Citation Nr: 1315993 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 08-33 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for service-connected generalized anxiety disorder with depression. 2. Entitlement to a total disability rating for compensation purposes based on individual unemployment due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from October 1974 to October 1976. This matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In a January 2008 rating decision, the RO granted an increased disability rating from 10 percent to 30 percent for the service-connected acquired psychiatric disorder effective January 5, 2007. In a September 2008 rating decision, issued after the Veteran submitted a February 2008 Notice of Disagreement, the RO further increased the 30 percent disability rating to 50 percent, effective January 5, 2007, for the acquired psychiatric disability, characterized as a generalized anxiety disorder with depression. The Veteran perfected his appeal with a VA Form 9, received at the RO in October 2008. In April 2010, the Veteran submitted a claim of entitlement to a TDIU. In a November 2010 rating decision, the RO denied the TDIU claim. In a December 2011 decision, the Board denied a disability rating in excess of 50 percent for the psychiatric disability, and the Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court). In a June 2012 Order, the Court adopted a Joint Motion for Remand (JMR). In the JMR, the Secretary of VA and the appellant (the parties) explained that the Board (1) should have considered the TDIU claim in its December 2011 decision, see Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); and, (2) that the Board based its decision on the fact that the Veteran lacked specific symptoms as listed in the rating criteria which is prohibited under Mauerhan v. Principi 16 Vet. App. 436, 443 (2002). As a result of the directives set forth in the JMR, the Board remanded the case back to the RO for additional development of the record in January 2013. Upon completion of the requested development, to the extent possible, the RO issued a supplemental statement of the case and returned the case to the Board. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. Since December 29, 2006, the Veteran's service-connected psychiatric disorder has been manifested by a disability picture that more nearly approximates that of occupational and social impairment with reduced reliability and productivity, due to symptoms such as disturbances of motivation and mood with periods of depression and sadness; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); generalized anxiety with irritability and some anger outbursts, sleep disturbance, and difficulty in establishing and maintaining effective work and social relationships. 2. At no time during the period covered by this appeal has the service-connected generalized anxiety disorder been manifested by a disability picture that more nearly approximates that of deficiencies in most areas such as work, school, family relations, judgment, thinking or mood due to symptoms such as obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; spatial disorientation; neglect of personal appearance and hygiene; and inability to establish and maintain effective relationships; nor is total occupational and social impairment shown. 3. The one day psychiatric hospitalization in September 2007 and two-week psychiatric hospitalization in August 2009 in which the Veteran's symptoms included suicidal ideation were acute situational manifestations related to a specific employment relationship that resolved, and were not indicative of his overall disability picture. 4. The Veteran's service connected disabilities, which combine to a 90 percent disability rating, include residuals of an injury of the right elbow and forearm, rated as 70 percent disabling; generalized anxiety disorder with depression, rated as 50 percent disabling; hepatitis C, rated as 20 percent disabling; and scars of the thigh and the donor site, rated as noncompensable. 5. The Veteran's service-connected disabilities do not preclude the Veteran from obtaining all forms of gainful employment. 6. The Veteran, without good cause shown, cancelled a VA examination scheduled on his behalf to (1) assess the current severity of the service-connected psychiatric disorder; and (2) to determine whether the Veteran is unemployable due to service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a 50 percent disability rating for generalized anxiety disorder with depression have been met since December 29, 2006; however, a disability rating in excess of 50 percent for generalized anxiety disorder with depression have not been met or approximated at any time during the period covered by this claim. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.400 (o), 3.655(a) (b), 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9400 (2011). 2. The criteria for the assignment of a TDIU are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 3.655, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 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 evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1) , proper notice 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. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the Veteran's increased rating claim, the RO sent a pre-rating letter mailed to the Veteran in August 2007. This letter was in response to the Veteran's claims of service connection for hepatitis C and for depression as secondary to Hepatitis C; thus, it did not contain adequate notice as to how to substantiate a claim for increase, generally. Instead, the letter provided the Veteran with notice of how to substantiate a claim of service connection, including what the evidence must show, how VA determines the disability rating, and how VA determines the effective date. Despite any defect with regard to the initial pre-rating notice as it pertained to a claim for increase, the RO nonetheless found that the severity of the Veteran's overall psychiatric disability had increased because there was evidence of depression in addition to the overall generalized anxiety disorder; and thus assigned an increased disability rating of 30 percent for service-connected psychiatric disability pursuant to a January 2008 rating decision. The psychiatric disability was later recharacterized as generalized anxiety disorder with depression. Thus, although the Veteran was not provided with proper pre-rating notice regarding how to substantiate an increased rating claim, an increased rating was granted. The lack of pre-rating notice therefore results in harmless error. After the Veteran submitted his February 2008 Notice of Disagreement (NOD), the RO issued a Decision Review Officer (DRO) decision in September 2008 whereby the disability rating for the service-connected generalized anxiety disorder with depression was increased to 50 percent, effective from January 5, 2007, the same date on which the increase to 30 percent was made effective. As that increase was not a complete grant of benefits sought on appeal, the issue remained in appellate status and before the Board. See AB v. Brown, 6 Vet. App. 35, 39 (1993). In a December 2008 letter to the Veteran, the RO provided the Veteran notice of the specific rating criteria that applies to the Veteran's claim for an increased rating for his service-connected psychiatric disorder pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9400 under the General Rating Formula for rating Mental Disorders. Thus, any defect with regard to the timing of the notice was cured with a subsequent letter sent in December 2008 notifying him of the rating criteria specific to his claim for an increased rating. With regard to the TDIU claim, the RO provided a pre-rating letter April 2010. The letter provided notice of how to substantiate a TDIU claim and the relative duties of VA and the Veteran in obtaining evidence to support the claim. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. His service treatment records, claims submissions, and identified VA treatment records have been obtained and associated with the record. VA psychiatric examinations were afforded to the Veteran in September 2007 and May 2010, and the Veteran's VA mental health treatment records contain numerous mental health assessments conducted throughout the appeal period. The claim was remanded in January 2013 and per the remand directives, additional VA treatment records were added to the claims file. The remand also directed the RO to schedule the Veteran for VA compensation and pension examinations. Requests for those examinations were initiated on his behalf; however, in March 2013, the Veteran indicated his refusal to attend such examinations. VA's duty to assist is not a one-way street. If the veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 191 (1991). Thus, to the extent possible, the agency of original jurisdiction (AOJ) substantially complied with the January 2013 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Finally, VA mental health records from 2010, the Veteran refers to applying for disability retirement. Although the Veteran was not working during that time period, he was using up all of his sick leave before retirement; thus, he was still employed with the United States Postal Service and therefore was ineligible to receive such benefits. There is no indication from the record that the Veteran attempted to obtain disability retirement once he was legally retired, and there is no indication in the record that he is in receipt of such benefits. Thus the Board is not obligated to remand for development in this regard. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Increased Rating Service connection for a psychiatric disorder was established pursuant to a May 1977 rating decision. In that decision, the RO granted service connection for of loss of use of the right, residual fracture with associated mild anxiety neurosis. An initial 70 percent disability rating was assigned for the entire disability, and the psychiatric portion of the disability was not separately rated. In a July 1981 rating decision, the RO determined that the Veteran's nervous disorder represented a separate disability entity, and was compensable. Thus, the RO separately rated the Veteran's generalized anxiety disorder as 30 percent disabling from March 26, 1981. That rating was subsequently reduced to 10 percent by way of an April 1984 rating decision. Presently, the Veteran seeks an increased rating for the generalized anxiety disorder with depression. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1 . Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 . It is appropriate to consider whether separate ratings should be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, consideration shall be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The evaluation will be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of examination. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Global assessment of functioning (GAF) scores, which reflect the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health, are also useful indicators of the severity of a mental disorder. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). GAF scores ranging between 51 to 60 are indicative of moderate symptoms (e.g., flat affect, circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). GAF scores between 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Scores between 31 to 40 range indicate impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV, 46-7 (1994). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 31, 1995). Under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9400, a 30 percent disability rating is appropriate where the evidence shows that generalized anxiety disorder is productive of occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (i.e., forgetting names, directions, and recent events). A 50 percent disability rating is assigned for generalized anxiety disorder that is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as a 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; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is appropriate where generalized anxiety disorder is manifested by 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 that is 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); or the inability to establish and maintain effective relationships. A 100 percent disability evaluation is granted where generalized anxiety disorder is productive of 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 himself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; or memory loss for the names of close relatives, own occupation, or own name. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. As noted above, the RO assigned an increased rating of 50 percent, effective from January 5, 2007, the date on which it was factually ascertainable that an increase in disability had occurred because it was within one year of the filing of the Veteran's claim for increase. In general, the effective date for an increase will be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(1). For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(2). In a May 2007 statement, the Veteran reported that he was diagnosed with hepatitis and since then has had increased anxiety and depression symptoms. He stated that he cannot sleep well and feels tense. He reported constant worry affecting his performance at work and his behavior when dealing with people in general. He lost interest in coming to work and he cannot concentrate in any task without going back to his health problems. He reported that he lost respect for his life and does not care what happens to himself. He was prescribed antidepressants and sleeping pills but they do not help. He is concerned about the future of his family and how much longer he will be able to live. He also indicated he has no patience and that he reacts aggressively to people or situations at work and in his personal life, so he tries to stay away from dealing with other people. VA outpatient treatment records date back to December 2006. At that time, the Veteran appeared fidgety and nervous. He complained of difficulty sleeping and staying asleep. After much prodding, he reported that he was going through a divorce and has less contact with his child He had to move to an apartment and he had financial concerns. He had problems focusing at work and tasks need to be repeated due to forgetfulness. Nonetheless, the Veteran appeared well-developed, well-nourished, and alert and oriented times three. He appeared in no acute distress. The Veteran's judgment, insight, recent memory and remote memory were considered good. Mood was depressed. The Veteran was observed to be fidgety, nervous, looking down, and he reported being ashamed of being depressed. The assessment was uncontrolled depression, but a denial of suicidal and homicidal ideation. Celexa was prescribed. In a January 2007 VA progress note, the Veteran was followed up for depression. The Veteran stated that he did not notice any improvement or worsening of his symptoms. The diagnoses included depression and anxiety, situational due to divorce. During a March 2007 VA mental health follow-up, the Veteran reported that he was feeling overwhelmed over the last several months. He described frequent worry about the future and health problems related to his new diagnosis of hepatitis C and also some rumination. He also described feelings of isolation as he has been separated from his wife for two years and his only close contact is with occasional visits to see his son and daughter. He complained of frequent nightmares, but denied any significant avoidance symptoms or significant activation symptoms. He also reported stress at work, explaining that his supervisory position led to significant irritability, frustration, and agitation for much of his day. He stated he can be quite verbal with his employees when they are not performing adequately, but he has never been violent and has never had problems controlling his temper leading to any disciplinary action. He acknowledges fairly new difficulty with concentration. He denied any ritualistic or compulsive behavior. The examiner noted he had no history of panic attacks or manic psychotic symptoms. The Veteran described no problems with activities of daily living. Upon mental status examination, the examiner noted he was dressed and groomed appropriately, pleasant, and cooperative. There was no abnormal eye movement or gestures and eye contact was generally good. Speech was within normal limits in rate, tone, and volume, and no latency was present. Mood was "nervous initially, but ok now" and affect was mostly congruent with a normal range. The Veteran denied suicidal or homicidal intent and no audio or visual hallucinations were present. Thought process was linear, coherent, goal-directed, and associations were tight. Insight and judgment are limited. He was alert and oriented times four and it is thought the Veteran was of average intelligence. The diagnosis was generalized anxiety disorder, depressive disorder, rule out dysthymia, and rule out major depressive disorder. The assigned GAF score was 60. During May and June 2007 VA mental health follow-ups, the examiner noted improved socialization, an improvement in the level of anxiety, and improvement in ruminations. The Veteran continued to report trouble with focus and concentration, and fatigue. In a late-May note, the Veteran endorsed worsening trouble with focus and concentration and much worse ruminations. Upon mental status examination, the examiner noted the Veteran was dressed and groomed appropriately. There was no abnormal eye movement or gestures and eye contact was generally good. Speech was within normal limits in rate, tone, and volume, and no latency was present. Mood was "frustrated...worried" or "upset" and affect was mostly congruent with a normal range. The Veteran denied suicidal or homicidal intent and no audio or visual hallucination were present. Thought process was linear, coherent, goal direct, and associations were tight. Insight and judgment are limited. He was alert and oriented. The diagnosis was generalized anxiety disorder, depressive disorder, rule out dysthymia, and rule out major depressive disorder. The assigned GAF score was 55. In September 2007, the Veteran was admitted to a VAMC overnight. The discharge summary notes that the Veteran presented with increasing symptoms of irritability, depressed mood, insomnia, and ruminative thought process. He reported normal appetite, libido, and that he was able to perform his job but he has impairment in concentrating while reading. He reported he participates and obtains enjoyment through interacting with his family. Upon mental status examination, the examiner found the Veteran was dressed casually and well groomed. He had reasonable eye contact with no psychomotor retardation or agitation. His speech was spontaneous and normal in rate, rhythm and tone. His mood was "nervous" and his affect was dysphoric. He had suicidal ideas but no specific plans or intent. He harbors thoughts of harm towards a work colleague but denied homicidal ideas towards others. His thought process was linear and goal-directed and he denied hallucinations in any modalities. His insight was good. The September 2007 discharge summary notes that the Veteran reported "being overwhelmed" ever since the onset of stressors which included separation from his wife as well as conflict with his supervisor from work and recent diagnosis of hepatitis C. The Veteran denied any racing thoughts, panic or symptoms suggestive of a manic episode. The Veteran reported that he has had several trials of antidepressants, but only takes them on an as-needed basis. A suicide risk assessment revealed that the Veteran denied any current suicidal or homicidal ideation, and denied a history of violence. Upon discharge, the day after admission, the Veteran was alert, oriented, dressed appropriately, and cooperative with a fair amount of eye contact and no abnormal psychomotor activity noted. Speech was normal in rate, volume, and content. Thoughts were linear and logical with tight associations. The Veteran was not hallucinating or delusional. He was not deemed to be imminently suicidal or homicidal. His insight was partial. It was noted that the Veteran was admitted and watched over the night and did not show any agitation or suicidal or homicidal behavior. He was deemed stable for discharge. Global Assessment of Functioning (GAF) on admission was 50 and Global Assessment of Functioning (GAF) at discharge was 55. During a September 2007 VA examination, the Veteran reported a history of anxiety and worsening depressive symptoms. At the time of the examination, the Veteran had worked for the Postal Service for about 24 years. He was a supervisor in a management role. He had a history of being a very diligent worker and often worked over 12 hours a day. He indicated he continued to work but recently began to take perhaps one to two weeks' worth of sick time because of his mood difficulties and overwhelming stress. Much of his stress is related to conflict with a new supervisor and, significantly, the Veteran reported that he did not have past problems with other supervisors. As a result of the new supervisor, the Veteran reportedly has periodic verbal anger outbursts towards others at work. He stated he gets along with his two daughters and sees them on weekends. He does not have much in the way of social interactions and he has no close friends because most of his friends and family are in Puerto Rico. He reported getting along with his family and that he spends most of his time doing solitary activities. He also indicated that he attends church. Upon mental status examination, the examiner noted that the Veteran's mood was significantly dysphoric and anxious, and he displayed a mild psychomotor agitation. There was no impairment of thought processing or communication and no delusions or hallucinations. Eye contact was mildly impaired. His behavior was appropriate and he denied any problems with homicidal thinking. He reported recent suicidal thoughts leading to his psychiatric admission a few days ago. He asserted he has no current active suicidal thoughts and no intent to act on any such thoughts. He does adequately with personal hygiene and basic activities of daily living. The Veteran was oriented. He indicated some mild memory difficulty and complained of being more forgetful and relying more on written or electronic reminders. He has no obsessive-compulsive behavior. Speech was within normal limits and there were no panic attacks. The Veteran endorsed chronic, daily symptoms of depression, including irritability. He reported that he will sometimes throw or break something at home. His sleep is poor and he is having significant problems with insomnia and frequent awakening. With medication, he gets about five hours of sleep, but often still feels tired. The diagnoses were depressive disorder and generalized anxiety disorder. The examiner noted that he continued to have significant problems with anxiety and depression. In VA mental health notes dated from September 2007 to May 2008, the examiner noted that the Veteran was being treated for generalized anxiety disorder and a major depressive disorder that is in partial remission. The Veteran reported he continues to be invested in relationships and is spending time with his daughters. Upon mental status examination, the examiner noted the Veteran was dressed and groomed appropriately with polite and cooperative conversation. He was alert and oriented. There was no abnormal eye movement or gestures and eye contact was generally good. Speech was normal limits rate, tone, and volume. Mood was "alright" and affect was congruent. The Veteran denied suicidal or homicidal intent and no audio or visual hallucination were present. Thought process was linear, coherent, and goal-directed. Insight was good. The diagnosis was generalized anxiety disorder and major depressive disorder. The assigned GAF scores were between 55 and 57. VA progress notes indicate the Veteran was hospitalized for psychiatric care at the Salem VA Medical Center (VAMC) for thirteen days in August 2009. In an August 2009 VA progress note, the Veteran reported that he has been "very depressed." He stated that he was working and having problems with a female boss including a one week suspension from work. He reported feeling increasingly depressed, with poor energy, "zero" motivation and poor and fragmented sleep. He had been contemplating committing suicide and had finally made his mind to buy a gun and "get over with it." He reported feeling hopeless and stated that he does not have much support from his friends or family. He reported significant ruminations and nihilistic thinking. He denied symptoms suggestive of mania/hypomania, psychosis, thought broadcasting, withdrawals or paranoia. On mental status examination, the Veteran was dressed and groomed appropriately with evidence of significant psychomotor retardation, poor eye contact, normal speech, "wound up, suicidal and depressed" mood, and congruent affect. The Veteran reported suicidal ideations with a plan of buying a gun and shooting himself. He denied homicidal ideation. His thought process was linear, logical, and coherent as well as goal-directed. He denied any auditory or visual hallucinations and his insight continued to be good and judgment intact. The diagnoses were major depressive disorder, severe with suicidal intent, and generalized anxiety disorder. The assigned GAF score was 30. In an August 2009 VA discharge summary, the examiner noted that the Veteran's mood had improved. He was feeling quite happy and he was very hopeful about his future. His affect was bright, euthymic, and cheerful with full range. He was not having any suicidal ideation or any other psychotic, manic, or paranoid symptoms. The examiner reported that during the Veteran's hospitalization, his mood improved considerably. He was seen by the team every day and the rest of the hospitalization was basically without any episode. At the time of his discharge, he was not suicidal, homicidal, or psychotic. The diagnoses were major depressive disorder and adjustment disorder with depressed mood. The assigned GAF score was 58 on discharge. In an August 2009 letter, the Veteran reported he has chronic anxiety disorder, depression, suicidal thinking (two hospitalizations), and sleeping disorder with thoughts of hurting others, memory problems of tasks and work assignments that have lead to repercussions at work and increase his depression and anxiety, voices telling him to kill himself, and loss of appetite. In an August 2009 VA follow-up, the examiner noted that the Veteran was admitted to the hospital with complaints of worsening depression. During hospitalization, his medications were changed and he reports significant improvement in his depressive symptoms since his discharge from the hospital. He reported he was more relaxed and more stable. He stated he enjoys reading and doing exercise. He denied any side effects from current medication and is able to sleep and eat fairly well. He also denied any suicidal or homicidal ideas or plans or any other psychotic symptoms. Upon mental status examination, the examiner noted he was casually dressed, cooperative, and pleasant as well as alert and oriented. His attention and concentration was intact and he had a euthymic mood without irritability, sadness or anxiety. This affect was full and reactive, and his speech was regular in rate and rhythm. His thought process was linear, logical and goal-directed, and he denied any obsessions, delusions, paranoia, or other thought abnormalities. The Veteran denied any audio or visual hallucination. He also denied suicidal or homicidal ideas or plans. His insight was present and his judgment was good. In employment records dated in January 2010, the letter reads that in reviewing the Veteran's medical records, the Veteran was found to be disabled for his position as a manager of in-plant support due to severe major depression and generalized anxiety disorder. Accompanying documents included a September 2009 statement of disability by the Veteran which reported lack of concentration, lack of focusing attention to detail, poor attendance, and disciplinary action as examples of how his disease interferes with performance of his duties, his attendance and his conduct. The Veteran also reported lack of appetite, lack of sleep, panic attacks, lack of motivation and suicidal thinking. Also included was an October 2009 statement from the Veteran's supervisor which noted that she stopped assigning him tasks because "ether he doesn't come to work or can't understand or complete the task." At a March 2010 VA mental health follow-up appointment (reviewed in the Veteran's VVA folder), the Veteran reported that he has been compliant with the medications. He reports that his mood has been getting better as the weather seems to be improving. He reports that he was supposed to go to Puerto Rico but his plan has been delayed until June because one of his daughters is getting married in June. He reports that these days since he has not been working he feels that the stress level has gone down. He reports that he sits at home and has been taking care of chores and has more time to himself. He reports that as the weather is getting better he will do more outdoor stuff. He denies any active suicidal or homicidal ideations, intent or plan. He reports that his mood gets sad at times but he is able to bring it back and it is generally short lasting. The mental status examination revealed no evidence of any psychomotor abnormality. Gait is normal. No extraocular movements were observed. Mood was described as "has been getting better but still feel down at times but it doesn't last too long." Affect is mostly euthymic, normal range. No lability was seen. There were no auditory or visual hallucinations reported. The Veteran denied any active suicidal or homicidal ideations, intent or plan. Judgment and insight seem to be good. The diagnoses were (1) major depressive disorder, recurrent, without psychotic symptoms, doing well with the medications; and (2) generalized anxiety disorder. Global Assessment of Functioning (GAF) was 55. During a May 2010 VA examination, the examiner noted that the Veteran was hospitalized in August 2009 due to ongoing problem with his supervisor at work. It was reported that he was suspended and after he went back to work his psychiatry notes indicated that he was dealing with the situation adequately. He was coping with it better than before and he was able to ignore it most of the time, though it would still upset him at times. The Veteran chose to take disability retirement and had been using up his left-over vacation and sick time since January 2010. Some records indicate he has had less stress in his life since that time. Overall, the examiner opined that the Veteran seemed to have functioned quite well at work for many, many years, until this one particular supervisor came on and created a lot of increased stress and frustration. Therefore, the Veteran has demonstrated a history of being able to work, and this is not an issue of the Veteran's mental health symptoms making him unable to work, but this more of a specific interpersonal difficulty with this one particular supervisor. The Veteran reported that his wife and two daughters still live in the area and he visits them at times. He reported some limited social interactions including a female friend and neighbors he sees occasionally. He prefers to spend time alone, but he enjoyed reading, listening to the radio and watching television. He ran his own errands and took care of household tasks. Upon mental status examination the examiner noted the Veteran's affect was generally within normal limits. His mood appeared mildly dysphoric and mildly anxious. There was no impairment of thought processing or communication nor were there any delusions or hallucinations. Eye contact and behavior were appropriate. The examiner noted that the Veteran's records seem to indicate that he has not been having significant suicidal thinking; however, at that time, the Veteran reported that suicidal thoughts have occasionally crossed his mind, but he is not presently feeling this way and denied any intent to act on it. He reported that reading the Bible helps lift him out of these thoughts and thoughts of his family serve to prohibit such suicidal behavior. He denied homicidal thoughts. He does adequately with personal hygiene and basic activities of living. He continues to report some mild short-term memory difficulties such as needing to write things down or set an electronic alarm to he will remember things. He reports his wife will remind him of things as well. He has no obsessive-compulsive disorder. There were no panic attacks. The Veteran reported frequent anxiety but stated that his medication helps. The Veteran described some ongoing, periodic impulse control difficulties. He continues to have periodic anger outburst towards his family. He stated that over a year ago he "tore up" his apartment in a fit of anger. He reported that last month he had missed his medication and was off of that for a couple of days and destroyed his mattress in a fit of anger. Sleep appears limited to that described in the last exam. The diagnoses were depressive disorder and generalized anxiety disorder. The assigned GAF score was 55. In May 2010, the Veteran's wife submitted a letter indicating that she has been separated from the Veteran. She stated that the Veteran has violent moments when he just starts yelling for no reason and breaks articles in the home. His children are afraid of him. She stated that she calls him on a regular basis and sometimes stops by to see him when he does not answer her calls. She reported that many times she has found him in a state of confusion, not knowing the day or time, not eating, bathing or sleeping. In VA progress treatment records dated from March 2010 to October 2010, the Veteran reported that since he has stopped working his stress has gone down. He indicated that his mood gets sad at times but he is able to bring it back and it is generally short lasting. Upon mental status examination, the examiner found the Veteran had no evidence of psychomotor abnormality, no extraocular movements were observed, and his mood was described as "getting better but still feel down at times." Affect was mostly euthymic, and no auditory or visual hallucinations were reported. He denied any active suicidal or homicidal ideations, intent or plan. His judgment and insight seemed good. The diagnosis was major depressive disorder without psychiatric symptoms and generalized anxiety disorder with an assigned GAF score of 55. During the October 2010 VA follow-up, the Veteran reported fleeting suicidal thoughts, but that they go away when he reads the Bible. Additional VA outpatient mental health treatment records from October 2010 through January 2013 were obtained and added to the Veteran's Virtual VA file. These records show continued treatment for depression and anxiety, with essentially the same findings on mental status examinations. For example, a May 2011 VA mental health follow-up report indicates no evidence of any psychomotor abnormality. Gait was normal. There were no extraocular movements observed. Mood was described as "down, low." Affect was dysphoric, he was tearful during the interview talking about his ex wife, and anger problems. There were no auditory or visual hallucinations reported. The Veteran denied any active suicidal or homicidal ideations, intent or plan. Judgment and insight seemed to be good. Global assessment of functioning was listed as 50-55. An October 2011 mental health follow-up report notes the Veteran's complaints of "seeing people that aren't there sometimes," dark people that he can't recognize or hear. He denied any auditory hallucinations and there were no command hallucinations. The Veteran felt "paranoid" that people are out to get him, and this makes him anxious. By January 2012 the GAF score had climbed back to 55 and the Veteran's medications were changed. In April 2012, the Veteran reported that he was doing better with sleep. Mental status examination revealed that the Veteran was appropriately dressed and groomed. He had fairly good eye contact, and his attitude cooperative. No acute paranoia was evident. Psychomotor activity was within normal range. Anxiety level was normal. Affect was in the fair range, appropriate to a euthymic to slight dysthymic mood. Thought processes were logical, linear, and coherent, with normal speech in tone, cadence and pitch. Thought content revealed no suicidal or homicidal ideation, nor any acute preoccupations. Perceptions revealed no audio or visual hallucinations, and there were no apparent delusions/illusions, and no active paranoid processes. The Veteran was fully alert, oriented, and otherwise grossly intact. Judgment/Insight was deemed fair. GAF Score was 55. Finally, in December 2012 VA mental health progress report, the Veteran noted that he was nervous, and that he had too much time on his hands since he had stopped working, and that made him nervous. Mental status examination was similar to that of January 2012. In summary, the Veteran has a generalized anxiety disorder with depression. The VA records and examination reports dated since December 2006 have provided a clear picture of the manifestations and level of severity of the Veteran's psychiatric disorder. In nearly every mental health report, as well as both VA examinations of record, the Veteran has reported, and the examiner has noted, anxiety, nervousness, depression, worry, difficulty sleeping, and irritability. In addition to these core symptoms, the Veteran has also had occasional periods of inability to control his anger, according to his ex-wife and his own statements. The Veteran also reports memory impairment, forgetfulness, and lack of concentration, although these symptoms were not specifically identified on mental status examinations. The record reveals that the Veteran has tried numerous medications to control his anxiety and depression. The medications appear to help somewhat, although the Veteran has had to discontinue some of the medications due to side effects. The totality of the evidence shows that the Veteran has mood swings. When his mood is down, he has crying spells and feels helpless and hopeless, but he manages to overcome these symptoms in time, and reported that reading the bible helps. The Veteran's overall disability picture more nearly approximates that of occupational and social impairment with reduced reliability and productivity due to such symptoms as anxiety, depression, irritability, lack of concentration, forgetfulness, occasional periods of inability to control behavior, sleep difficulty, restricted affect, forgetfulness, disturbances of motivation and mood and difficulty in establishing and maintaining social relationships. The Veteran has demonstrated some impairment in social function including subjective complaints of increased depression and irritability and two instances of suicidal ideation, as evidenced by a one day hospitalization in September 2007 and a 13 day hospitalization in August 2009. During those periods, the Veteran felt helpless and hopeless, but he was always adequately groomed and denied hallucinations. Although such symptoms are more serious than the overall disability picture shown throughout the appeal period, they were not persistently present within the Veteran's several years of treatment. Specifically, these episodes were acute situational manifestations related to a separation from his wife, and an employment relationship with a supervisor that resolved, and were not indicative of his overall disability picture. The record repeatedly indicates that the Veteran was employed in a supervisory position for nearly 30 years and never had a problem with getting along with supervisors or co-workers until a new supervisor caused problems for him. Although the Veteran's symptoms have waxed and waned throughout the period covered by this claim, the overall disability picture more nearly approximates the criteria for the assignment of a 50 percent rating. There have been some periods during which the Veteran reported that his symptoms had improved somewhat, particularly after he stopped working; however, there were other times where the Veteran exhibited more severe symptoms; however, the overall disability picture has never demonstrated that the Veteran's generalized anxiety disorder with depression causes occupation and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood. Although the Veteran's relationship with his wife is strained, he nonetheless remains in contact with her. Additionally, the Veteran recently reported that he was attending his daughter's wedding and that he visits her in Puerto Rico. During therapy sessions and examinations, the Veteran had good eye contact, was oriented in all spheres, and had fair to good insight and judgment. With regard to occupational impairment, the Veteran retired from his job because he did not get along with his last supervisor. However, the Veteran made clear that his long work history and ability to get along with all other supervisors and co-workers is evidence of no occupational impairment. When considering this scenario, there can be no more than occasional decrease in work efficiency. The Veteran has had two periods of suicidal ideation, and was hospitalized as a result. During these periods, the Veteran had increased depression and anxiety; however, by the time the Veteran was released, his severe symptoms lessened considerably and his Global Assessment of Functioning (GAF) scores were in the mid 50's. These two periods of more severe symptoms is evidence of poor judgment, near continuous depression and difficulty in adapting to stressful circumstances; however, these two periods of hospitalization do not represent the overall disability picture as noted above. The Veteran's demonstrated ongoing symptoms do not include obsessional rituals, 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; or difficulty in adapting to stressful circumstances. The Veteran is able to function independently, is able to engage in meaningful family relationships, and is able to bring himself out of a depression period with the help of talking to his family and reading the bible. Based on these findings, the criteria for a rating in excess of 50 percent are not met. Likewise, the Veteran does not have auditory hallucinations or other psychotic symptoms. Although an October 2011 mental health note reports that the Veteran saw people that aren't there sometimes, dark people that he can't recognize or hear, this statement is vague and it is inconsistent with the evidence both before and after that date. All of the evidence prior to October 2011 and after October 2011 notes that the Veteran denies all hallucinations. Because the October 2011 statement reporting visual hallucinations is inconsistent with the Veteran's own self-reported history of no hallucinations, which he has repeatedly stated, the October 2011 is outweighed by the other evidence of record. Although the Veteran's wife, from whom he has been separated a number of years, has commented that the Veteran's lacks good hygiene and has an impaired relationship with this children, there have been no objective findings of neglect of personal appearance and/or hygiene on any of the numerous mental health records or examination reports; and, the Veteran has reported good relationships with his children. Thus, the wife's lay statement is outweighed by the other evidence of record. The Veteran has reported some impaired impulse control on occasion, but not homicidal ideation. This, along with two isolated incidents of suicidal ideation, does not show deficiencies in most areas, such that the assignment of a 70 percent rating would be warranted. The lowest GAF score of record, 30, was listed on admission to the hospital in August 2009. However, most other GAF scores have been consistently in the mid 50's, including upon discharge from his August 2009 hospitalization, with an occasional score of 51. GAF scores ranging between 51 to 60 are indicative of moderate symptoms (e.g., flat affect, 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 medical evaluations are consistent with the GAF scores listed. The Veteran's usual GAF score ranged somewhere in the middle 50's and the Veteran's symptoms are consistent with moderate impairment. There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue. The GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Given the actual psychiatric symptoms shown in this case, the level of overall psychiatric impairment shown is more consistent with a 50 percent rating. At some points, the Veteran's symptoms appear milder than at other times, and at some times, the symptoms appear more severe that at other times; but, overall, a moderate disability picture is shown. The Veteran's generalized anxiety disorder symptomatology has resulted in a disability picture that more nearly approximates the level of occupational and social impairment contemplated for a 50 percent rating under the applicable rating criteria. The criteria for the assignment of this 50 percent rating, but no higher, have been met during the entire appeal period, as there are no distinct time periods where the Veteran's symptoms warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Although it has been conceded that the Veteran's symptoms worsened in September 2007 and August 2009, the increase was situational, short-lived, and does not represent a "time period" of overall increase. Thus a staged rating for the two short periods of hospitalization is not warranted. Significantly, the Veteran was scheduled to appear for a VA psychiatric examination in March 2013 to assess the current nature and severity of the generalized anxiety disorder with depression. The record shows that the Veteran cancelled his examination indicating a refusal to report, without good cause shown. See Kyhn v. Shinseki, 24 Vet. App. 228 (2011) (Documentation indicating that VA procedure has been followed entitles VA to the presumption of regularity). Pursuant to 38 C.F.R. § 3.326(a) , individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. Nevertheless, as the Veteran has appeared for examinations in the past, the Board has adjudicated the case based upon the evidence of record. Finally, in exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The rating criteria contemplate the Veteran's service-connected generalized anxiety disorder with depression, which is productive of some occupational and social impairment, due to such symptoms as disturbances of motivation and mood; depressed mood, anxiety, chronic sleep impairment, and irritability. These symptoms are specifically contemplated by the rating criteria for rating generalized anxiety disorder and depression under the general rating formula for mental disorders under 38 C.F.R. § 4.130 Diagnostic Code 9400 (2012). The rating criteria are therefore adequate to evaluate the Veteran's service-connected generalized anxiety disorder with depression; and, referral for consideration of extraschedular rating is not warranted. For these reasons, the preponderance of the evidence is against the claim and a rating in excess of 50 percent for generalized anxiety disorder with depression is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. Significantly, however, the RO assigned an effective date of January 5, 2007 for the assignment of the 50 percent rating. This date was assigned because it was the first date on which it was factually ascertainable that an increase in severity occurred within a year of the filing of the Veteran's claim. However, additional VA mental health records dating back to October 2006 were associated with the claims file after the case was remanded in January 2013, and these records show that the Veteran was treated for increased anxiety and depression on December 29, 2006, similar to the symptoms noted in January 2007. The effective date for an increased rating is usually the date that the Veteran's claim for increased was received at the RO. However, if the evidence of record shows that an increase in disability occurred before the date of claim, the effective date of the increase will be the date that the increase was factually ascertainable, if this date is within the one year prior to the date of claim. If the increase in disability is factually ascertainable over one year before the Veteran files his claim for increase, than the effective date of the increase is the date of claim. The Veteran's claim for an increased rating for the generalized anxiety disorder with depression was received at the RO in May 2007. In light of recently obtained VA records, it is now factually ascertainable that an increase in disability occurred on December 29, 2006. As December 29, 2006 is within one year of the date of claim (May 2007), the appropriate effective date for the increased rating of 50 percent for the generalized anxiety disorder with depression is December 29, 2006. III. TDIU The record shows that the Veteran stopped working at some point during the appeal period. The Veteran has requested a TDIU. A request for a TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id at 455. The Veteran filed a separate TDIU claim that was received at the RO in April 2010. At a May 2010 VA examination, the examiner noted that the Veteran appeared to be doing well on medications, with GAF scores of 55 present recently. The examiner also noted the Veteran's August 2009 "crisis" when he was under increased stress due to ongoing problems with his supervisor at work. There was a one week suspension that "appeared to be rather unfair." The report also notes that the Veteran continued to work at the U.S. Postal Service where he had worked for about 28 years. He was in a managerial level, and he seemed to have functioned quite well in the workplace, putting in many hours. The Veteran reported during the interview that he was a professional with others at work and said that his employees loved him. The Veteran functioned quite well until he got the one particular supervisor who he believes is racist. After his one-week suspension in August 2009, the Veteran went back to work, he dealt with the situation adequately, and was coping better with regard to the supervisor even though she still gave him a hard time. The Veteran was able to ignore the problems sometimes, but he would get upset at times too. The Veteran decided to take a retirement to get away from all the stress. As a result he began using all of his sick leave and left-over vacation time. The examiner indicated that overall, the Veteran seemed to have functioned quite well at work for many, many years and until this one particular supervisor came on and creased a lot of increased stress and frustration. Therefore , the examiner opined that the Veteran has demonstrated a history of being able to work, and the Veteran's mental health symptoms do not make him unable to work. The problem with the one supervisor was more of a specific interpersonal difficulty with this one particular supervisor. The examiner concluded that the Veteran chose to go out of work after 27-28 years, and opined that the Veteran's mental health condition does not render him unemployable. The examiner reasoned that the Veteran demonstrated a good history of effective employment at a managerial level and described himself as professional and having his employees love him. The Veteran functioned quite well for many years and only more recently struggled at work related to a new supervisor, and has had interpersonal difficulties with her. Some of the descriptions suggest that her managerial style or other attitudes may be a factor in that problem as well. Overall, the problem with the supervisor did not appear to be a work problem, but rather, was an interpersonal problem specifically with this one supervisor and does not render him unemployable. Based on the above findings, the RO issued a rating decision denying a TDIU in November 2010. To the Board's knowledge, the Veteran did not appeal that decision. When the case was remanded in January 2013, the RO was directed to send the Veteran a duty-to-assist letter addressing the issue of a TDIU. The Veteran was asked to provide or identify any private treatment records that would support his claim; and, an examination was scheduled on his behalf. As noted above, the Veteran cancelled his examination without good cause. Based on 38 C.F.R. § 3.655, the Veteran's TDIU claim should be denied, as this claim is part of an increased rating; however, given the May 2010 examination report, the Board will adjudicate the claim. Regulations provide that a total disability rating based on individual unemployability is warranted when the evidence shows that the Veteran is precluded from obtaining or maintaining substantially gainful employment by reason of his service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). VA defined substantially gainful employment as "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides." See M21-MR, Part IV, Subpart ii, Chapter 2(F)(24)(d). Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment is not considered to be 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. 38 C.F.R. § 4.16(a) (2012). Total disability may or may not be permanent. Permanence of total disability exists when such impairment is reasonably certain to continue throughout the life of the disabled person. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. 38 C.F.R. § 3.340(b) (2012). Total disability ratings for compensation may be assigned, where 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The term unemployability is not synonymous with the terms unemployed and unemployable for the purposes of determining entitlement to TDIU. A veteran may be unemployed or unemployable for a variety of reasons, but a determination as to entitlement to TDIU is appropriate only when a veteran's unemployability is the result of a service-connected disability. See M21-MR, Part IV, Subpart ii, Chapter 2(F)(24)(c). The Veteran's service connected disabilities include residuals of an injury of the right elbow and forearm, rated as 70 percent disabling; generalized anxiety disorder with depression, rated as 50 percent disabling; hepatitis C, rated as 20 percent disabling; and scars of the thigh and the donor site, rated as noncompensable. The combined rating is 90 percent, and there is at least one disability rated at 60 percent or more. Thus, the only remaining question is whether the Veteran is unable to obtain or maintain substantially gainful employment due to his service-connected disabilities. According to the May 2010 examiner the Veteran's psychiatric disorder did not preclude employment because the Veteran's issue with his last supervisor was an interpersonal issue that was completely out of the norm from the rest of his employment history. The Veteran reported that when he was in a supervisory position, his employees loved him. He kept the same job at the Postal Service for nearly 30 years, and he retired by choice. In essence, the Veteran would have no problem working in his prior job if it weren't for his last supervisor. The Veteran's work history shows that he was able to work for nearly 30 years despite the service-connected residuals of the right elbow and forearm; and, that his hepatitis c also did not preclude his employment at the Postal Service. The record provides no additional evidence to suggest that the Veteran service-connected disabilities preclude all forms of gainful employment. The Veteran was scheduled to appear for a VA examination to address the issue, with consideration of all the service-connected disabilities; however, he refused to appear for such an examination. Thus, the Board has no choice but to deny the claim based on the current evidence of record. VA's duty to assist is not a one-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 191 (1991). For these reasons, the preponderance of the evidence is against the claim and a TDIU is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. (Continued on next page.) ORDER A 50 percent disability rating, but no higher, for generalized anxiety disorder with depression is granted for the period from December 29, 2006 to January 5, 2007. A disability rating in excess of 50 percent for generalized anxiety disorder with depression is denied. A TDIU is denied. ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs