Citation Nr: 1304749 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 02-00 474 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to an increased disability rating for service-connected anxiety reaction, secondary to intracranial infection, viral encephalitis, currently evaluated as 30 percent disabling. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from September 1964 to September 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2001 rating decision by which the RO denied entitlement to a compensable evaluation for the Veteran's service-connected anxiety disorder. In July 2004, the Board remanded this matter to the RO for additional development of the evidence, to include a VA examination. In an August 2005 rating decision, the RO increased the Veteran's disability evaluation to 10 percent, and by January 2007 decision, the Board granted a 30 percent disability rating for the Veteran's service-connected anxiety reaction. The Veteran appealed the Board's January 2007 decision to the Court of Appeals for Veterans Claims (Court), and by June 2008 Order, the Court endorsed a June 2008 Joint Motion for Partial Remand (Joint Motion) and vacated, in part, the January 2007 Board decision, and remanded the matter for compliance with Joint Motion. In July 2009, the Board remanded the matter for additional development of the evidence, to include securing outstanding VA treatment records and an additional VA examination. In June 2011, the Board again remanded this matter for additional development of the evidence, to include securing VA treatment records and the scheduling of a VA mental health examination. The requested action has been completed satisfactorily, the claim was readjudicated in a September 2012 supplemental statement of the case, and the Board may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). In addition to the paper claims folder, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. Both the Board and originating agency (see September 2012 Supplemental Statement of the Case) have reviewed the VVA file, which includes VA treatment records. FINDING OF FACT Throughout the appeal period, the service-connected anxiety reaction, secondary to intracranial infection, viral encephalitis, has been manifested by transient complaints of anxiety, some complaints of memory difficulties, sleep difficulties, and some impaired concentration. There has been no evidence of impaired speech, panic attacks more than once a week, impaired judgment or impulse control, impaired abstract thinking, hallucinations or delusions, negative effect on completing activities of daily living or personal hygiene, or difficulty in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 30 percent for the Veteran's service-connected for anxiety reaction, secondary to intracranial infection, viral encephalitis, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO notified the Veteran of the evidence necessary to substantiate the claim as well as his and VA's respective responsibilities for obtaining evidence by letter dated in July 2004. Any defect as to the timing of the VCAA notice was cured because the RO readjudicated the claim on numerous occasions after that date, to include in a September 2012 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and re-adjudicating the claim in the form of a statement of the case to cure timing of notification defect). VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service treatment records, VA clinical records, and private medical records. The Veteran was afforded several VA mental health examinations. To that end, when VA undertakes to provide a medical examination, it must ensure that such examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examinations provided herein and opinions obtained are adequate, as they are based on a review of the evidence of record as well as comprehensive interviews of the Veteran, and the examination reports contain full rationales for the opinions rendered. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Law and Regulations Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a veteran's disability. Schafrath, 1 Vet. App. at 594. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The schedular criteria, effective as of November 7, 1996, incorporate the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. §§ 4.125, 4.130 (2012). The Veteran's service-connected anxiety reaction, secondary to intracranial infection, viral encephalitis, has been rated 30 percent disabling under Diagnostic Code 9400, which pertains to generalized anxiety disorder (GAD). The Board notes that mental disorders are rated under a formula, which is outlined in 38 C.F.R. § 4.130. The current 30 percent rating is warranted for GAD if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted if it is productive of 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating, may be assigned 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); and inability to establish and maintain effective relationships. Id. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent schedular evaluation contemplates 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. 38 C.F.R. 4.130, Diagnostic Code 9400. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A GAF score of 39 to 40 indicates "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; child frequently beats up other children, is defiant at home, and is failing at school)." Id. A GAF score of 41-50 indicates "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A GAF score of 51-60 indicates "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. A GAF score of 61-70 indicates "Mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Id. A GAF score of 71-80 reflects 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). Id. The GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard, 9 Vet. App. at 267; Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue. The GAF score must be considered in light of the actual symptoms of a veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a) (2012). The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The United States Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). The Board is precluded from differentiating between the symptomology attributable to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App.181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Factual Background The Veteran contends that his service-connected anxiety reaction, secondary to intracranial infection, viral encephalitis, warrants an evaluation in excess of 30 percent. The Board notes that the Veteran suffers from psychiatric and cognitive disorders that are not subject to service connection. Specifically, service connection had been denied for posttraumatic stress disorder (PTSD) and for depression and memory loss associated with prostate cancer. To the extent possible, the Board will consider only the symptoms associated with the service-connected anxiety disorder. Mittleider, supra. On VA examination in November 2000, the Veteran stated that he was told that he was nervous and anxious and indicated that he was often teased at work for being forgetful. The Veteran himself stated that he sometimes felt pressured or somewhat agitated but did not necessarily feel nervous. He reported poor concentration and forgetfulness for day-to-day tasks due to which he was assigned easier duties at work. He was not forgetful for person, place, or time. Rather, he was forgetful regarding complex tasks at work. The Veteran complained of sleep difficulties. He denied feelings of detachment from others and indicated that he had a full range of emotion. The Veteran asserted that he was optimistic and denied depression. His appetite was good, and his current interests were intact. He denied both homicidal and suicidal ideation. On interview, the Veteran had been working for the same employer, a tire company, for 28 years. He had been married for 30 years and described the marital relationship as close and stable. On mental status examination, the Veteran was friendly and polite and was fully oriented. Eye contact was excellent. He was generally logical. There were no delusions, hallucination, or obsessions. Insight was fair, and judgment was good. Abstract thinking skills were good. The Veteran struggled with serial sevens and serial threes. There was mild psychomotor agitation. The Veteran's mood was good, but his affect was slightly agitated. Speech was mildly pressured. The examiner could discern no psychiatric diagnosis, but a cognitive deficit was suspected, and neuropsychological testing was suggested. On December 2000 VA neuropsychological testing, the Veteran reported memory problems and difficulty sustaining a train of thought. He indicated that he had retired two years earlier from his 30-year position with a tire company as a press operator because he felt his nerves were getting worse, and his speed was not as good as it had been. He also had difficulty recalling instructions. On interview, the Veteran presented as an anxious individual. His speech was slightly pressured, and he was jittery in a nervous manner. Pursuant to testing, the examiner noted that the Veteran's major problem was one of anxiety. Test performance raised questions of Ganser syndrome; the possibility of malingering was raised. The examiner believed that the Veteran suffered from an anxiety disorder that was sufficient to interfere with concentration. Memory dysfunction was not apparent on examination. In an addendum, the November 2000 VA examiner indicated that December 2000 neuropsychological testing did not reveal a cognitive disorder. There was, according to the November 2000 VA examiner, a possibility of malingering especially since the Veteran denied anxiety on VA examination in November 2000 but endorsed anxiety on neuropsychological testing a month later. The November 2000 VA examiner reiterated that his Axis I diagnosis was "no diagnosis." In June 2001, the Veteran reported that he was an "anxious, nervous person." He thought about Vietnam experiences more since retirement. The VA social worker's assessment was of anxiety, depression, PTSD, and cognitive impairments. A July 2001 VA progress note reflects complaints of depression and only "some anxiety." The Veteran described his anxiety as restlessness. The Veteran denied symptoms of panic attacks, obsessive compulsive disorder, and psychosis. The examiner diagnosed anxiety disorder not otherwise specified and possible PTSD and indicated that the Veteran did not meet the full criteria for a depressive disorder. The examiner assessed a GAF score of 55. The examiner emphasized that the symptoms of anxiety that the Veteran described were vague. In October 2001, a VA psychologist diagnosed major depressive disorder and PTSD to which he assigned a GAF score of 65 pursuant to complaints of dysphoria that worsened since retirement, bad dreams, lack of appetite, anhedonia, etc. However, another VA progress note dated that very day reflected a diagnosis of anxiety disorder not otherwise specified and possible PTSD along with a GAF score of 55. At that time, the Veteran reported that his wife noticed anxiety. He indicated that his mood was fairly low. Objectively, the Veteran was neatly dressed and groomed, pleasant and cooperative, with normal speech and thought processes. Insight was fair and judgment was good. There was passive suicidal ideation with no intent or plan. The Veteran's mood was low, and his affect was restricted. On October 2001 VA mental disorders examination, the Veteran reported bad dreams with disturbed sleep. He stated that he was hypervigilant and had an increased startle response but had minimal irritability. The Veteran denied symptoms of obsessive compulsive disorder and indicated that he worried about specific things; he had no global worries and no catastrophic thoughts associated with the worry. While the Veteran stated that he was more irritable than others, when pressed for details, he noted no major difficulties with irritability. The Veteran did not have a history of work absenteeism and no legal difficulties. He enjoyed gardening. The Veteran had good relationships with others to include friends and family members. The Veteran indicated that he retired from his longtime job at the tire company due to difficulty with stress management; on examination, difficulty with stress management was not apparent. On objective examination, the Veteran was described as appropriately groomed and dressed. Eye contact was fair, behavior was appropriate, speech was normal, thought processes were normal, there were no psychomotor abnormalities, mood was "okay," but his affect was somewhat constricted. The examiner emphasized that when discussing the deaths of his parents and the recent diagnosis of prostate cancer, the Veteran displayed no signs of anxiety. The Veteran indicated that he felt anxious about money, but the examiner could discern no objective signs of anxiety such as psychomotor agitation or a more anxious affect. There was no suicidal or homicidal ideation and no evidence of hallucinations or delusions. Insight and judgment were fair. Cognition was grossly intact. The Veteran denied symptoms of obsessive compulsive disorder, social phobia, panic disorder, and mania. Based on the foregoing observations, the examiner found no Axis I diagnosis. The Veteran lacked sufficient criteria for any anxiety disorder. The examiner explained that even the criteria for GAD were not met because of the lack of expressed anxiety and the lack of globalization of anxiety. The examiner suspected that the Veteran was seeking secondary gain in the form of monetary compensation for a psychiatric disorder. A February 2002 VA progress note indicated a diagnosis of anxiety disorder not otherwise specified and possible PTSD. A GAF score of 55 was assigned. At that time, the Veteran indicated that his anxiety symptoms might have worsened. However, the Veteran described vague symptoms such as a nervous stomach and being "shaky on the inside." In March 2002, a VA examiner indicated that the Veteran's anxiety disorder was sufficient to interfere with concentration. In April 2002, the Veteran was diagnosed with anxiety disorder not otherwise specified and possible PTSD and assigned a GAF score of 60. At that time, the Veteran reported that anxiety symptoms were better. He described his mood as "pretty good." He described his anxiety as a nervous feeling in the stomach and an inability to sit still. Objectively, the Veteran was neatly dressed and groomed as well as pleasant and cooperative. Speech and thought processes were normal. The Veteran denied suicidal and homicidal ideation. Judgment was good; insight was poor. The Veteran's mood was euthemic, and he appeared anxious. The examiner indicated that the Veteran was expressing a somewhat vague sense of anxiety. A July 2002 VA progress note indicated an Axis I diagnosis of anxiety disorder not otherwise specified and possible PTSD. A GAF score of 75 was assessed. The Veteran indicated that his mood was "pretty good" and that his anxiety symptoms had improved. In August 2002, the Axis I diagnosis was of anxiety disorder not otherwise specified and possible PTSD. A GAF score of 55 was assigned. An October 2002 VA progress note indicated a diagnosis of anxiety disorder not otherwise specified and possible PTSD along with a GAF score of 55. At that time, the Veteran complained of constant depressive symptoms since January 2002, fatigue, poor sleep, anhedonia, hopelessness, worthlessness, and poor appetite. The examiner noted expressly that the Veteran had been suffering from depression for 10 months. The examiner made no explicit mention of anxiety or of symptoms related thereto. In November 2002, during VA treatment, an Axis I diagnosis of major depressive disorder, anxiety disorder not otherwise specified, and possible PTSD was rendered. A GAF score of 55 was assigned. At that time, the Veteran reported poor concentration, strange dreams although he could not recall content, and vague suicidal ideation that he could easily put aside. The examiner noted that there was no suicidal or homicidal ideation and indicated that the Veteran was experiencing an adverse reaction to psychotropic medication; the Veteran expressed interest in trying a different medication. A December 2002 VA progress note indicated a diagnosis of major depressive disorder, anxiety disorder not otherwise specified, and possible PTSD. A GAF score of 60 was assigned. The examiner noted a depressive phase during the preceding 10 months and that psychotropic medication was beginning to be effective. The examiner described no specific symptoms of anxiety. During VA psychiatric treatment in March 2003, an Axis I diagnosis of major depressive disorder was rendered. There was no diagnosis of anxiety. A May 2003 VA progress note indicated an Axis I diagnosis of major depressive disorder/PTSD and a history of anxiety disorder not otherwise specified. A GAF score of 50 was assigned. On examination, the Veteran described symptoms related to his major depressive disorder. He denied homicidal and suicidal ideation but complained of poor memory. The Veteran was feeling discouraged by prostate cancer and ensuing urinary incontinence. The examiner indicated that the Veteran retired from his job at the tire company due to physical health. The examiner asserted that the Veteran had depression that seemed to be associated with a 2001 diagnosis of prostate cancer. The Veteran displayed some PTSD symptoms, but the examiner only noted a history of PTSD. A July 2003 VA progress note indicated a diagnosis of mild major depressive disorder and a history of anxiety disorder not otherwise specified. A GAF score of 60 was assigned. The Veteran reported that his biggest problem was fatigue, and the fatigue caused him to feel depressed. The Veteran indicated that he had been chronically tired since radiation treatment for cancer in 2002. The Veteran complained of memory and concentration problems. He denied suicidal ideation and indicated that he felt positive about his prognosis. The Veteran indicated that he was discouraged by the symptoms secondary to prostate cancer, which included incontinence and sexual dysfunction. The examiner indicated that the depression seemed to have started after the 2001 diagnosis of prostate cancer. In December 2003, the Veteran was diagnosed with mild major depressive disorder and a history of anxiety disorder not otherwise specified. A GAF score of 50 was assessed. Again, he indicated that his major symptom was fatigue and that the onset of depression began with radiation treatment for prostate cancer. The examiner noted that the Veteran retired due to physical health. In June 2004, the Veteran was diagnosed with major depressive disorder and a history of anxiety disorder not otherwise specified. A GAF score of 40 was assessed. The Veteran reported that he felt run down all the time and that he had been chronically tired since radiation therapy for cancer. The examiner reiterated that the most prominent symptom was fatigue. The examiner noted that the Veteran retired due to physical limitations. On July 2004 VA mental disorders examination, the Veteran reported that he retired because his job was very physically demanding. He stated that he got along well with colleagues. He recounted that during the last year or two of employment, he had some memory problems and would write himself notes. The Veteran specifically denied episodes of surges of anxiety and denied symptoms of panic attacks. There was no social phobia. He denied impulsive behavior. The Veteran simply stated that his mood was down. He denied paranoia and hallucinations. The Veteran's wife indicated that she did not notice symptoms of anxiety and tension and that the Veteran was calm and accepting of stressful life events. The examination report indicated that the Veteran had symptoms of low motivation and energy for the past few years, which likely contributed to his decreased work efficiency. The examiner opined that he did not demonstrate symptoms of anxiety, which would likely decrease work efficiency. The Veteran described his mood as a feeling of low energy. The Veteran was diagnosed with minimal anxiety symptoms; the examiner indicated that the Veteran did not endorse many anxiety symptoms and rather complained of low motivation, low energy, and fatigue. He acknowledged having trouble remembering names of people he recognized as well as needing to write lists when going to the store and at times leaving his keys in the door. The examiner noted that the foregoing was consistent with mild memory loss. The Veteran was noted to have a reasonable amount of abstract ability. A GAF score of 51 was assigned. The examiner explained that the GAF score was almost entirely related to the Veteran's low motivation and low energy, which were most likely related to his depression. In November 2006, an Axis I diagnosis of major depressive disorder, PTSD, and a history of anxiety disorder not otherwise specified was rendered. A GAF score of 40 was assigned. At that time, the Veteran reported depression and low motivation. The examiner noted residual symptoms of depression. In January 2007, an Axis I diagnosis of major depressive disorder, PTSD, and a history of anxiety disorder not otherwise specified was rendered. At that time, the Veteran denied anxiety symptoms. In June 2007, an Axis I diagnosis of major depressive disorder, PTSD, and a history of anxiety disorder not otherwise specified was rendered. The Veteran's main complaint was of fatigue. In September 2007, the Veteran's anxiety disorder not otherwise specified was said to be in full remission. The Veteran denied all anxiety symptoms such as worry, muscle tension, and panic attacks. In November 2007, the Veteran underwent a VA neuropsychological examination. Mild cognitive impairment was diagnosed. On November 2007 VA mental disorders examination, the Veteran primarily complained of depression and fatigue. He also complained of memory problems. The Veteran also reported symptoms consistent with PTSD such as being "jumpy with noises." On objective examination, the Veteran was fully oriented and cooperative. He had difficulty with tasks requiring concentration. The Veteran denied suicidal ideation, although he endorsed passive thoughts upon which he would never act. Hygiene was good. The Veteran was able to complete the activities of daily living without assistance. There were no obsessions or rituals interfering with daily functioning. Speech was normal. There were no panic attacks. The Veteran expressly denied any current difficulty with significant anxiety or worry. Behavior was appropriate although there was some irritability. The examiner diagnosed major depressive disorder, anxiety disorder not otherwise specified, and mild cognitive impairment. The GAF due to anxiety disorder was between 60 and 65. The GAF due to major depressive disorder was between 50 and 55. In December 2007, the Veteran's anxiety disorder not otherwise specified was again said to be in full remission. The Veteran continued to deny anxiety symptoms such as worry, muscle tension, and panic attacks. In March, June, September, and December 2008, the Veteran's anxiety disorder not otherwise specified was again said to be in full remission. In December 2008, the Veteran denied all daytime anxiety, and there were only occasional nightmares. In March and June 2009, the Veteran's anxiety disorder not otherwise specified was in full remission. He denied symptoms of anxiety. In August 2009, the Veteran underwent a VA examination. The examiner noted that with his current medication regimen, and without any counseling, the Veteran was in full remission of former psychiatric conditions to include anxiety disorder not otherwise specified. There was no evidence of impaired thought processes. There was no evidence of delusions or hallucinations. No inappropriate behavior was noted. The Veteran denied suicidal and homicidal ideation. He maintained good hygiene and appearance and was oriented to person, place, and time. He complained of memory problems, but according to the examiner, the memory trouble was unrelated to any psychiatric diagnosis. There was no evidence of obsessive or ritualistic behaviors. Speech was normal. There were no panic attacks. There was no evidence of impaired impulse control. The examiner rendered no Axis I diagnosis. The diagnosis of anxiety disorder not otherwise specified was in full remission. The examiner assigned a GAF score of 75 due to transient symptoms of anxiety that were not especially distressing and resulted only in minimal functional impact. A September 2009 VA progress note reflects a diagnosis of anxiety disorder not otherwise specified in full remission as well as a GAF score of 70. Similarly, in September and March 2010, the diagnosis was of anxiety disorder not otherwise specified in full remission. The GAF score was 70. In April 2010, the pertinent psychiatric diagnosis was anxiety disorder not otherwise specified in full remission. The GAF score was 60. The Board notes that at that time, recurrent major depressive disorder and PTSD in partial remission were diagnosed. In August 2010, the Veteran's anxiety disorder not otherwise specified was still in full remission. He was also suffering from recurrent major depressive disorder and PTSD in partial remission. A GAF score of 50 was assigned pursuant to the Veteran's complaints of fatigue and poor response to a change in medication. In September 2010, the Veteran's anxiety disorder not otherwise specified was still in full remission. The GAF score was now 60 after the Veteran switched back to his former medication regimen. In November 2010, the Veteran's anxiety disorder not otherwise specified was still in full remission. The GAF score was 60. In June 2011, there was anxiety disorder not otherwise specified in full remission. The GAF score was 65. The Veteran's recurrent major depressive disorder was in partial remission, and his PTSD was in partial remission. There was also a diagnosis of cognitive disorder not otherwise specified. In a March 2011 written statement, the Veteran's wife indicated that the Veteran had anxiety due to viral encephalitis in service. She described, however, only symptoms of depression such as a lack of energy and motivation. In July 2011, the Veteran underwent a VA mental disorders examination. The Veteran was retired. When asked about concerns regarding working, the Veteran indicated that he was forgetful and that he tired too easily. The Veteran asserted that he felt depressed and tired all the time. As to anxiety, the Veteran described a very mild level of symptoms. Objectively, there was no sign of thought or communication impairment. There was no evidence of delusions or hallucinations. The Veteran had no active plan for self harm but had some passive suicidal thinking. The Veteran denied any current homicidality. The Veteran was able to maintain personal hygiene. He maintained his garden and visited his family frequently. The Veteran was afraid to go out at night because he could get shot, a symptom he attributed to PTSD. Indeed, he attributed almost all of his anxiety symptoms to PTSD. He had daily thoughts of being shot. He thought about service on a daily basis. Regarding anxiety symptoms not attributable to PTSD, the Veteran reported tension but denied excessive worry and panic attacks. The Veteran had no obsessive or ritualistic behaviors. Speech was normal. He denied impaired impulse control. He complained of memory loss. The examiner diagnosed recurrent major depressive disorder, PTSD by history, anxiety disorder not otherwise specified, and cognitive disorder not otherwise specified by history. The examiner opined that the Veteran had some overlapping symptoms such as impaired concentration and sleep/fatigue, but, that specifically the symptoms of the anxiety disorder were transient and mild. The Veteran's GAF score attributable to anxiety disorder not otherwise specified was between 65 and 70. On August 2011 VA mental disorders examination, the examiner indicated that symptoms attributable to anxiety disorder not otherwise specified were very mild. The Veteran denied excess worry and panic attacks. He did report difficulty relaxing, difficulty with concentration, and fatigue. The Veteran's GAF score was 60. The examiner opined that several of the Veteran's symptoms were mutlifactorial including his prominent concern, which was daytime sleepiness and fatigue, which was as likely as not due to a combination of physical and psychiatric causes. The examiner indicated that the Veteran had 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. The examiner added that the Veteran's anxiety disorder was very mild. The Veteran reported a good relationship with his wife, son, and grandchildren. The examiner noted symptoms such as depressed mood, anxiety, chronic sleep impairment, mild memory loss to include for names, directions, and recent events, and disturbances of motivation and mood. The examiner remarked that the Veteran was not unemployable solely due to his anxiety disorder. Discussion The appeal period stretches back more than a decade. In the early years, there was a question as to whether the Veteran actually suffered from an anxiety disorder. On VA examinations in November 2000 and October 2001, no Axis I diagnoses were rendered. On December 2000 neuropsychiatric examination, the examiner did observe some anxiety. The record reflects some diagnoses of anxiety along with major depressive disorder and either PTSD or possible PTSD. Regarding anxiety, from May 2003 to September 2007, regular clinical visits yielded only diagnoses of a history of anxiety disorder not otherwise specified. During the period before September 2007, which is discussed below, some symptoms associated with a 50 percent evaluation were present. For example, there was evidence of difficulty understanding complex commands, impaired memory, and disturbances of motivation and mood. To the extent that these symptoms were not attributed to other disorders such as major depressive disorder and a cognitive disorder, the Board must consider them in connection with the anxiety disorder at issue. Mittleider, supra. The Board also notes GAF scores ranging from 40 to 75 reflecting serious to transient symptoms. However, the Board observes that very low GAF scores of 40 were assigned at times when the Veteran suffered from psychiatric disorders different from the service-connected anxiety disorder and at times when he had diagnoses of anxiety disorder by history. As such, the Board finds that at no time did a GAF score of 40 pertain to the service-connected anxiety disorder. During the majority of the timeframe before September 2007, the Veteran's GAF scores hovered between 50 and 60, reflective of moderate to serious symptoms. However due to the absence of a current diagnosis of anxiety during most of that time, the Board cannot conclude that the criteria for a 50 percent evaluation for the service-connected anxiety disorder is warranted. Indeed, the July 2004 VA examiner explained that the GAF score of 51 assigned was based on the Veteran's low motivation and mood that resulted from his depressive disorder as opposed to an anxiety disorder. The Board must take into account all of the Veteran's symptomatology in determining the appropriate evaluation to assign. See 38 C.F.R. § 4.126. Here, the Board acknowledges that before September 2007, the record reflects symptoms such as memory deficits, difficulty with complexity, and disturbances of motivation and mood that have not always been explicitly attributed to the Veteran's other mental disorders such as major depressive disorder and cognitive disorder. On balance, however, the Veteran's disability picture more closely approximates that encompassed by the criteria pertinent to a 30 percent evaluation for a psychiatric disorder. Before September 2007, the Veteran lacked the bulk of the symptoms associated with a 50 percent evaluation such as flattened affect, abnormal speech, panic attacks, impaired judgment, impaired impulse control, or impaired social capabilities. Indeed, the record clearly reflects strong family and social ties. The lack of conforming symptomatology along with the lack of a definitive current diagnosis of anxiety during most of this period militates against the assignment of a 50 percent rating before September 2007. 38 C.F.R. § 4.130, Diagnostic Code 9400. Again, the Board recognizes the GAF scores assigned. However, the numerous findings of only a "history of anxiety" and the several indications of a lack of Axis I diagnosis prevent the Board from finding that the criteria for a 50 percent evaluation for the service-connected anxiety disorder are met before September 2007. In more recent years, the Veteran's service-connected anxiety disorder has been characterized as nonexistent or very mild. From September 2007, VA progress notes indicate a diagnosis of anxiety disorder in full remission. More comprehensive VA mental disorders examinations conducted after September 2007 indicate no more than very mild anxiety symptoms, and GAF scores other than those attributed specifically to conditions other than anxiety ranged from 60 to 75 indicative of no more than moderate to mild and transient symptoms. From at least September 2007, the Veteran either denied anxiety symptoms such as excessive worry or endorsed only mild symptomatology. Furthermore, the evidence is unequivocal regarding the absence of flattened affect, abnormal speech, panic attacks, impaired judgment, impaired abstract thinking, or difficulty establishing effective relationships. While there is some difficulty in understanding complex commands and memory impairment, these have been attributed to the Veteran's cognitive impairment and not to the service-connected anxiety disorder. Furthermore, disturbance of motivation and mood has been attributed to the currently diagnosed major depressive disorder. The Veteran's wife, who is presumably well aware of the Veteran's emotional state did not describe any specific symptoms of anxiety in her March 2011 written statement. The July 2011 VA examiner opined that the symptoms specifically due to the anxiety disorder were transient or mild. Pursuant to the foregoing evidence, the Board finds that the Veteran's service-connected anxiety disorder has not met the criteria for a 50 percent evaluation at any time during the appeal period. As apparent from a close review of the record, the Veteran's anxiety symptomatology has improved with the passage of time. However, even before consistent findings of remission were made, the Veteran's anxiety did not rise to the level necessary for a 50 percent evaluation. Namely, even before 2007, the Veteran's anxiety symptoms were described as vague, and malingering was suspected. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. The Court held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total disability rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). The Board finds that a claim for a TDIU is not raised by the record. Specifically, the evidence of record fails to show that the Veteran is unemployable due to the service-connected anxiety disorder. While the Veteran has stated that nerves prevented him from working, he also indicated that his impaired memory and physical limitations precluded employment. The objective medical evidence endorses the latter. The Board credits the disinterested observations of VA medical professionals. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). Therefore, because no unemployability due to the disability at issue is shown, the Board finds that no further consideration of a TDIU is warranted. Rice, supra. The Board has considered whether an extraschedular evaluation would have been warranted for anxiety reaction, secondary to intracranial infection, viral encephalitis. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's service-connected psychiatric disorder are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 9400, specifically provide for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's anxiety reaction, secondary to intracranial infection, viral encephalitis, has been characterized as no more than mild. There has been some irritability and worry as well as memory deficits and some difficulty with complex commands. These symptoms are either explicitly part of the schedular rating criteria or are "like or similar to" those symptoms and impairment explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The levels of occupational and social impairment are also explicitly part of the schedular rating criteria. In addition, the GAF scores are incorporated as part of the schedular rating criteria, as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with an acquired psychiatric disorder, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An evaluation in excess of 30 percent for service-connected anxiety reaction, secondary to intracranial infection, viral encephalitis, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs