Citation Nr: 1318281 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-06 921A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Evaluation of anxiety disorder, rated as 30 percent disabling from July 11, 1970 to June 21, 1999. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active service from November 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran and his wife testified before the undersigned Veterans Law Judge via videoconferencing technology in May 2010. A transcript of the hearing has been associated with the record. The Veteran and his wife testified at a hearing at the RO before a Decision Review Officer in July 2009; a transcript of that hearing is also included in the claims file. In an April 2009 substantive appeal and January 2013 letter, the Veteran specifically limited his appeal to the period prior to June 22, 1999. Therefore the Board will only discuss the issue of entitlement to a disability rating in excess of 10 percent prior to June 22, 1999, and will not address whether an increased schedular evaluation is warranted starting June 22, 1999. The Board notes that the Veteran has also claimed that if a higher disability rating was not warranted, then his total disability rating due to individual unemployability rating (TDIU) should be effective his date of separation from service. However, the Board notes that this issue was previously denied by the October 2002 Board decision and clear and unmistakable error of the October 2002 decision has not been alleged. Therefore, the issue of entitlement to an earlier effective date of TDIU is not on appeal. FINDING OF FACT The most credible evidence pertaining to the period prior to June 21, 1999, supports an evaluation of 50 percent for anxiety disorder CONCLUSION OF LAW Prior to June 21, 1999, the criteria for a disability evaluation of 50 percent, but no higher, for anxiety disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4 § 4.132, Diagnostic Codes (DCs) 9400 (in effect prior to 1996); 38 C.F.R. §§ 3.400, 4.130, DC 9400 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veterans Claims Assistance Act (VCAA) The VCAA describes VA's 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 representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In August 2004 the Veteran was advised of the evidence necessary to support his claim. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. On March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Id at 486. A March 2006 letter discussed the manner in which VA determines disability ratings and effective dates. Except as discussed below, the content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. Therefore, the record reflects that he was provided with a meaningful opportunity during the pendency of his appeal such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. In fact, the Board further finds that the Veteran and his representative have demonstrated actual knowledge of the pertinent requirements to substantiate the issues on appeal. It is particularly salient to the Board in this regard that during his Board hearing, the Veteran and his representative related in great detail why they believed he was entitled to a higher schedular rating during the period under consideration in this appeal. It is also clear from the lay statements provided by the Veteran and witnesses that they understood that they could understood the type of evidence that would be most helpful to his claim on appeal. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Based on the communications to the Veteran and the arguments raised by the Veteran and his representative, they have demonstrated actual knowledge of the requirements for substantiating the claims and it is reasonable to expect that the Veteran understands what is needed to prevail. Thus, the Board finds that no prejudice results in proceeding with adjudication of the Veteran's claim. As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claims that were lacking to substantiate the claims for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claims. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). With respect to VA's duty to assist, VA and private treatment records, to include those from the Social Security Administration (SSA), have been obtained and associated with the record. The medical evidence of record is sufficient for the purpose of determining the severity of the Veteran's disability prior to 1999. The Veteran has been afforded hearings before RO personnel and the undersigned. The Board notes that there is some indication that some pertinent treatment records are unavailable. The Veteran has been made aware of this development and has not submitted any additional private treatment records. The Board finds additional attempts to obtain the missing records would be futile. The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any additional outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Increased Rating - Anxiety Disorder Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). As noted above, the Veteran is rated at 30 percent prior to June 22, 1999, and at 70 percent from June 22, 1999, for his service-connected anxiety. The Veteran claims the 30 percent rating prior to June 22, 1999, does not accurately depict the severity of his condition during that time period. The RO has listed the Veteran's service-connected anxiety disorder as being rated under DC 9400 for all periods on appeal. Twice during the time frame of this appeal, effective February 3, 1988, and then again effective November 7, 1996, VA has revised the criteria for diagnosing and evaluating mental disorders. The Board will evaluate the Veteran's claim under all three sets of schedular criteria in the VA Schedule for Rating Disabilities and the current regulations in order to ascertain which version would accord him the highest rating. According to VAOPGCPREC 7-2003 (Nov. 19, 2003), in Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), the Federal Circuit overruled Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the extent it conflicts with the precedents of the United States Supreme Court (Supreme Court) and the Federal Circuit. Karnas is inconsistent with Supreme Court and Federal Circuit precedent insofar as Karnas provides that, when a statute or regulation changes while a claim is pending before VA or a court, whichever version of the statute or regulation is most favorable to the claimant will govern unless the statute or regulation clearly specifies otherwise. Accordingly, the rule adopted in Karnas no longer applies in determining whether a new statute or regulation applies to a pending claim. Id. However, none of the above cases or General Counsel Opinions specifically prohibits the application of a prior regulation to the period on or after the effective date of a new regulation. Thus, the rule that the Veteran is entitled to the most favorable of the versions of a regulation that was revised during his appeal allows application of the prior versions of the applicable DCs at 38 C.F.R. §§ 4.130 and 4.132 to the period on or after the effective dates of the new regulations. The effective date of any rating assigned under the revised schedular criteria may not be earlier than the effective date of that change; the Board must apply only the earlier version of the regulation for the period prior to the effective date of change. See VAOPGCPREC 3-2000; 38 U.S.C.A. § 5110(g) (West 2002 & Supp. 2012) (where compensation is awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue). Initially, the Board notes that 38 C.F.R. § 4.132, DC 9400, as in effect prior to February 3, 1988, provided for a noncompensable rating if there were neurotic symptoms which may somewhat adversely affect relationships with others but which do not cause impairment of working ability. See 38 C.F.R. § 4.132, DCs 9400 through 9406 (1965). A 30 percent rating was assigned for definite impairment in the ability to establish or maintain effective and wholesome relationships with people. The psychoneurotic symptoms resulted in such reduction in initiative, flexibility, efficiency and reliability levels as to produce considerable industrial impairment. A 50 percent rating was assigned when ability to establish or maintain effective or favorable relationships with people is substantially impaired. By reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels were so reduced as to result in severe industrial impairment. A 70 percent rating was assigned when ability to establish and maintain effective or favorable relationships with people was seriously impaired. The psychoneurotic symptoms were of such severity and persistence that there was pronounced impairment in the ability to obtain or retain employment. A 100 percent rating was assigned when the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community; when the individual had totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior; and when the individual was demonstrably unable to obtain or retain employment. Note (1) to the General Rating Formula for Psychoneurotic Disorders as in effect prior to November 7, 1996, provided that social impairment per se will not be used as the sole basis for any specific percentage evaluation, but was of value only in substantiating the degree of disability based on all of the findings. 38 C.F.R. § 4.132 (1995). Effective February 3, 1988, the schedular criteria to rate psychiatric disorders was revised. See 38 C.F.R. § 4.132, DCs 9400 through 9411 (1988); 53 Fed. Reg. 1441 (Jan 19, 1988). A 30 percent rating was assigned when there was definite impairment in the ability to establish or maintain effective and wholesome relationships with people, and psychoneurotic symptoms resulted in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. A 50 percent evaluation required that the Veteran's ability to establish or maintain effective or favorable relationships with people was considerably impaired. By reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels were so reduced as to result in considerable industrial impairment. A 70 percent evaluation required that the Veteran's ability to establish and maintain effective or favorable relationships with people was severely impaired. The psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. A 100 percent evaluation required the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community; totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior; or demonstrably unable to obtain or retain employment. 38 C.F.R. Part 4, DC 9400 to 9411 (1988). The terms "considerable" and "severe" in 38 C.F.R. § 4.132 were quantitative in nature. See Hood v. Brown, 4 Vet. App. 301, 303 (1993). VA's Office of General Counsel issued a precedent opinion concluding that "considerable" was to be construed as "rather large in extent or degree." See VAOPGCPREC 9-93. The Board is bound by this interpretation of the term "considerable." See 38 U.S.C.A. § 7104(c). Under the current criteria, effective from November 7, 1996, the General Rating Formula for Mental Disorders provides, in pertinent part: 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) . . . . . . . . 30 Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships . . . . . . . . . . . . . . . . . . . . . . . 50 Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or name . . . . . . . . . . . . . . . . . . . . . . . . . 100 38 C.F.R. § 4.130, DC 9400 (2012). Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the DC. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). Id. Additionally, a Global Assessment of Functioning (GAF) score is often used by treating examiners to reflect the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266 (1996). GAF scores ranging between 61 and 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. GAF scores ranging from 51 to 60 reflect 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 ranging from 41 to 50 reflect 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). See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). Factual Background In this case, the Veteran's service medical records reveal that he was diagnosed with a chronic anxiety neurosis in 1970 and was discharged from service on July 10, 1970. In a June 1970 in-service psychological evaluation, the examiner noted that the Veteran was so anxious the week before traveling to Thailand that he was given tranquilizing medication. On his first day on the job in Thailand, the Veteran experienced difficulty in his work. He became both anxious and depressed about his inability to perform his job. He admitted to suicidal ideation. The Veteran was sent by supervisors for evaluation and temporary hospitalization. For several months, the Veteran had considerable anxiety about his job. He was noted to frequently tremble, have problem with eating and sleeping, and that in general he is unable to relax. Upon mental status evaluation, the examiner noted the Veteran was quite anxious with increased psychomotor activity and tremulous fingers. His flow of thought was normal, and his mood was one of anxiety with some depressive features. His affect was appropriate but quite constricted. The content of thought showed elements of loneliness and isolation. The Veteran felt as though many people were against him and that no one cared about him. Sensorium and intellectual responses were generally intact. Both his insight and judgment were poor. During hospitalization, the Veteran improved considerably such as he was able to make realistic plans concerning his future. The final diagnosis was anxiety neurosis, chronic, with acute exacerbation, severe, manifested by inability to perform at work, restlessness, tremor, sleep disturbances, and decreased appetite. These symptoms essentially resolved during hospitalization. During a January 1971 VA examination, the Veteran complained that he becomes irritable and jumpy sometimes and that he occasionally feels as if people are looking at him when he walks down the street. The examiner noted he has long hair, an odd appearing coat, and rather untidy Levis which would attract attention. Upon mental status examination, the examiner noted that his appearance was untidy but clean. He carried on a relevant and coherent conversation and it appeared that he has above average intelligence. He has recurrent feelings of hostility based not upon anxiety reaction but upon the basic passive aggressive personality traits that were developed after he left the custody of his mother. There were no delusions or hallucinations. There were definite ideas of reference which were easily stirred up and he did not seem to respond to the idea that he should be taking medication or at least attend a mental hygiene clinic. Insight was lacking, but he was competent to handle his own funds. Diagnoses were passive aggressive personality, moderately severe with acting out with excess alcohol intake, recurrent; and chronic mild anxiety reaction manifested by tension, irritability, and restlessness. In an October 1971 statement, the Veteran reported he has been apprehensive, fearful of making mistakes, and of being with strangers. He also reported he is much more nervous than before service. In a May 1977 private treatment record, the Veteran was seen for intermittent tightening in the abdomen. The Veteran was working in the Babbitt Mine with huge trucks when he recently developed some fear because of an incident where one of the trucks with 100 tons of iron almost tipped over. What he described was a tight queasy feeling when he gets up in the big truck. If he can get his mind off the fear, or if he takes Donnatal, the symptoms will go away. It has only been intermittently present and does not interfere with his work. A Social Security Administration (SSA) determination dated in January 2002 referred to a number of medical records dated from August 1979 to February 1980 that were later determined unavailable to the Board. The SSA determination referred to an August 1979 Range Area Human Resources Board note in which the Veteran complained of anger problems related to his ex-wife. He reported he would become so angry at her that he threw her around on several occasions. The examiner noted that the Veteran seemed to relate in an easy manner and enjoyed the opportunity to discuss his situation. He showed insight into his problem and he was able to recognize that his wife will probably always be closer to her family and his anger will not help change this. An MMPI was done in September 1979, and noted that the Veteran was having problem that are undoubtedly associated with his personality and his interpersonal relationships. The Veteran mentioned moving out of the area but the salary he earned at Reserve was a strong attraction to staying there. Two weeks later, the Veteran mentioned that he sometimes had a problem with paranoia. He reported he has only one or two good friends and felt caught in the area due to his children. He was always shy and did not care to be around a lot of people. The social worker opined that the Veteran was more unhappy than truly paranoid and that he also has a tendency to allow things to drift to a point where things are much worse than they should be. The Veteran was not seen again until February 1980. At that time said he was having a problem with his temper again. He reported he was able to control his anger at work and in the community but found it difficult to do so when attempting to relate to his ex-wife. A termination note was written in June 1980 indicting that the Veteran's goals had been partially met. He was only having mild problems functioning; motivation for therapy was only a mild problem; and that overall the Veteran's problem was mild. According to a July 1987 report from Human Development Center (HDC), the Veteran complained of depression, worsened over the previous two months. He complained largely of irritability, restlessness, decreased energy and interest, and anger as well as depression. The examiner noted that his testing shows his depressive symptomatology to be rather low, although on the Beck test he was rather defensive and was trying to present things in an optimistic and perhaps overly positive way. He rates both his depression and anxiety at 9/10 for the past six months precipitated by marital problems and his lack of income. Upon mental status assessment, the Veteran was neat, clean, and appropriately dressed. He provided relevant information in an organized manner. He denied auditory or visual hallucinations, past and present. There was no evidence of psychosis. It was felt that the Veteran's mood disorder was severe enough to merit a trail of an antidepressant. The assigned GAF score was 50, and the general appraisal of the client's situation was marked severe. An October 1987 report from HDC reveals that the Veteran had a major depressive disorder and elements of post-traumatic stress disorder (PTSD). In an October 1987 private treatment record, the Veteran reported he got very little response from his new medication, other than improvement in his sleep. He complained he has been blowing up more frequently, especially with his wife. He also went for a job interview but this did not work out. In an October 1992 statement, the Veteran asserted he is unable to work because of his anxiety. In VA progress notes dated from January 1995 to June 1996, the Veteran reported back pain and chest pain. The examiners noted a diagnosis of anxiety nervousa. In the June 1996 progress note, the examiner noted he was pleasant, well-rounded, and oriented times three. The examiner further noted he needed a consultation with mental health. In a mental health noted the same day, the Veteran reported he has a history of anxiety dating to his time in service. He described anxiety as he "cannot get jobs done fast enough." The examiner noted he received treatment at the Human Development Center (HDC) from 1984 to 1985 and Range Mental Health Center in Virginia. He denied suicidal or homicidal thoughts. The SSA determination discussed the Veteran's work history, noting that he had been substantially gainfully employed through July 1980 as a heavy equipment operator. It was observed that he had provided several explanations as to why he left that job, first reporting that it had shut down, later reporting that he had experienced panic attacks and other psychological problems that caused him to leave, and also indicating on at least one occasion that it was due to a back injury sustained on the job. The SSA determination explained that he then held a number of short-term jobs that involved temporary labor to fill in for others, but that beginning in early 1995 and continuing through 1996, he worked as a janitor for a church. SSA noted contradictory statements in the record as to the circumstances of his employment there. For example, it was noted that he had recently indicated that the church was very tolerant of his mood swings and tried to do him a favor as they knew he was a Vietnam veteran struggling with stress. However, statements the Veteran made to his treating doctors in 1996 showed that he reported experiencing anxiety and anger at work. VA treatment records dated from June 1996 to August 1999 reveal continued psychiatric problems. An anxiety disorder was diagnosed in August 1996, at which time the Veteran was working as a custodian at a local school and church. At that time the Veteran complained of increasing anxiety at his current job and difficulty with anger. He reported he feels ordered around and picked upon by other staff members. He was upset, fearful, and angry because the work is part time and there are no benefits. He also complained the job situation is making him increasingly angry, tense, and nervous. The examiner noted that his anxiety centered more on interpersonal conflicts and threats to self esteem than about fears of equipment malfunction. Upon mental status evaluation, he was chronically tense, in near continuous motion, and spoke somewhat rapidly. He showed no evidence of flight of ideas, or thought blocking. His mood was dysphoric and anxious, but he showed no evidence of any thought disorder. He had good insight and judgment. He denied any homicidal or suicidal ideation, intent, or plan. The diagnosis was anxiety disorder, probably generalized. The GAF score assigned was 55-60. It was noted in December 1996 that the Veteran reported doing well; he was working as a minister full time and quit his previous job which was his main source of stress. In an April 1997 VA progress note, the Veteran reported he was working in a basement and his shoulder and arms ache. In a July 1998 VA progress note, the Veteran reported his main concern is why people do not make eye contact with him. He was introspective, thoughtful, and denied depression and anxiety symptoms. The Veteran reported he sleep and eats well. He had no suicidal or homicidal ideations or intent. He was interested in treatment to look at how he handles relationships with others. Upon mental status examination, the examiner noted he had positive effect, without evidence of thought disorder or psychosis. During an October 1998 follow-up, the Veteran complained of anxiety and knots in his stomach. He reported he is a minister of South Range Church and feels people do not understand him and will not look at him in the eye. He denied use of alcohol since 1970, and reported he sleep well at night. He denied suicidal or homicidal ideation. He complained of irritability and violent dreams. He also denied any psychotic symptoms or manic episodes. In a November 1998 VA progress note, the Veteran complained of depression. The examiner noted his affect was automated, but engaging. The Veteran denied suicidal or homicidal ideation and delusions. Depression and obsessive compulsive personality were diagnosed in November 1998 and in January and August 1999. In a November 1998 letter, the Veteran reported he is continually trying to get a job or sell personal belongings to pay basic bills and keep the household operating. He reported he was better financially in the summer months. Vet Center records from July 1998 to September 1999 also reveal treatment for psychiatric problems. In an October 1998 treatment record, the Veteran denied suicidal and homicidal intent and complained of irritability and violent dreams. He denied any psychotic symptoms and manic episodes. In a February 1999 letter from the Veteran's wife, she reported that the Veteran has an overall sense of dread and foreboding concerning life in general and his life in particular. She reported he spends a great deal of time down, depressed, and in bondage to many fears. She reported he has daily bouts with suspicion and mistrust. She also reported that though he does sleep 10 hours a night, it is not restful. She reported that when under a pressure, the Veteran will get nervous, impatient, anxious, taut, and agitated. The Veteran has difficulties in crowds, and will have times when he can go from fine into a rage quickly. When faced with something new, it is almost impossible for the Veteran to cope. She also reported good days, where his outlooks are unrealistically optimistic and positive. When examined by VA in February 1999, the Veteran was out of work. On mental status examination, he was reasonably neat in appearance. He was oriented, alert, and cooperative. His speech was normal in mechanics and content, reflecting the affect, and his associations were coherent and relevant. His affect was somewhat constricted. There was a history of ideas of reference but no hallucinations or delusions. He appeared to the examiner more anxious than depressed. The Veteran reported he has suicidal impulses when he was drinking, but not currently, and he denied tearfulness. The diagnoses were generalized anxiety disorder and history of polydrug abuse, with the polydrug abuse in remission since 1980; passive-aggressive personality disorder. The assigned GAF score was 65. According to a June 22, 1999 statement and medical report from M.J.M., Ph.D., the Veteran was appropriately groomed and oriented with cooperative, intense and anxious manner, average intelligence, occasionally pressured speech, normal memory with interference from depression and anxiety, intense to flat affect, normal motor activity, and judgment impaired by emotional conflicts. The examiner noted he admitted to having some delusions during a stressful period of drinking and while his marriage was breaking up in the 1970s, but denied disorganized thinking and hallucinations. The examiner further noted improved sleep with medication. It was noted that the Veteran was unable to hold a job and was unlikely to hold a regular job on a consistent basis for more than a few weeks at a time primarily due to his generalized anxiety disorder. In an October 1999 statement, the Veteran complained of daily anxiety, nervousness, and inability to go into crowds because of paranoia and fears that he will do something which will cost him his life. Several times weekly he has panic attacks and nightmares. The Veteran reported that after leaving the service, he bounced from one job to another for the first few months. In 1971, he worked for several months at Boundary Forest Products, and, in 1972, he worked for several months at Viking Explosives. Each time it became too much for him to continue due to anxiety, nervousness, fears and panic and he would just get a new job. In 1973, he worked for Reserve mining until 1980 when he could no longer perform his duties. He reported he resigned because every day he felt he was going to die. He reported he missed a great deal of work and was finally asked whether or not he really wanted to work there. He was prescribed Donnatal, a medication for stomach cramping, at that time. He also worked in 1995 at Cathedral School as a custodian. He reported he quit due to anxiety, explosive anger, and nagging lower back pain. The Veteran reported he felt he could no longer continue in a blue color job due to back pain and anxiety and outbursts of anger. He worked a few other jobs, but he could not maintain employment. He reported he has not been able to establish and maintain an effective work or social relationship which ends in unemployment in social relationships and divorce from his first marriage. According to a January 2000 statement from M.J.M., Ph.D., the Veteran's anxiety, rigidity, and anger have prevented him from having steady employment for over twenty years. The Veteran was not considered likely to be able to find and keep steady employment in the foreseeable future, primarily because of his psychological disorder. In a February 2001 letter, M. M., Ph.D., reported that the Veteran has been seen for counseling off and on since October 1996. His anger and anxiety make it impossible for the Veteran to have normal social interactions. His has no satisfying or enduring social relationships and his inability to socialize normally also makes it impossible for him to hold any kind of regular, consistent employment. The psychologist noted he is unlikely to obtain employment due to his anxious, angry, and stern demander would not allow him to be hired in the first place. He may be able to hold solitary jobs for a few weeks at a time, but will lose those as a result of his anger and anxiety. His activities of daily living, if he were outside the supportive environment provided by his wife, would be highly variable, and frequently limited to a marked degree. His ability to understand and follow instructions and to respond appropriately to criticism from supervisors is markedly limited. He has been disabled by these symptoms at least since December 1989. In an April 2002 letter, M. M., Ph.D., reported that the Veteran's symptoms included very strict and conservative religiosity, chronic anger and rage at the loose morals and practices of the society around him, and chronic anxiety about how others perceive him and about why the people in his life do not like and respect him more. In his professional opinion, these symptoms were and continue now to be so severe as to totally disable him both industrially and socially. He cannot relate to others effectively except episodically and very briefly, and this is primarily by remaining silent. His diagnosis began as depression, but later became generalized anxiety disorder and PTSD. The Veteran submitted multiple statements asserting that he quit many jobs over the years due to this service-connected anxiety disorder. In an October 2003 statement, the Veteran reported a history of angry outbursts dating back to separation from service. He reported he had been kicked out of his aunt's home, moved multiple times, and worked "menial" jobs such as dishwashing. In the early 1970s, the Veteran got married and his wife was soon to have his first child. He worked in an explosives plant and at a sawmill making pallets, and a mine driving a truck for six and a half years. He stated he drank and used marijuana to get through the work day. He reported he eventually divorced due to physical abuse, drunkenness, encounters with the police, and anxiety. He moved again, and every attempt at employment was unsuccessful. He would get a series of short term jobs through the years to survive. He joined the church but continued to experience nervousness and anxiety. The Veteran reported he held multiple jobs, quitting each of them due to his anxiety. He tried to go back to school but failed in October 1983. After that he tried a few other jobs, or selling what he owned until 1996 when he started taking his wife with him to the various jobs and to school. He reported he was able to have some degree of success in working together. He reported he received his VA disability in 1998 and had no more to respond to. During a July 2009 DRO hearing, the Veteran testified as to the traumatic incidents of his active service. Analysis After a careful review of the record and for the reasons and bases expressed immediately below, the Board finds that the Veteran's demonstrated anxiety disorder symptomatology warrants an evaluation of 50 percent, but no greater, under all potentially applicable iterations of Diagnostic Codes prior to June 22, 1999. See 38 C.F.R. § 4.7. In reaching that decision, the Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. As discussed in more detail above, the symptoms prior to June 21, 1999 are substantially consistent. For this reason, further staged ratings are not applicable. See Hart, 21 Vet. App. at 505. In this regard and as included in both of the old rating criteria, the Board concludes that substantially impaired commensurate with a 50 percent disability, but no higher, is shown by the evidence of record. During this time, the Veteran clearly showed substantially impaired ability to establish or maintain effective or favorable relationships with people, and industrial impairment. However, the Veteran did not exhibit objective findings of serious or severe impairment in the ability to establish or maintain effective or favorable relationship with people, or severe industrial impairment which would warrant a 70 percent disability rating. The Board clearly recognizes the difficulties the Veteran has with interpersonal relationships. However, a January 1971 VA examination included a diagnosis of only mild anxiety reaction. An MMPI was done in September 1979, and noted that the Veteran was having problem that are undoubtedly associated with his personality and his interpersonal relationships. Later, he reported he did not want to leave his area has he has one or two good friends and relationships with his children. In February 1980, he was having a problem with his temper again and reported he was able to control his anger at work and in the community but found it difficult to do so when attempting to relate to his ex-wife. He was only having mild problems functioning; motivation for therapy was only a mild problem; and that overall the Veteran's problem was mild. Although the Veteran's first marriage did end, the Veteran would eventually remarry and has been married to his current wife for more than 10 years. The Board finds that the evidence does not establish serious or severe impairment in the ability to establish or maintain effective or favorable relationships with people. Turning to functional impairment, a May 1977 private treatment record indicated the Veteran has stomach pain due to anxiety that is intermittent and does not interfere with his work, and according SSA records, in a June 1980 note, the examiner noted the Veteran had only mild functional problems. The Board recognizes that the Veteran reported having to leave his longest held job in 1980 due to psychological problems. However, given contrary statements made in the record regarding the circumstances under which he left that job, the Board must find this assertion lacking in credibility. Furthermore, the overall record reflects that the Veteran held at least four jobs (the trucking company, remodeling a resort, janitor, and explosives company) lasting for more than a year prior to July 1999. Although the Veteran has claimed these were unsuccessful employment attempts, the Board agrees with the SSA determination that the time spent employed at each position clearly indicates an ability to maintain long-term employment. The Board recognizes the Veteran lists of employment situations submitted by the Veteran that lasted only a few weeks, and the Board understands these multiple short-term employment situations to show significant functional problems. However, the Board does not find that these warrant a finding of severe industrial impairment warranting a higher 70 disability rating. The Board finds all of these records are consistent with the 50 percent assigned rating. The Board notes that the July 1987 private treatment record which included an assessment as severe, however, this finding is not consistent with the mental status examination which noted the Veteran as neat and clean, without hallucinations or psychosis. The Board recognizes that the Veteran and his wife have testified that his symptoms were always severe and that he was always seriously affected by his anxiety disorder. The Board has considered every one of the Veteran's statements and those of his wife. Nevertheless, the Board gives greater credence and weight to the contemporaneous medical records and lay statements filed in this matter than to the more recent assertions of continuous severe symptoms from 1970. The Board has considered the multiple medical opinions regarding the Veteran's symptomatology from Dr. M., who appeared to assert that the Veteran has been totally unable to work due to his anxiety disorder from 1989 to present. However, the Board finds that the 2001 opinion letters of Dr. M. are less compelling than the contemporaneous clinical records and examination results dated during the period from 1989 to 1999. For example, in June 1996 progress note, the examiner noted that the Veteran was pleasant, well-rounded, and oriented times three. An anxiety disorder was diagnosed in August 1996, at which time the Veteran was working as a custodian at a local school. At that time the Veteran complained of increasing anxiety at his current job and difficulty with anger. However, he showed no evidence of flight of ideas, or thought blocking. His mood was dysphoric and anxious, but he showed no evidence of any thought disorder. He had good insight and judgment. He denied any homicidal or suicidal ideation, intent, or plan. The diagnosis was anxiety disorder, probably generalized. The GAF score assigned was 55-60. It was noted in December 1996 that the Veteran reported doing well; he was working as a minister full time and quit his previous job which was his main source of stress. In an April 1997 VA progress note, the Veteran reported he was working in a basement and his shoulder and arms ache. In a July 1998 VA progress note, the Veteran reported his main concern is why people do not make eye contact with him. He was introspective, thoughtful, and denied depression and anxiety symptoms. The Veteran reported he slept and ate well. He had no suicidal or homicidal ideations or intent. Upon mental status examination, the examiner noted he had positive effect, without evidence of thought disorder or psychosis. During an October 1998 follow-up, the Veteran complained of anxiety and knots in his stomach. He reported he was still working as a minister and felt people do not understand him and would not look at him in the eye. He denied use of alcohol since 1970, and reported he sleep well at night. He denied suicidal or homicidal ideation. He complained of irritability and violent dreams. He also denied any psychotic symptoms or manic episodes. In a November 1998 VA progress note, the Veteran complained of depression. The examiner noted his affect was automated, but engaging. The Veteran denied suicidal or homicidal ideation and delusions. In a November 1998 letter, the Veteran reported he was continually trying to get a job or sell personal belongings to pay basic bills and keep the household operating. When examined by VA in February 1999, the Veteran was out of work. However, on mental status examination, he was reasonably neat in appearance. He was oriented, alert, and cooperative. His speech was normal in mechanics and content, reflecting the affect, and his associations were coherent and relevant. His affect was somewhat constricted. There was a history of ideas of reference but no hallucinations or delusions. He appeared to the examiner more anxious than depressed. The Veteran reported he has suicidal impulses when he was drinking, but not currently, and he denied tearfulness. The diagnoses were generalized anxiety disorder and history of polydrug abuse, with the polydrug abuse in remission since 1980; passive-aggressive personality disorder. The assigned GAF score was 65. The Board does not deny that the Veteran experienced significant social and occupational impairment prior to June 21, 1999. However, given the overall record, the Board finds that the degree of impairment is contemplated by a 50 percent rating and no more prior to June 21, 1999. As discussed, the evidence does not demonstrate gross impairment with thought processes or communication; rather, the Veteran's thought content and communication have repeatedly been found to be within normal limits. He does not display delusions or hallucinations, grossly inappropriate behavior, or an intermittent inability to perform activities of daily living. He has not been found to be in persistent danger of hurting himself or others. He is oriented, and his memory is good. During that period, the Veteran's GAF score was assessed at worst, as 50, which does indicates serious symptoms. However, the overall disability picture does not more nearly approximate the criteria for a schedular evaluation of 70 percent. The Board accepts that the Veteran's anxiety disorder impacts his interpersonal and occupational relationships. The Veteran, however, manifested few symptoms associated with 100 percent rating under any of the applicable rating criteria. In that regard, the Veteran does not demonstrate that all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; does not exhibit totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior; is not demonstrably unable to obtain or retain employment; and does not show total occupational and social impairment. As discussed, the Veteran retains a strong relationship with his wife. Indeed, on multiple occasions the Veteran has indicated that without his wife he would be homeless and on the street. While the Veteran does demonstrate some social difficulty with non-family members, the medical records do not demonstrate that he is unable to function in most social situations. Thus, a 100 percent rating under any of the applicable Diagnostic Codes is not warranted. As noted above, a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan, 16 Vet. App. at 442. The Board is to consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. If the evidence demonstrates that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the Diagnostic Code, the appropriate equivalent rating should be assigned. Id. In determining that a rating in excess of 50 percent prior to June 22, 1999 is not warranted, the Board has considered the Veteran's complaints regardless of whether they are listed in the rating criteria. In light of the above discussion, therefore, the Board concludes that for the period in question, an evaluation in excess of 50 percent for anxiety disorder prior to June 22, 1999 is not warranted. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Extraschedular Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as 'governing norms.' Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected anxiety disorder is inadequate. A comparison between the level of severity and symptomatology of the Veteran's anxiety disorder with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, prior to June 22, 1999, the evidence demonstrates symptoms including difficulty sleeping, feelings of anger, depression, irritability, and some impairment of relationships with others, as well impaired impulse control, and difficulty adapting to stressful situations. The current 50 percent rating under Diagnostic Code 9400 prior to June 22, 1999, contemplate these and other psychiatric symptoms. Thus, the Veteran's current schedular rating under Diagnostic Code 9400 is adequate to fully compensate him for his disability on appeal. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER An initial evaluation of anxiety disorder rated as 50 percent disabling, but no higher, from July 11, 1970 to June 21, 1999, is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs