoing experience of irritability on a daily basis. The Veteran described limited hypervigilance causing no significant impairment in functioning, as he had no difficulty engaging in social activities, being around groups of people or other settings. He reported no difficulty with his concentration. The Veteran reported that he experienced infrequent fleeting thoughts of suicide with no intent or plan to act on such thoughts. He denied extended periods of depression, panic attacks, or significant anxiety other than when startled or when in total darkness. The Veteran described a close relationship with family members and reported no significant problems with his marriage or in his relationships with his children. He reported that he and his wife had some friends in the area with whom they socialized. The Veteran indicated that economic conditions were likely the primary cause for his job-related problems, and it did not appear that any mental health conditions would have caused him to have job-related difficulties. The examiner noted that he denied current suicidal or homicidal thoughts, and there was no evidence of a thought disorder present. His thoughts process was mildly tangential, although otherwise goal directed. No perceptual disturbances were noted or reported. His cognition was not formally tested at that time, though appeared intact. His insight and judgment was good. The Veteran was diagnosed with anxiety disorder not otherwise specified, mild and assigned a GAF score of 65-70. The examiner noted that the Veteran described mild re-experiencing symptoms, limited avoidance symptoms, and primary difficulty with increased arousal symptoms, including mild sleep disturbance and an exaggerated startle response, which taken together were secondary to his combat service in Vietnam. The Veteran's symptoms caused limited difficulties with his occupational and social functioning over the years by his report, but the Veteran did not appear to see the need for treatment for any of his symptoms at the present time and he had no history of such treatment. A July 2009 statement from the Veteran's then wife described ongoing problems with increased startle response, sleep problems, claustrophobia, hypervigilance, and anger problems. While the Veteran had never resorted to physical violence, the Veteran's then wife expressed concern that as her sons grew older that a physical confrontation could occur. In an August 2009 statement submitted by the Veteran's treating physician, it was noted that the Veteran described episodes of high anxiety, poor sleep, and frequent feelings of imminent catastrophe that could be immobilizing. He had some hypervigilance and increased startle response and often felt that he was at risk for a heart attack due to increased anxiety. In a November 2010 letter, the Veteran's attorney and licensed marriage and family therapist stated that the Veteran's "PTSD" had significantly contributed to the breakdown of his marriage and his wife's decision to seek a divorce. The Veteran had problems with emotional intimacy and extreme volatility in interactions with his then wife and children. He experienced recurrent recollections, survivor guilt, sleep problems, increased arousal, irritability, hypervigilance, and exaggerated startle response. At the December 2010 Board hearing, the Veteran reported that his family had commented on the fact that he isolated himself from others. He asserted that he did not sleep at all and that he had panic attacks about once a day or a couple of times per week. The Veteran also reported that he and his wife were in the process of divorcing. In addition, the Veteran reported some thoughts of suicide, but without plan or intent. He reported that he currently was employed, but had been laid off from his two previous positions. The Veteran attributed these layoffs to unproductivity due to his service-connected prostate problems and the economy. While he did not discuss or attribute his layoffs to psychiatric problems, he did report that he experienced concentration problems in his current position and that his overall productivity was "borderline." A December 2010 statement from a current coworker discussed the Veteran's initial difficulty with the job because of exaggerated startle response and his seat being in the middle of the room with multiple employees seated behind him. When the firm relocated to new office space, the Veteran's concerns in that regard were addressed and he was seated in a corner seat facing most of the other employees. Pursuant to the Board's June 2011 remand, the Veteran was afforded another VA examination, in July 2011. The examiner noted review of the Veteran's claims file and medical records. The Veteran had an undergraduate degree in business and a master's degree in business administration. He currently was working in the field of telephone sales, but anticipated being laid off from the position due to underperformance. The Veteran's wife had filed for divorce and they currently were separated. The Veteran reported drinking on the weekends in social settings, as well as intermittent binge drinking in social situations. Overall, the Veteran denied problems with alcohol consumption. The examiner discussed the Veteran's prior VA examination and other medical records. With respect to his pending divorce, the Veteran attributed the separation to episodes of irritability and decreased sexual intimacy due to side effects of his service-connected prostate problems. The Veteran denied nightmares or significant reexperiencing of traumas, but did think about his combat experiences on a daily basis. The Veteran also had minimal avoidance behavior, including no increased fear or anxiety when discussing his military service. As to social interactions, the Veteran indicated that people did not make him feel uncomfortable. That said, he did indicate that he kept social interactions to superficial conversations and kept busy to avoid extended conversations with others. He described a possible mildly restricted affect. The Veteran discussed symptoms of increased arousal, including increased sleep problems. The Veteran had problems controlling his anger, but without any incidents of physical violence. He also discussed increased concentration problems, with difficulty focusing ever since his marriage started to deteriorate. He reported significant hypervigilance and increased startle response, as well as increased anxiety in darkened areas. The examiner noted the Veteran's reports of daily panic attacks during the December 2010 Board hearing, but the Veteran denied panic attacks at the VA examination. He discussed passive thoughts of suicide, but adamantly denied intent, means, or plans to harm himself. He reported that his close relationship with his children was a strong consideration for not harming himself or others. The Veteran described increased anxiety and feeling overwhelmed, which he attributed to psychosocial stressors that included his pending divorce, pending job loss, and ongoing health issues. The Veteran denied any psychiatric treatment or medication. The examiner concluded that the Veteran's reports indicated that his psychiatric symptoms resulted in intermittent and moderate impact on daily functioning. As to vocational impairment, the examiner noted the Veteran's previous employment and pending lay off. The Veteran had attributed this to a lack of productivity, but also alluded to a restructuring of the company that may have contributed to the lay off. The Veteran also reported being written up for a disturbance after becoming anxious when a bomb was discovered near his office building and causing anxiety in his fellow co-workers. As to social functioning, the Veteran discussed his ongoing problems with his wife, but reported a good relationship with his children that had actually been improving. He also had a support network of several friends and siblings and noted no changes in his social relationships. That said, the Veteran did tend to keep people emotionally at arm's length. The Veteran liked long walks and being involved in his children's extracurricular activities. He was able to maintain personal hygiene and complete activities of daily living without assistance. On examination, the Veteran was well-groomed, alert, fully oriented, had a general calm demeanor, mildly blunted affect, congruent mood, appropriate eye contact, and normal speech rate. Speech content was generally logical, but also tangential. The Veteran denied hallucinations and suicidal or homicidal ideation. Insight and judgment were fair. The examiner diagnosed anxiety disorder not otherwise specified and assigned a GAF score of 60. The examiner noted that the Veteran's psychiatric symptoms may have begun to have a negative impact on occupational functioning, as evidenced by being fired from his last three jobs, although other unrelated factors may also have played some role. The GAF score of 60 was assigned in recognition of the Veteran's recent difficulties maintaining employment. In this case, the Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. The Board concludes, however, that the symptoms and manifestations of his anxiety reaction as shown during the VA examinations and in statements by the Veteran, his then wife, physician, marriage counselor, and co-worker, do not demonstrate a degree of disability that warrants assignment of a rating greater than 50 percent. See 38 C.F.R. § 4.7 (2012). Furthermore, the symptoms and manifestations shown throughout the Veteran's treatment are for the most part consistent throughout the pendency of this appeal or, to the extent that they are not consistent, would warrant a rating less than 50 percent. For this reason, staged ratings are not applicable. See Hart, 21 Vet. App. at 505. In this case, the Veteran's manifestations include anxiety, depression, flat affect, intrusive memories, avoidance, sleep impairment, irritability, anger outbursts, concentration problems, hypervigilance, increased startle response, memory problems, and suicidal ideation. The Board recognizes that the Veteran reported panic attacks during the December 2010 Board hearing; however, the July 2011 VA examiner specifically considered these reports and the Veteran's statements and concluded that his symptoms did not meet the diagnostic criteria of panic attacks. In any event, the 50 percent rating now in effect already contemplates frequent panic attacks. In addition, the Veteran does not display obsessional rituals which interfere with routine activities; exhibit illogical, obscure, or irrelevant speech; report spatial disorientation; or exhibit neglect for personal appearance or hygiene; difficulty in adapting to stressful circumstances; or inability to establish and maintain effective relationships. The Board recognizes that the Veteran has problems with irritability and anger outbursts, but these are not accompanied by periods of violence. As noted above, the Board acknowledges that a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan, 16 Vet. App. at 442; however, as the Court held in Mauerhan, without the examples noted in the rating criteria differentiating a 50 percent evaluation from a 70 percent evaluation would be extremely ambiguous. The Board is to consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. If the evidence demonstrates that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate equivalent rating should be assigned. Id. In this case, however, the Board concludes that the Veteran's anxiety reaction symptoms do not cause occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, as necessary to warrant a 70 percent rating. Nor does the Veteran exhibit total occupational and social impairment as contemplated for a 100 percent rating. With respect to the Veteran's occupational functioning and impairment, the Board recognizes that the Veteran was terminated from two and likely three previous jobs since 2007 for low productivity. There is evidence of record indicating that certain psychiatric symptoms, most specifically concentration problems, contributed to his occupational difficulties. That said, the Veteran's generally consistent history of employment during the appellate time period indicates that while his psychiatric symptoms may affect his overall productivity levels, he has been able to function in an occupational environment and retain employment for extended periods of time with various employers. As such, while the Veteran may have some level of occupational impairment due to his anxiety reaction symptoms, the Board finds that based on the Veteran's work history he does not have deficiencies in work functioning as contemplated for a 70 percent rating or total occupational impairment as contemplated for a 100 percent rating. In this regard, the Board notes that the 50 percent rating currently assigned is recognition of significant industrial impairment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). As to the Veteran's social functioning and impairment, the Board recognizes that the Veteran's anxiety reaction and physical problems related to his service-connected prostate problems have resulted in his separation and presumed divorce from his wife of over 20 years. In addition, with respect to his other relationships, the Veteran tends to remain emotionally distant. Thus, the Veteran does have some social impairment due to his anxiety reaction. That said, the Veteran retains a good relationship with his children and enjoys spending time with them and being involved in their extracurricular activities. In addition, he maintains a social support network of several friends and his siblings on which he relies. The Veteran also has indicated that he is not bothered by interacting with others in a social setting. The Board observes that the Veteran has worked for years in telephone sales, which also suggests that he is able to interact with others on a social level. Finally, the Veteran has reported that on weekends he attends social functions with friends and others. As such, while the Board acknowledges some degree of social impairment, as exhibited by his emotional distancing himself from others and his divorce from his wife, the Veteran has a close relationship with his children and maintains a stable social network with friends and an ongoing good relationship with his siblings. The Board certainly is sympathetic to the social difficulties experienced by the Veteran and any associated effects felt by his family and friends; however, the Veteran does retain the ability to function in both the home and his community. As such, while the Veteran may have significant social impairment due to his anxiety reaction symptoms, the Board finds that based on the lay and medical evidence of record he does not have deficiencies in social functioning as contemplated for a 70 percent rating or total social impairment as contemplated for a 100 percent rating. In summary, the Veteran does not have deficiencies in social or occupational functioning as contemplated for a 70 percent rating or total social and occupational impairment as contemplated for a 100 percent rating. He does have deficiencies in these areas, but the greater weight of evidence demonstrates that it is to a degree less that is contemplated by the 50 percent rating currently assigned. Furthermore, even resolving any reasonable doubt in the Veteran's favor, the Board finds that he does not meet the requirements for an evaluation greater than the current 50 percent schedular rating. While the Veteran has some of the criteria for a 70 percent rating, see Mauerhan, 16 Vet. App. at 442, the Board concludes his overall level of disability does not exceed his current 50 percent rating. For example, the Board acknowledges that the Veteran has reported on multiple occasions that he has occasional suicidal ideation without plan or intent. Such manifestation is among the criteria for a 70 percent rating. The Veteran's overall manifestations and level of impairment repeatedly noted in the record are otherwise commensurate with the degree of social and industrial impairment required for the assignment of the current 50 percent disability evaluation. The Veteran's speech is not illogical, obscure or irrelevant. He is not in a near-continuous state of panic or disorientation. He does not experience hallucinations. Although he exhibits some impairment in concentration and tangentiality of speech, his thought process and communication is overall logical and coherent. He does not exhibit inappropriate behavior. His personal hygiene is appropriate. There is no objective evidence of disorientation. He does have some social impairment, but he has an overall good relationship with his children, friends, and siblings. Again, in determining that a rating in excess of 50 percent is not warranted, the Board has considered the Veteran's complaints regardless of whether they are listed in the rating criteria, but for the reasons discussed above concludes that the Veteran's level of social and occupational impairment does not warrant a rating in excess of the currently assigned 50 percent rating. The Board has considered the Veteran's claim and the lay and medical evidence, but concludes the preponderance of the evidence is against granting a higher rating for anxiety reaction, and thus, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Extraschedular Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected anxiety reaction is inadequate. A comparison between the level of severity and symptomatology of the Veteran's anxiety reaction with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran reports multiple psychiatric symptoms, including anxiety, depression, flat affect, intrusive memories, avoidance, sleep impairment, irritability, anger outbursts, concentration problems, hypervigilance, increased startle response, memory problems, and suicidal ideation. The current 50 percent rating contemplates these and other psychiatric symptoms. Thus, the Veteran's current schedular rating under DC 9400 is adequate to fully compensate him for his disability on appeal. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to an increased rating greater than 50 percent for anxiety reaction is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs