Citation Nr: 1308929 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 09-02 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for a psychiatric disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Kenneth Carpenter, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active Air Force service from November 1972 to November 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from April 2007 and September 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in January 2011 and accepted such hearing in lieu of an in-person hearing before a Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. This case was previously before the Board in May 2011, at which time it was remanded for additional development. The case has now been returned to the Board for further appellate action. FINDINGS OF FACT 1. The occupational and social impairment from the Veteran's psychiatric disability has more nearly approximated reduced reliability and productivity for the entire period on appeal. 2. The combined rating for the Veteran's service-connected disabilities is 70 percent. 3. The Veteran is unable to obtain and maintain any form of substantially gainful employment due solely to the effects of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for a psychiatric disability have been not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9433 (2012). 2. The criteria for a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that prior to the initial adjudication of the claims, the Veteran was mailed letters in August 2006 and February 2008 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The August 2006 and February 2008 letters also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claims. The Board also finds the Veteran has been afforded adequate assistance in response to his claims. The Veteran's service treatment records (STRs) are on file, VA Medical Center and private treatment notes have been obtained, and the Veteran has been afforded appropriate VA examinations. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. Legal Criteria Disability Rating Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). 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. 38 C.F.R. § 4.7. The Veteran's psychiatric disability, currently identified as dysthymic disorder and depression is rated under 38 C.F.R. § 4.130, Diagnostic Code 9433. This diagnostic code utilizes the general rating formula for mental disorders, which provides that a 50 percent disability rating is warranted for a mental disorder when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing effective work and social relationships. A 70 percent disability rating is warranted for a mental disorder when there is 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. 38 C.F.R. § 4.130, Diagnostic Code 9433. The maximum schedular rating of 100 percent is warranted for a mental disorder when there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9433. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. "Substantially gainful employment" is that employment that "is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment will not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A claim for a TDIU presupposes that the rating for the service-connected disabilities is less than 100 percent, and only asks for a TDIU because of "subjective" factors that the "objective" rating does not consider. Vittese v. Brown, 7 Vet. App. 31, 34-35 (1994). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Evaluation of Psychiatric Disability In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. A review of the record shows that the Veteran has received medication management and mental health counseling at the VA Medical Center since at least May 2003. A review of the VA Medical Center mental health treatment notes of record shows that during the pendency of this appeal, the Veteran has generally reported symptoms of depression, anhedonia, decreased appetite, difficulty sleeping, isolation, avoidance, panic attacks, difficulty in crowds, memory problems, and anxiety. During this period, the Veteran has generally been found to have a depressed mood and restricted affect. He has, at times, been described as tearful when describing is symptoms. The Veteran has been maintained on various medications to control his mental health symptoms during the pendency of this appeal. A review of the record shows that the Veteran has also received private mental health treatment. Of record is a July 2006 private psychiatric evaluation report. At that time, the Veteran reported that he experienced a lot of anxiety and that it was very difficult, if not impossible, for him to be around people or groups of people. The Veteran reported that he preferred his own company, that he startled very easily, and that he was very jumpy. He reported that when he went out to a restaurant, he would always sit facing the door so that he could see people come in. The Veteran reported that he had difficulty sleeping as a result of frequent and intense nightmares regarding his traumatic experiences while serving in the Republic of Vietnam. He reported that at times he would see things on television or smell things that would trigger vivid flashbacks of his time in the Republic of Vietnam. The Veteran reported a decreased interest in activities that he used to enjoy and a decreased energy level. The Veteran reported that he had poor concentration and his short-term memory was impaired. The Veteran reported that he experienced unprovoked irritability with periods of violence and that he experienced difficulty adapting to stressful situations. Upon mental status examination, the Veteran was found to be in moderate distress at the time of his examination. He was cooperative and a generally reasonable rapport was established. The Veteran's hygiene and grooming appeared fair. There were no bizarre physical or expressive mannerisms noted. The Veteran was noted to make very little eye contact and the examiner noted that the Veteran appeared to struggle greatly with several of the questions and mathematical equations during the examination. The Veteran's responses were noted to be slow and he often responded with great difficulty. The Veteran appeared alert and oriented to person, place, date, and situation. The Veteran's speech was at a normal rate and volume and was without pressure, separation, or blocking. However, the Veteran's speech was intermittently illogical, obscure, or irrelevant. The Veteran was noted to experience near continuous panic and depression which affected his ability to function independently. The Veteran's flow of thought seemed logical and goal-directed. The Veteran denied hallucinations in any modality. There was no evidence of prominent delusions or fixed delusional systems. There was no cyclical pattern to the Veteran's emotional disturbance. There was no pressure or mania. The Veteran had suicidal ideations, but there was no homicidal ideation or intent present at the time of examination. Cognitive function was adequate and judgment appeared acceptable. The Veteran was noted to have obsessional rituals that interfered with his routine activities. The examiner diagnosed posttraumatic stress disorder (PTSD) that was severe in nature. The examiner assigned a GAF score of 40. The examiner noted that even with proper treatment, it was unlikely that the Veteran would improve over the next 12 month period. The examiner noted that the Veteran was unable to work as a result of the depression and anxiety related to his service-connected injuries of the feet and knees. At this juncture, the Board notes that GAF scores are based on 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 FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. The GAF score is based on all of the Veteran's psychiatric impairments. A GAF score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant), or a 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). 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). A GAF score of 51-60 represents 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 coworkers). A GAF score of 61-70 represents 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. While particular GAF scores are not contained in the VA schedule of ratings for mental disorders, 38 C.F.R. § 4.130, they are a useful tool in assessing a Veteran's disability and assigning disability evaluations. However, they are just one of many factors considered when determining an evaluation. In other 2006 private mental health assessments and treatment records, the Veteran was noted to have significant impairment in social, occupational, family, judgment, and mood. The examiner noted that there was 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; memory impairment; impaired judgment; impaired abstract thinking; disturbances in motivation and mood; and, difficulty in establishing and maintaining effective work and social relationships. The examiner assigned a GAF score of 55 and noted that there was major impairment in work, family relations, judgment, thinking, and mood. In April 2007, the Veteran was afforded a VA examination. At that time, the Veteran reported that his reduced ability to be able to engage in work as a result of his service-connected disabilities had been very stressful for him. The Veteran reported that he had not been able to take care of his family as he would like and this resulted in him feeling depressed. He reported that he felt down and had decreased energy and motivation. He reported that at times he would feel sad and become tearful. The Veteran reported that he thought about suicide, but that he did not have a plan to commit such. He reported that his depression had been really bad in the past few years as it had become increasingly difficult for him to get things done at work. The Veteran reported that he had been married for 27 years and that he had three grown children. He reported that he and his wife ran an automotive shop together and that he took care of the repair work while his wife took care of the administrative work. He reported that he helped around the house when he could, but that he could not stand very much as a result of the limitations caused by his service-connected disabilities. The Veteran reported that he did not like to engage in social activities or have any social interaction outside the home. The Veteran reported that he experienced difficulty sleeping, and that he would only get about two to three hours of sleep per night even with the aid of medication. Upon mental status examination, the Veteran was found to be casually and appropriately dressed. He was oriented x4, but was not sure of the date. The Veteran's mood was down and his general appearance and facial expressions were those of a depressed person. The Veteran's voice level and tone were also down. The Veteran's short-term memory was impaired and he reported experiencing difficulties concentrating. There was no evidence of a thought disorder in the sense of derailment, tangentiality, or circumlocution. There was no evidence of hallucinations or delusions. The examiner noted that the Veteran's reported sleep problems were seen to be partially related to his depression. The Veteran's eye contact was noted to be limited throughout the examination. The examiner noted that, over all, the Veteran did not have difficulty with cognitive function or communication skills that would impact his social or occupational functioning. The Veteran did not engage in socially inappropriate behaviors and he was able to carry out his basic activities of daily living, to include personal hygiene. The examiner diagnosed dysthymic disorder and assigned a Global Assessment of Functioning scale (GAF) score of 54. The examiner noted that the Veteran exhibited symptoms of depression that impaired his ability to maintain relationships. The examiner also noted that the Veteran's dislike of engaging in social activities caused stress in his relationship with his wife. In terms of the Veteran's work, the examiner noted that his depression reduced his effectiveness by making it difficult for him to concentrate, something that was noted to be noticed in the current examination, especially as it pertained to the Veteran's short-term memory. Overall, the examiner noted that the Veteran's depression caused a considerable degree of dysfunction in terms of his social and occupational capacities. The examiner found that the Veteran's depression was most likely caused by his service-connected foot disabilities and resulted in difficulty with work functioning. In January 2010, the Veteran was afforded another VA psychiatric examination. At that time, the Veteran reported that he experienced significant levels of anhedonia, diminished appetite, sleep disturbances, anxiety attacks, and impaired memory for at least the last year. He reported that his symptoms had continued to increase in severity over time. The Veteran reported that he had to force himself to eat. He reported that he experienced a combination of insomnia and early-awakening. He reported that he was frequently "on-guard" during the night and that he was easily startled. He reported that he had nightmares approximately twice a week and that they centered on his experiences while serving in the Republic of Vietnam. The Veteran reported that he had lost interest in many of his favorite activities, including auto restoration. He also reported a loss of libidinal energy and reported that he was tired all the time. The Veteran reported that he usually experienced one or two panic attacks per week, but that in the last week he had experienced one or two panic attacks per day. He reported that during panic attacks he would become flustered and experience tachycardia, shortness of breath, and nausea. The Veteran reported that he was often forgetful about recent conversations and names and that he would forget "petty details" such as where he placed his coffee cup. The Veteran reported that his relationship with his wife had become worse in the past year and that while he was still living with his wife, they were distant. He reported that for the past 12 years, he and his wife had slept in separate bedrooms. The Veteran reported that he had a good relationship with his children. The Veteran reported that he had limited friendships and that those friends he did have, were mostly Veterans. He reported that other than attending a monthly meeting for local veterans, he did not get out much. He reported that he did not attend church and that he would become extremely anxious in large groups. The Veteran reported that he was unable to work as result of both his physical and mental problems. He reported that he closed his business because of difficulties with forgetfulness and low energy. The Veteran denied going out much and reported that he would rather spend his time reading. The Veteran reported that he was able to dress, bathe, and feed himself without assistance and that he tended to minor repairs around his home without assistance. He reported that he assisted his wife with larger chores, such as caring for livestock and cleaning the house. He reported that he shared the handling of the finances with his wife. However, the examiner noted that written statements to the Social Security Administration (SSA) in 2008 from both the Veteran and his wife indicated that the Veteran was unable to use a checkbook, pay bills, or manage money. The statements also indicated that the Veteran's wife handled all the family's finances and performed all of the household chores. The statements also indicated that the Veteran was unable to dress himself without reminders. Upon mental status examination, the Veteran was found to be dressed appropriately and his overall hygiene and grooming was adequate. The Veteran's posture was slouched. The Veteran was alert and appeared unaffected by drug/alcohol intoxication. He was oriented to four spheres. The Veteran's speech was soft, though the rate of speech was adequate. Prosody was unremarkable and the Veteran's train of thought was linear and goal-directed. Formal thinking was grossly intact and there were no manifestations of hallucinations, delusions, or obsessive ideations noted. The Veteran's insight and judgment were adequate. His memory for distal events was intact and there was internal consistency to verbal life history. The Veteran's memory for recent events was lagging. The Veteran's cognition was concrete and his concentration was adequate. The Veteran's general mood was dejected and his affect was congruent with content. A combination of withdrawal and passivity were indicated as a preferred means of coping with frustration. The Veteran reported suicidal thoughts in the recent past without plan or intent and indicated that he did not have current suicidal or homicidal ideations. The examiner diagnosed dysthymic disorder with a secondary diagnosis of mood disorder. The examiner noted that his symptoms consisted of disturbances in appetite, impaired sleep, and anhedonia. The examiner further noted that the Veteran presented with strained relationships and curtailed recreational activities. The examiner opined that it was undisputable that the Veteran was unable to sustain gainful employment as a result of his symptoms. The examiner assigned a GAF score of 50. In July 2011, the Veteran was afforded another VA examination. At that time, the Veteran reported that he had been doing "about the same" since his last examination. He reported that he continued to experience difficulty sleeping and that even though the medication helped with his insomnia, he still only slept for approximately four hours per night. The Veteran reported that he stayed to himself most of the time. The Veteran reported feelings of depression that would come and go depending on the day. He reported that he experienced difficulty with concentration and short-term memory. He reported that he had trouble remembering names, phone numbers, and addresses and that he had difficulty staying on task because he would lose interest in what he was doing. The Veteran also reported symptoms of anxiety. The Veteran reported that he was still married to his wife of 30 years and that they got along well. However, he reported that she was busy with her own activities and that they did "not bother each other." He reported that he had a good relationship with his children and grandchildren, but was unable to remember the ages of two or three of the children. The Veteran reported that he did have friends and knew a lot of people, but that he did not spend time with anyone. He reported that he did not accompany his wife to church because he did not want to be around the crowd. He reported that he still had not worked since his retirement and reported that he retired for a combination of reasons, to include his health and the economy. He reported that when he had worked, he had experienced difficulty in dealing with employees due to their unreliability. The Veteran reported that he spent his time taking care of his goats, chickens, and his dog. He reported that he was unable to do a lot of physical labor around the house because of his physical disabilities. He reported that he did brush his dog and mow the lawn when needed. The Veteran reported that aside from taking care of the animals, he read a lot because it helped him settle down. He reported that he was able to maintain his personal hygiene and activities of daily living. Upon mental status examination, the Veteran was found to be appropriately dressed with average grooming and personal hygiene. He was oriented x4. His affect was restricted and his mood appeared depressed. The Veteran evidenced no problems with long-term memory, but he was unable to remember the ages of a few of his 10 grandchildren. There were no inappropriate behaviors evident and the Veteran did not report any obsessive or compulsive rituals or panic attacks. There was no sign of a thought disorder in terms of derailment, tangentiality, or circumlocution. There was no evidence of delusions or hallucinations. There were no suicidal or homicidal ideations or intent. There was no evidence of problems with thought processes or communication. The examiner diagnosed major depression and assigned a GAF score of 50. The examiner noted that the Veteran had experienced a depressed mood everyday for at least the past two years and that he experienced symptoms of depression to include loss of interest in activities, variable appetite, insomnia, and problems with concentration. The examiner noted that the Veteran continued to experience moderate impairment in social and occupational functioning. In this regard, the examiner noted that the Veteran was socially isolated and he avoided crowds. The examiner opined that the Veteran's depression did not render him unable to maintain gainful employment. In this regard, the examiner noted that the Veteran had owned and operated his own garage for 34 years before retiring as a result of physical disabilities and the state of the economy. He did not express any difficulty dealing with customers and noted that he had trouble dealing with his employees because they were unreliable. The examiner noted that the Veteran's psychosocial functioning had been in a pattern of decline for the past 10 years. The examiner noted that the Veteran's social relationships were limited and estranged and the examiner suspected that anyone who came in close proximity to the Veteran would find him rigid and irritable. The examiner noted that the Veteran's vocational pursuits were virtually extinct and his leisure activities had been curtailed. The examiner noted that this did not appear to be a transient pattern, but rather a chronic and ongoing pattern that was becoming more pronounced as time went on. The examiner further noted that a large degree in the decline in psychosocial functioning appeared to be more related to mental health issues than physical limitations. The Board finds that the Veteran is not entitled to a disability rating in excess of 50 percent for his psychiatric disability. There is no indication from the evidence of record that the Veteran has experienced occupational and social impairment with deficiencies in most areas. In this regard, the Board notes that the Veteran was able to work for 34 years as a mechanic and own his own business with his wife prior to retiring due to both health related concerns and the economy. Additionally, the Veteran has reported that he maintains a good relationship with his wife, his children, and his grandchildren. He has reported that while he does not like to accompany his wife to church because of the crowds, he did have a lot of friends and knew a lot of people. Additionally, the Veteran has not shown difficulties in judgment and thinking, he does not have suicidal or homicidal ideations with plan or intent, he does not exhibit obsessional rituals which interfere with routine activities, and his speech is normal. While the Veteran and his spouse reported to SSA that he was unable to maintain his personal hygiene without being reminded, there is no objective evidence of this upon VA examination as the Veteran has always been reported to be dressed and groomed appropriately. There is no indication from the record that the Veteran is unable to maintain his personal hygiene. The Board acknowledges the fact that at his July 2006 private psychiatric evaluation, the Veteran was noted to have rather severe mental health symptoms and was assigned a GAF of 40. However, a review of that evaluation report shows that these findings are inconsistent with the symptoms described. In this regard, the Veteran was alert and oriented, his speech was of normal rate and rhythm, he did not have hallucinations or delusions, and there was no pressure or mania present. While the Veteran did report suicidal thoughts, he was noted to lack intent and there were no homicidal ideations present. The Veteran's judgment was noted to be acceptable and while it was noted that the Veteran had obsessional rituals which interfered with his routine activities, these were not elaborated upon or described in any detail. Overall the symptoms described in the evaluation report are more consistent with moderate impairment than the severe impairment noted by the examiner. Additionally, the Board notes that the January 2010 VA examiner opined that it was undisputable that the Veteran was unable to sustain gainful employment as a result of his mental health symptoms. However, this finding is not supported by the objective findings in the mental status examination. Further, while the July 2011 VA examiner noted that the Veteran's psychosocial functioning had been in a pattern of decline for the past 10 years, the symptoms reported in the examination report are more indicative of moderate impairment as they do not reveal impairment in judgment, speech, thought processes, ability to maintain personal hygiene, suicidal or homicidal ideations, obsessional rituals, or impaired impulse control. Therefore, the Board finds that when the Veteran's disability picture is considered as a whole, his symptoms more nearly approximate those for the 50 percent disability rating for the entire period on appeal. Therefore, a disability rating of 70 percent is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9433. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the manifestations of the disability are contemplated by the schedular criteria. The Board notes that the Veteran has reported that he is unable to obtain and maintain gainful employment as a result of his various service-connected disabilities. However, the issue of entitlement to a TDIU is being separately adjudicated. In sum, there is no indication that the average impairment from the disability would be in excess of that contemplated by the increased disability ratings granted herein. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. TDIU The Veteran has reported that he had been forced to close his business because he could no longer handle working as a result of his service-connected disabilities. Specifically, he has reported that he experiences extreme pain as a result of his service-connected foot disabilities and he feels a lack of motivation and anhedonia as a result of his service-connected psychiatric disability. Service connection is in effect for the following disabilities: a psychiatric disability, rated as 50 percent disabling; fracture of the distal end of the left third metatarsal with osteotomy, rated as 30 percent disabling; right fifth metatarsal fracture with arthritis, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss disability, rated as noncompensable. The Veteran's combined disability rating, to include bilateral factor, is 70 percent. Therefore, the Veteran meets the schedular criteria for a TDIU. 38 C.F.R. § 4.16 (a). In his February 2008 application for TDIU, the Veteran reported that he was a college graduate. He reported that he had been self-employed since 1982 as a mechanic. There is no indication from the record that the Veteran spent any length of time working in any field other than automotive repair and maintenance. The Veteran reported that he had become too disabled to work in December 2007 and that he had stopped working as a result of his various service-connected disabilities, to include his bilateral foot disabilities and his psychiatric disability. In July 2011, the Veteran was afforded a VA general medical examination. At that time, the examiner noted that the Veteran would be limited in those employment related activities to include prolonged standing greater than 15 minutes, prolonged walking more than 50 yards, squatting, and climbing as a result of his service-connected foot disabilities. As discussed in detail above, the Veteran was also afforded a VA psychiatric examination in July 2011. At that time, the Veteran reported that he closed his business as a result of both the economy and health related concerns. The VA examiner clearly noted that the Veteran's vocational pursuits were virtually extinct and that this appeared to be a chronic and ongoing pattern that was becoming more pronounced as time went on. Further, the examiner noted that anyone who came in close proximity to the Veteran would likely find him to be rigid and irritable. The Board finds that this trait does not lend itself to maintaining effective working relationships. In light of the Veteran's occupational background and the functional limitations described in his July 2011 VA general medical examination and his various VA psychiatric examinations of record, the Board finds that the Veteran's various service-connected disabilities are sufficient to render him unable to obtain and maintain any form of substantially gainful employment in accordance with his occupational background and education level. Thus, entitlement to a TDIU is warranted. ORDER Entitlement to a disability rating in excess of 50 percent for a psychiatric disability is denied. Entitlement to a TDIU is granted, subject to the criteria governing the award of monetary benefits. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs