Citation Nr: 1310220 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 06-09 453 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for an anxiety disorder prior to July 1, 2008. 2. Entitlement to an initial rating in excess of 10 percent for an anxiety disorder from July 1, 2008, to July 10, 2012. 3. Entitlement to an initial rating in excess of 50 percent for an anxiety disorder since July 10, 2012. 4. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from January to April 1989, October 1989 to September 1996, and from March 1999 to May 2002. This matter in on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. During the pendency of the appeal, the Veteran moved to Florida and jurisdiction over her case was transferred to the St. Petersburg RO. She subsequently moved to Oklahoma and the Muskogee RO assumed jurisdiction. The Board of Veterans' Appeals (Board) remanded the claims for further development in November 2008 and February 2011. As it relates to the issue of an increased rating for an anxiety disorder, the Board has listed the issues on the title page based upon the actions of the ROs and the Appeals Management Center (AMC) in various rating determinations throughout the course of the appeal. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's anxiety disorder has been manifested by nightmares, intrusive memories, difficulty concentrating, irritability, social avoidance, and trouble sleeping; but not an inability to establish and maintain effective relationships. 2. The Veteran's service-connected disabilities alone are not of such nature and severity as to prevent her from securing or following any substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 50 percent rating for an anxiety disorder, but no more, have been met throughout the course of the appeal. 38 U.S.C.A. §§ 1155, 5107(a), 5107A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.130, Diagnostic Code (DC) 9413 (2012). 2. The criteria for a total compensation rating based on individual unemployability have not been met. 38 U.S.C.A. §§ 1155, 5107(a), 5107A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Where there is a question as to which of two evaluations shall be applied, the higher rating 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. In Fenderson, the Court noted an important distinction between an appeal involving a veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection to consider the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In view of the number of atypical instances 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, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Anxiety disorder is evaluated under DC 9413, which provides a 10 percent rating for occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or, symptoms controlled by medication. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is to be assigned for 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. A 70 percent rating is 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 worklike setting); inability to establish and maintain effective relationships. The rating 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 rating is assigned for 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. The phrase "such symptoms as" which indicates 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. Accordingly, the Board is not required to find the presence of all, most, or even some, of the enumerated symptoms for any particular rating. Rather, the list of symptoms merely provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. The Board must consider all symptoms of a veteran's condition which affect the level of occupational and social impairment. If the evidence demonstrates that a claimant 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 v. Principi, 16 Vet. App. 436, 441-443 (2002). The Global Assessment of Function (GAF) is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, FOURTH ED, American Psychiatric Association (1994) (DSM-IV), p.32; 38 C.F.R. §§ 4.125(a), 4.130 (2012). GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns, (e.g., an occasional argument with family members). Scores ranging between 71 to 80 reflect symptoms that are transient and expectable reactions by psychosocial stressors (e.g., difficulty concentrating after family argument, no more than slight impairment in social, occupational, or school functioning). Scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning "pretty well," and has some meaningful interpersonal relationships. Scores that range from 51 to 60 are reflective of 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). Scores that range from 41 to 50 are reflective of 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 between 31 and 40 contemplates some impairment in reality testing or communication (e.g., speech 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). See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). In conjunction with her claim for service connection for a psychiatric disorder, the Veteran was afforded a pre-discharge VA examination in November 2001. She reported that she did not sleep well and that she felt tired, anxious, and stressed, particularly at her job. She worried about her personal safety every day. She had no psychotic symptoms. There were no remissions. She stated that she had called in six to ten times in the past six months because she had been anxious and stressed and unable to come to work. As to social impairment, she reported that she did not have a life as it was pretty much spent at work and then she came home to be with her 15 year old daughter and family. Mental status examination revealed that she was nicely dressed and groomed. The Veteran was polite and cooperative and in no obvious distress. There was no pressure or slurring of speech and her mood was mildly dysphoric. Her affect was pleasant and her thinking was organized and goal directed. There was no impairment in thought process or communication. There was no inappropriate behavior and she did not have suicidal or homicidal ideations. There was no impairment of memory and no obsessive or ritualistic behavior. Rate and flow of speech were normal. There were no panic symptoms and she was not depressed or particularly anxious at the time of the examination. There was also no impairment of impulse control but sleep was chronically impaired. The examiner diagnosed an anxiety disorder and assigned a GAF score of 59. At the time of a January 2003 Social Security Administration psychiatric examination, the Veteran reported having anxiety and depression. She stated that she used to work in law enforcement but had stopped working because of trauma. She noted that she had been working under extreme pressure in dangerous environments. She reported that her life was threatened several times by inmates. She noted feeling mildly depressed, having impaired sleep on occasion, and fair energy. There were no guilt feelings, no helplessness, worthlessness, or hopelessness, and no suicidal intention or plan. She had no concentration or memory problems. Mental status revealed the Veteran was fairly groomed, cooperative, pleasant, and non-hostile. Eye contact was fair and there was no severe psychomotor retardation or agitation. As to thought content, she was preoccupied with her experience in the military prison but she was logical and coherent with no severe difficulty in thinking or concentrating. Affect was mildly depressed and mildly anxious. There was no evidence of severe anxiety or depression and no suicidal or homicidal plans or intentions. There were no perceptual disturbances, no hallucinations, no delusions, and no paranoid ideations. Impulse control was fair and insight was adequate. Attention span and concentration were mildly impaired and the Veteran was able to do serial 3's. She was oriented to month, date, year, and situation. Short term and long term memory were mildly impaired. Object recall was 3/3 after three and five minutes. There were no problems noted with proverb, similarity, judgment, calculation, or goals testing. The examiner diagnosed an adjustment disorder with mixed emotional features including anxiety, which was mild in degree. The examiner indicated that there was no evidence of severe depression or anxiety and that reasoning and comprehension remained intact. There were no bizarre delusions, psychosis, hallucinations, or manic symptoms and the Veteran was well oriented to time, place, and purpose. She also did not have severe difficulties with social functioning and there were no severe limitations due to emotional impairment. In July 2003, the Veteran sustained a traumatic brain injury (TBI) when struck by a car. Bye the time of a January 2004 VA examination, she was noted to have been involved in a hit and run car accident in 2003, where she sustained an injury to her head and lost consciousness for three hours. She indicated that she was seeking an increase in compensation for anxiety and mental trauma. She reported that she was taking classes at a local college and was earning A's and B's in her course work. She noted having three close friends and being active in church. She reported staying active for her daughter. She went to her daughter's concerts, took her to the movies, and performed other activities with her daughter as much as she was able to. She described her current relationship with family members as distant. It was noted that her pre-existing anxiety condition had been aggravated by the accident. Mental status examination revealed she was alert and oriented times three. She was cooperative and pleasant. She described her mood as calm and her affect was pleasant. Eye contact was direct and speech was normal in rate and volume. Thought process was coherent, relevant, and goal directed. Suicidal and homicidal ideation was denied. The Veteran reported having a phobia about cars and becoming anxious when she saw others walking around cars. She denied having any thought insertion, hallucinations, thought broadcasting, thought withdrawal or ideas of reference. Immediate recall was intact. She could recall 1/3 words after five minutes. Concentration was within normal limits. Serial sevens had two errors. Simple arithmetic computations were good. Abstracting and analytical ability was also good. Intellectual functioning was in the average range and insight and judgment were good. There was no obsessive or ritualistic behavior. Depression and anxiety were noted to be of mild to moderate severity. The examiner diagnosed an anxiety disorder and assigned GAF score of 51. The examiner indicated that the Veteran's anxiety disorder had clearly been aggravated by the accident. The examiner noted that it was unlikely that the Veteran could sustain the mental and physical energy to maintain gainful employment as she was still recovering from the accident. She appeared determined to overcome her circumstances and was noted to be attending classes two days per week and maintaining above average grade levels. The Veteran maintained a good social support system and met the responsibilities as a parent. At the time of an April 2004 VA mental health visit, the Veteran reported having difficulty following the September 2003 accident. She indicated that she avoided going to the site of the accident, avoided walking in front of cars, and avoided conversations about the accident. She stated that it was more difficult to make relationships after the accident and she was more cautious about people. Although improved, she had dropped many social activities due to her anxiety. She was bothered by loud noises, particularly sirens, and she complained of irritability. She noted having dysphoria, which began when she was working as a prison guard. Mental status examination revealed the Veteran was well groomed and casually dressed with normal activity. She was cooperative and had good eye contact. Flow of thought was logical and goal oriented. She was focused on distress caused by her trauma and the need for treatment. Perception was within normal limits. Her mood was anxious and stressed but her affect was appropriate to content. Cognition was within normal limits, insight was good, and judgment was fair. The examiner rendered a diagnosis of PTSD and assigned a GAF score of 61. The examiner indicated that the Veteran's anxiety began as a corrections officer and significantly worsened following the motor vehicle accident. The Veteran was afforded an additional VA examination in December 2005. At the time of the examination, she was again noted to have been in automobile accident and to have sustained a head injury where she had lost consciousness for 3 hours. She reported having good and bad days. She indicated that she had difficulty sitting for more than 30 minutes. Attention span was found to be within normal limits. Her speech was normal in rate, volume, and prosody. Eye contact was poor and affect was constricted. Thought process was organized and goal directed. She denied homicidal/suicidal ideations. She reported a number of significant physical problems from the accident. She had difficulty concentrating and recalling directions to places. The examiner rendered a diagnosis of an anxiety disorder, and assigned a GAF score of 50. The examiner stated the Veteran had anxiety symptoms prior to the motor vehicle accident and indicated that she was experiencing significant anxiety symptoms. At the time of an August 2007 VA examination, the Veteran denied experiencing significant depression and estimated that she suffered from significant anxiety "a few months ago." She had had no had any recent panic episodes and had been married to her second husband for three months. The relationship was on positive terms and she also had a close relationship with her daughter. Mental status examination revealed the Veteran was neat and appropriately dressed. Psychomotor activity was unremarkable and speech was spontaneous, clear, and coherent. She was relaxed and attentive. Her affect was constricted and she described her mood as "ok". Attention was intact and she was oriented to person and place. As to time, she missed the correct date by three days. Thought process and content were unremarkable. As to judgment, she understood the outcome of behavior. Intelligence was average. As to insight, she understood that she had a problem. She reported sleeping three hours per night. There were no hallucinations, inappropriate behavior, obsessive ritualistic behavior, panic attacks, suicidal/homicidal thoughts, or episodes of violence. Her impulse control was described as good. Remote, recent, and immediate memory were normal. She was able to handle her finances. The examiner diagnosed an anxiety disorder and assigned a GAF score of 60. The examiner stated that there were mental disorder signs and symptoms that were transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner noted that the Veteran had intermittent anxiety and some social withdrawal, although she maintained some meaningful friendships. At the time of a June 2008 VA outpatient visit, the Veteran reported having problems with her memory, including difficulty focusing and concentrating on tasks, being easily distracted when reading, forgetting to complete tasks and constantly writing lists. Mental status examination revealed she was clean but small things were misplaced, such as the shoe being untied. Eye contact was within normal limits and speech had a normal rate and rhythm. The Veteran was cooperative but was suspicious, defensive, and guarded. Her mood was irritable but short term memory deficits complicated the evaluation. Her affect was mood congruent with restricted range. It was also tense and intense. Thought process was goal directed and concrete and she occasionally lost her train of thought and then resumed on the same topic approximately 70 percent of the time. She denied having suicidal or homicidal ideations or plans. She was oriented times four. Short term deficits and impaired concentration were noted. She was able to verbalize solutions to problems. As to judgment, she was able to make informed decisions and partial understanding, with mild to moderate impairment. The examiner noted that the Veteran had a confusing history both pre and post injuries, which was complicated by the TBI. She observed that the Veteran reported military sexual trauma in service. The examiner rendered diagnoses of PTSD and TBI and assigned a GAF score of 45. At a June 2008 psychiatric initial assessment, the Veteran reported the attempted inservice rapes, her prisoner duties, and the 2003 automobile accident. Mental status examination revealed she had adequate eye contact and was cooperative but restless and agitated. She was suspicious but her speech was normal. Her mood was anxious and depressed. She was also irritable. Her affect was labile. Thought process was goal directed but fragmented with some preservation and obsessiveness. There was no unusual thought content. The Veteran did have some paranoia/suspiciousness. Suicidal and homicidal ideation was absent. There were no perception disturbances. As to sensorium, she was aware and there was memory impairment. Personal insight capacity was limited and judgment capacity was impaired and impulsive. The examiner rendered diagnoses of r/o PTSD; r/o major depressive disorder; r/o panic disorder with agoraphobia; r/o cognitive disorder (due to TBI); and r/o pain disorder. She assigned a GAF score of 40. In November 2008, the Board remanded this matter for further development, to include obtaining a medical opinion which specifically addressed any relationship between the Veteran's service-connected anxiety and residuals of her 2003 accident, including anxiety and PTSD. The Veteran was afforded a VA examination in April 2009. The examiner indicated that the claims folder was available and had been reviewed. The examiner noted that the Veteran presented with a number of symptoms of anxiety, including feeling tense and nervous every day, being irritable and angry with her husband and daughter, having difficulty sleeping, and having nightmares. She also reported difficulty with short-term memory, concentration, and headaches. It was noted that the Veteran lived with her husband and daughter, having moved to Oklahoma approximately two months before. Her husband indicated he was her primary caretaker due to her disabilities. He stated he was worried about her memory. Her social life was limited to her husband and daughter and her husband's family, who lived in the area. She was able to maintain personal hygiene and perform activities of daily living. Her husband took care of all the financial responsibilities. Mental status examination revealed that the Veteran was causally and appropriately dressed. She was well groomed and had good hygiene. She was oriented times four. Her affect was somewhat flat and her mood was mildly depressed. She noted only being depressed sometimes. She denied the presence of inappropriate behavior. There was no evidence of thought disorder. She also denied hallucinations or delusions. She noted sleeping six hours per night. She also reported occasional nightmares. She denied suicidal/homicidal ideation or intent. The examiner noted that the Veteran reported having a number of symptoms of problems with cognitive functioning including short term memory impairment and difficulty with concentration. She stated that these problems were related to a TBI from tripping over an electrical cord and hitting her head; being assaulted with an iron in prison; and the 2003 motor vehicle accident. The examiner stated that the Veteran reported having difficulty focusing and concentrating on tasks such as reading, leaving things misplaced, forgetting to complete tasks, and writing lists. She stated that this continued to worsen. Objective testing revealed she was only able to remember one out of three words after two minutes. She also made numerous errors doing serial sevens. The examiner rendered a diagnosis of an anxiety disorder, and assigned a GAF score of 70. The examiner stated that overall that the Veteran continued to have a number of symptoms of an anxiety disorder with no periods of remission since the last evaluation. She was tense, irritable with loved ones, and had difficulty sleeping. She also had a number of symptoms of PTSD, including intrusive memories and avoidance of intimacy with her husband. She also had feelings of detachment from others, occasional nightmares, and difficulty sleeping. The examiner stated that these symptoms continued to be the symptoms described in her anxiety disorder. She noted that although the Veteran did have PTSD symptoms, they did not meet the diagnostic criteria for PTSD. Therefore, the diagnosis continued to be an anxiety disorder, with no other mental disorders found. The examiner stated it was impossible to separate out which symptoms were related to the service-connected disabilities and nonservice-connected disorders. For example, her anxiety, irritability, and short term memory problems could be attributed to both service-connected anxiety and nonservice-connected conditions such as the TBI from the motor vehicle accident. She stated there were no records available for review of her neurocognitive functioning. The examiner stated that the Veteran had mild and occupational social impairment from her anxiety problems and that her memory would make it difficult to be employable. She also had a lack of trust of others. She was able to maintain personal hygiene and basic activities of daily living. In its February 2011 remand, the Board noted that a review of the April 2009 VA examination indicated that clear opinions were not provided. It noted that in the 2009 examination report, the examiner stated "[i]t is impossible to separate out which symptoms are related to her anxiety disorder, and any nonservice-connected problems, such as the residuals of a TBI from a motor vehicle accident." As examples of intertwined symptomatology, the examiner listed "her anxiety, irritability, and short term memory loss." The Board further observed that the examiner also opined that "[t]he veteran is not seen to be competent to manage any VA benefits to which she may be provided" and also that "[h]er memory would make it difficult for her to be employable." However, the examiner also concluded that "[t]he veteran has mild occupational and social impairment from her anxiety problems" and assesses her GAF (Global Assessment of Functioning) at 70, or indicative of some "some mild symptoms" according to the DSM-IV. The Board found that when read altogether, the examiner's statements appeared contradictory: the Veteran had mild impairment due to anxiety and overall had mild problems functioning, yet a symptom of her anxiety, her memory problems, made her essentially unemployable and she was incompetent to manage funds. The Board indicated that because there was a lack of clarity in the medical evidence contained in the claims folder the issue had to be returned to the RO/AMC so that the Veteran could undergo additional examination in order to determine the severity of her service-connected anxiety and its impact on her ability to obtain and maintain gainful employment. The Board found that another VA examination with a medical opinion was necessary with regard to the anxiety disorder and TDIU claims. The Board requested that the Veteran be scheduled for a neuropsychiatric examination to assess the nature and severity of her anxiety disorder and her neurocognitive functioning. As to each aspect of the Veteran's neurocognitive and psychiatric symptomatology, the examiner was to offer an opinion as to whether it was at least as likely as not that her symptomatology could be attributed to her anxiety disorder, or whether it was more likely that part or all of her symptoms can be attributed to a nonservice-connected disorder, including residuals of an intercurrent motor vehicle accident injury in 2003. The examiner was also to state whether it was possible to separate the effects of the service-connected condition from any nonservice-connected condition and if possible to separate the effects of the anxiety disorder from any nonservice-connected condition, and provide an opinion as to whether it was at least as likely as not that any nonservice-connected disorder, like residuals of post-service head trauma, was proximately due to the service-connected anxiety condition. Finally, the examiner was requested to provide an opinion as to the impact of the service-connected psychiatric disorder on the Veteran's employability. If she was found to be unemployable, the examiner was requested to provide an opinion as to whether such unemployability is due in whole or in part to her service-connected disabilities, as opposed to any nonservice-connected disabilities. In conjunction with the February 2011 Board remand, the Veteran was afforded a VA neuropsychiatric examination in July 2012. The examiner rendered an Axis I diagnosis of an anxiety disorder. As to Axis III, a history of TBI was noted. The examiner noted the Veteran's three previous reported TBI injuries, including the 2003 motor vehicle accident. The examiner observed that the February 2008 TBI consult indicated that the Veteran had a history of a mild TBI. The report also indicated "unclear timing of onset of cognitive deficits but appears to have worsened over time which seems more related to level of stress and status of her PTSD/anxiety." The examiner assigned a GAF score of 58. It was noted that the GAF appeared to represent a decline from the previous examination, at which time she largely denied emotional or cognitive symptoms. The examiner noted that the Veteran had a diagnosed TBI. He observed that it was not possible to differentiate what portions of each symptom was attributable to each diagnosis. The examiner indicated that the Veteran had occupational and social impairment due to mild or transient symptoms with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner stated that he was unable to differentiate between the pre-existing anxiety that was present prior to the 2003 injury and anxiety that is claimed to be resulting from the 2003 injury. The examiner noted that the symptoms which were present were anxiety, mild memory loss, such as forgetting names, directions, or recent events; flattened affect; circumstantial, circumulatory or stereotyped speech; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or work-like setting. The examiner stated that it was not possible to definitively differentiate between the anxiety disorder which appeared to pre-date the 2003 injury and the 2003 injury itself. He noted that given the anxiety existed prior to the 2003 injury, it was not unexpected that anxiety was present at this time, but he could not clearly differentiate between the two. Anxiety could result from both the anxiety disorder and the TBI. Information as to the head injury was not very clear so as to provide the examiner with a clear understanding of the severity of the head injury which could impact the expected recovery. He observed that it was described as a mild TBI in 2008 based upon the Veteran's description, but the 2008 examiner also noted at that time that some of the history was not clear. The examiner further indicated that it was not possible to separate the effects of the service-connected condition from any nonservice-connected condition. The history of the TBI did not include a detailed work-up and some of the historical details were unclear. As to the impact of the anxiety disorder on the Veteran's employability, the examiner indicated that the Veteran's functional impact from her anxiety disorder included anxiety, agitation, and difficulty concentrating, which could mildly impact her ability to work in a sedentary or physical setting. At the time of a November 2012 VA psychiatric examination, the examiner diagnosed the Veteran as having an anxiety disorder. She assigned a GAF score of 65 and indicated that the Veteran complained of insomnia, irritability at family members, and mild memory problems. She stated that the Veteran had occupational and social impairment due to mild or transient symptoms with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner also indicated it was not possible to differentiate between the symptoms resulting from the anxiety disorder and the TBI. The Veteran was noted to be temporarily living in her daughter's home while she went for physical therapy. When not in PT she spent her time helping her daughter. She walked her dog and was learning how to play tennis with her daughter. She enjoyed going on walks and doing crossword puzzles. She also enjoyed reading. She also maintained all activities of daily living. The Veteran was noted to have anxiety, chronic sleep impairment, and mild memory loss such as forgetting names, directions, or recent events. She was found to be capable of managing her own funds. The examiner stated that the Veteran's anxiety disorder did not preclude her from obtaining and sustaining gainful employment. The examiner indicated that the Veteran had only mild impairment with respect to social and occupational functioning. She had friends and a good relationship with her husband and daughter, except for being irritable sometimes and having minor conflicts with her daughter. In terms of occupational functioning, she had mild difficulty concentrating but not enough to cause problems with reading and completing tasks. She also evidenced no problems with communication. It was further noted that the Veteran was currently researching journalism schools to pursue a bachelor's degree in communications or journalism. With respect to the Veteran's claims, the Board has also considered her statements that her disability is worse. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses. Layno, 6 Vet. App. at 470. She is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's anxiety disorder has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. Based on the evidence above, the Board finds that the Veteran's anxiety disorder has caused symptomatology which more closely approximates that of a 50 percent rating throughout the course of the appeal. Her anxiety disorder has been shown to cause difficulty in understanding complex commands, impairment of short-and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood resulting in difficulty in establishing and maintaining effective work and social relationships from the date of the initial grant of service connection for an anxiety disorder. However, the Veteran's anxiety disorder has not been shown to cause occupational and social impairment, with deficiencies in most areas. In this regard, the Board notes that that there have been no findings such as obsessional rituals which interfere with routine activities. In addition, her speech has only been found to have circumulatory or stereotyped speech on only one occasion. She has also not reported having such symptoms as near continuous panic attacks nor have there been any objective findings of such. As to spatial disorientation, the Board notes that the Veteran has not been found to be disoriented to time, place, and person, at any time. Moreover, there have been no findings of neglect of personal hygiene or appearance. She was noted to be kempt and appropriately dressed at the time of the VA examinations and her hygiene has never been reported as less than fair. As to symptoms such as social isolation, the Board notes that she has reported having a good relationship with her daughter throughout the appeal and to be happily married. There have also been no reports or findings of symptoms such as periods of violence. As to employment, the Board notes that the Veteran has not worked since 2002. The Board observes that she was involved in an automobile accident in September 2003 which resulted in a TBI. The Board notes that both VA psychiatric and neuropsychiatric examiners have indicated that they cannot definitively differentiate between her anxiety disorder which appeared to pre-date the 2003 injury and the 2003 injury itself and that given the anxiety existed prior to the 2003 injury, it was not unexpected that anxiety would be present at this time. As to the impact of the Veteran's anxiety disorder on employability, the Board notes that at the time of the Veteran's November 2001 VA examination, she was still working in the prison system. At the time of her January 2003 Social Security examination, it was indicated that her adjustment disorder with mixed emotional features including anxiety was mild in degree. While the Veteran was noted to be unlikely to sustain the mental and physical energy needed to maintain gainful employment at the time of her January 2004 VA examination, this was as a result of her still recovering from the 2003 automobile accident. While the April 2009 VA examiner indicated that there could be no delineation in the symptomatology associated with each mental disorder, she did state that the Veteran had only had mild occupational impairment from her anxiety disorder. However, she also noted that the Veteran's memory would make it difficult to be employable. As her statements appeared to be contradictory in nature, the Veteran was sent for an additional VA examination by a neuropsychologist in July 2012 to address these issues. While indicating he could not delineate what symptomatology was associated with each disorder, he stated that the Veteran's functional impact from her anxiety disorder included anxiety, agitation, and difficulty concentrating, which would only mildly impact her ability to work in a sedentary or physical setting. Moreover, the November 2012 VA psychiatric examiner indicated that the Veteran's anxiety disorder did not preclude her from obtaining and sustaining gainful employment and that it caused only mild impairment with respect to occupational functioning. She stated that in terms of occupational functioning, the Veteran had mild difficulty concentrating but not enough to cause problems with reading and completing tasks and no problems with communication. She also observed that the Veteran was currently researching journalism schools to pursue a bachelor's degree in communications or journalism. Further, the overwhelming majority of GAF scores assigned throughout the appeal period have been 51 or higher. As noted above, scores between 51-60, are reflective of 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). The evidence clearly reflects that the Veteran has symptomatology associated with her anxiety disorder. In this case, the evidence supports a 50 percent rating, but no more. In sum, the weight of the evidence is that she meets most of the criteria for a 50 rating for an anxiety disorder; however, the criteria for an evaluation in excess of 50 percent have not been met at anytime throughout the course of the appeal and a rating in excess of 50 percent is denied. Next, the Board has considered whether an extraschedular evaluation would have been warranted for an anxiety disorder. 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). 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 anxiety disorder is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. Specifically, the schedular rating criteria under DC 9413 provides for ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's psychiatric disorder has manifested nightmares, intrusive memories, difficulty concentrating, irritability, social avoidance, and trouble sleeping. 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 her daily life. In the absence of exceptional factors associated with an acquired psychiatric disorder, the Board finds that the criteria for referral 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). TDIU A TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities with at least one rated at 40 percent or more and he has a combined rating of at least 70 percent. 38 C.F.R. § 4.16(a). The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16(a). In any event, it is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b); see 38 C.F.R. §§ 3.340, 3.341, 4.15 (2012). In this regard, in Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated that there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon a Veteran's actual industrial impairment. In a pertinent precedent decision, VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria for determining unemployability include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (O.G.C. Prec. 75-91); 57 Fed. Reg. 2317 (1992). The Court has also held that a veteran's advancing age and nonservice-connected disabilities may not be considered in the determination of whether a veteran is entitled to a TDIU. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)(b), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him or her in a different position than other veterans with the same disability rating. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. Additionally, it is noted that a high rating in and of itself is recognition that the impairment makes it difficult to obtain and keep employment. Thus, the question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Furthermore, marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Service connection is currently in effect for an anxiety disorder, rated as 50 percent disabling; bilateral chondromalacia patellae, rated as 10 percent disabling; left ankle sprain, rated as 10 percent disabling; left hammertoe deformities; rated as 10 percent disabling; right hammertoe deformities, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; muscular ligamentous strain and degenerative disc disease of the lumbar spine, rated as 10 percent disabling; and muscular ligamentous strain and degenerative disc disease of the cervical spine, rated as 10 percent disabling. The combined disability rating is 80 percent. As the Veteran has a combined rating of 80 percent, with one rating over 40 percent, she meets the criteria for consideration under § 4.16(a) for TDIU. In support of her claim, the Veteran submitted a November 2006 letter from her private physician, Dr. O who indicated that she had been under his care since November 2003. He indicated that she was hit by a motor vehicle a few years previously with injuries to her head and neck as well as her lower left extremity status/post intermedullary rod placement. He stated that this had left her with significant daily headaches and chronic lower extremity pain which made it unfeasible for her to secure gainful employment. As a result, she had been unemployable and would likely remain so. In November 2012, the Veteran was afforded a VA examination to determine the impact of her service-connected disabilities on her employability. Following examination, the examiner stated that her service-connected right ankle, lumbar spine, cervical spine, bilateral knee, and bilateral foot conditions limited her ability to obtain and maintain physical employment which involved prolonged walking over 1/4 mile, standing over 20 minutes, lifting over 10 pounds, bending, squatting, and climbing. It was further indicated that the Veteran's service-connected right ankle, lumbar spine, cervical spine, bilateral knee, and foot conditions did not limit her ability to maintain sedentary employment. As noted above, the July 2012 VA examiner indicated that as to the impact of the anxiety disorder on the Veteran's employability, her functional impact from her anxiety disorder included anxiety, agitation, and difficulty concentrating, which could mildly impact her ability to work in a sedentary or physical setting. The November 2012 VA psychiatric examiner indicated that her anxiety disorder did not preclude her from obtaining and sustaining gainful employment and that it caused only mild impairment with respect to occupational functioning. The Board finds that the Veteran's statements and the November 2006 statement from Dr. O regarding her unemployability are outweighed by the objective medical findings of the July and November 2012 VA examiners, which were rendered following comprehensive examinations of the Veteran and a complete review of the claims folder. The Board notes that the Veteran has significant problems from her service-connected disabilities, as evidenced by the combined 80 percent rating, but the evidence does not demonstrate that the service-connected disabilities cause her unemployability. The fact that she cannot be employed in her prior occupation (while it does provide a basis to undertake detailed examinations to determine this issue) does not, of itself, provide the basis to find that she cannot work due to her service-connected disabilities, not taking into consideration the Veteran's age and nonservice related problems. The factual record as a whole provides highly probative evidence against the Veteran's contention. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. As it relates to the issue of higher initial ratings for an anxiety disorder, the courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, the Board also finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, private treatment records, VA examination reports, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the claimant. The Veteran has been afforded numerous VA examinations with regard to her anxiety disorder. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examinations to be sufficient. Thus, the Board finds that a further examination is not necessary regarding this issue. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issue of entitlement to an initial rating for an anxiety disorder. As to the issue of a TDIU, VA provided VCAA notice to the Veteran in letters sent in February 2003 and December 2008. The February 2003 letter informed her of the evidence needed to substantiate her claim. In the December 2008 letter, the RO informed her as to how VA assigns disability ratings and effective dates. In this case, no delay is necessary because the notice errors have not resulted in prejudice to the Veteran. As to the timing defect, the RO readjudicated the claim subsequent to the December 2008 letter. These readjudications coupled with the time that she has had to provide argument and evidence to support her claim have cured the timing defect. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment 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). Service and VA treatment records are associated with the claims file. Adequate VA examinations were conducted in July and November 2012 which provide sufficient detail in order to properly address the claim. Moreover, the requested development in the prior Board remands has also been complied with. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by her representative and through testimony at a hearing if so desired. For these reasons, it is not prejudicial to her for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist have been met, and no further action is necessary to assist her in substantiating this claim. ORDER A 50 percent rating, and no more, for an anxiety disorder, for the entire appeal period is granted, subject to the law and regulations governing the payment of monetary benefits. TDIU is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs