Citation Nr: 1318822 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-34 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an evaluation higher than 30 percent for generalized anxiety disorder with depressive features. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from February 1972 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied entitlement to a compensable rating for anxiety neurosis and entitlement to a TDIU. In September 2009, the RO issued a rating decision granting an evaluation of 30 percent for the Veteran's service-connected psychiatric condition, effective May 20, 2008. Following this increase in compensation, the Veteran continued the appeal, seeking a higher schedular rating. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). The Board remanded this case in March 2012, and again in August 2012, most recently for a more comprehensive VA Compensation and Pension examination addressing the severity of service-connected psychiatric disability and the Veteran's employability in relation to that condition. The case is now back before the Board for an appellate disposition. FINDINGS OF FACT 1. The Veteran's generalized anxiety disorder involves occupational and social impairment with deficiencies in most areas. 2. Since May 20, 2008, the Veteran has been incapable of securing and maintaining substantially gainful employment due to his service-connected psychiatric disability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria are met to establish a 70 percent evaluation, but not higher, for generalized anxiety disorder, since May 20, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9400 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria are met for a TDIU, from May 20, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist the Claimant The Veterans Claims Assistance Act, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 CFR 3.159(b)(1) (2012). As indicated below, the Board is granting the benefit sought on appeal of entitlement to a TDIU. Hence, even assuming, without deciding, that any error was committed as to implementation of the VCAA's duty to notify and assist provisions, such error was harmless in its application to adjudication of this matter, and need not be further discussed. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). Meanwhile, the RO has informed the Veteran of what evidence would substantiate his claim for increased rating through VCAA correspondence dated in May 2008 that notified him as to each element of satisfactory notice. The VCAA notice further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, including that VA would undertake reasonable measures to assist in obtaining further VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The relevant notice information must have been timely sent. The U.S. Court of Appeals for Veterans Claims (Court) in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In this instance, the VCAA notice correspondence was issued prior to the July 2008 RO rating decision adjudicating the increased rating claim being decided, and therefore met the criteria for timely notice. The RO (including through the Appeals Management Center (AMC)) has taken appropriate action to comply with the duty to assist the Veteran through obtaining VA and private treatment records. The Veteran has also undergone several VA Compensation and Pension examinations. See 38 C.F.R. §4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). The RO/AMC further complied with the terms of the most recent Board remand by arranging for another VA examination, as well as requesting the Veteran's authorization to obtain additional medical records from those private treatment providers he had previously identified. The Veteran did not respond by identifying any further medical records requiring further VA assistance to obtain. In furtherance of his claim, the Veteran has provided private treatment records, and copies of lay statements from other individuals. The record as it stands includes sufficient competent evidence to decide the claim. Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claim being decided have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on the merits. Background and Analysis Increased Rating for Anxiety Disorder Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The VA rating schedule provides that psychiatric disorders other than eating disorders, including PTSD, are to be evaluated according to a General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating may be assigned where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessed rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms and manifestations listed under the above rating formula are not requirements for a particular evaluation, but are examples providing guidance as to the type and degree of severity of these symptoms. Consideration also must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Veteran filed the instant claim for increased rating in May 2008. In a May 2008 statement, Dr. J.A.J., the private psychiatrist treating the Veteran on a fee basis system for the San Juan VA Medical Center (VAMC), recounted the Veteran's history of psychiatric treatment in service, and observed that now the Veteran claimed he was not sleeping well, was anxious and secluded in his room, and had "death wishes." There were frequent crying episodes, with the likelihood to disappear, and low tolerance levels, aggression, lack of interest, anhedonia, poor concentration, and round the clock anxiety. There was very poor impulse control and poor insight. According to the psychiatrist, there was no question the Veteran was experiencing anxiety with severe depressive features. A VA Compensation and Pension examination was conducted in June 2009, at which time the Veteran reported having been under psychiatric treatment by VA for the previous 12 years. He described now having a depressed mood five to six times a day of a severe intensity since two to three years previously, with sleep difficulties described as problems with initiating and maintaining sleep every night of a mild to moderate severity since more than 10 years previous. He further described lack of interest in significant activities including regular exercise, of a moderate to severe intensity since four to five years previous, and social isolation from others since three to four years previous, along with crying bouts twice a week of a moderate severity since four to five years previous. On psychiatric evaluation, the Veteran was clean and casually dressed, psychomotor activity and speech were unremarkable, affect was appropriate, mood was depressed, attention and orientation were intact, thought process and content were unremarkable, and there were no delusions or hallucinations. Judgment and insight were present. There was sleep impairment which left the Veteran tired and without desire to do anything on the subsequent day. There was no inappropriate or ritualistic behavior, no panic attacks, and no suicidal or homicidal thoughts. Impulse control was good. There was not ability to maintain minimum personal hygiene, as the Veteran described forgetting to take a bath daily. There was no problem with activities of daily living. Immediate memory was mildly impaired, but otherwise there was no memory impairment. The Veteran was considered able to perform management of his financial affairs adequately on his own benefit. The Veteran was now unemployed over a period of one to two years, after he had sold a business because he no longer had the desire to run it. According to the VA examiner, the clinical history and psychiatric exam supported the Veteran's contention that his unemployment was an effect of his mental disorder. The diagnosis given was generalized anxiety disorder with depressive features. A Global Assessment of Functioning (GAF) score was assigned of 60. According to the examiner, while the Veteran did not have total occupational and social impairment, his mental disorder signs and symptoms had resulted in deficiencies in several essential areas (judgment, thinking, family relations, work, and mood). The November 2008 administrative decision of the Social Security Administration (SSA) indicates that the Veteran was deemed disabled effective January 3, 2008, due to the primary diagnosis of affective disorders, and secondary diagnosis of disorders of the back. In his follow-up April 2010 statement pertaining to the Veteran's condition, Dr. J.A.J. indicated that the Veteran was always found to be depressed, irritable, lonesome, and secluded in his room, with lack of interest in surroundings. The Veteran was easily upset, had no interpersonal relationships, felt worthless and hopeless, and had "death wishes" and suicidal ideation. There was also poor concentration and getting lost in his surroundings. According to the psychiatrist, the Veteran was chronically and permanently sick, impaired, and unlikely to improve. The Veteran was considered a real threat to himself, and considered to have no health industrial or social adaptabilities, and be in need of indefinite psychiatric treatment, with a prognosis that was poor. The Veteran underwent a two-week psychiatric hospitalization in October 2010 at a private facility. Records show an admitting diagnosis of major severe depression, with a GAF assigned of 40. There were presenting symptoms of anger, irritability, sadness, anxiety, negativism, pessimism, social isolation, and frequent crying. During the treatment process, various problems were identified such as managing free time, low tolerance for frustration, low self-esteem and poor management of anger. During the process he was in contact adequately enough and spoke with appropriate tone of voice. He had appropriate affect, and showed cooperation and attentiveness. On discharge, the GAF score assigned was raised to that of 67. Through his November 2010 correspondence, the Veteran alleged having had general signs and symptoms of anxiety disorder consisting of constant worrying about most kinds of matters, worry that lasted for long periods of time, problems handling and dealing with anxiety, irritability, tiredness most of the time, tense muscles, problems sleeping, restlessness, dizziness with upset stomach and trembling, and problems thinking and focusing. In their November 2010 lay statements, the Veteran's sister and mother indicated that the Veteran had serious mental health difficulties since his return from service, with considerable trouble adjusting to daily life, and needed considerable care and assistance from them. Another VA Compensation and Pension examination was completed in July 2011. The Veteran reported symptoms of crying spells, insomnia, death thoughts, social isolation, poor appetite, and irritability. According to the Veteran his symptoms were in crescendo, for a long time, and always present. The Veteran was on psychotropic medication. The Veteran lived alone and had someone to help him with household chores. According to the VA examiner, the Veteran "tried very hard to appear sicker than found on mental examination." During the interview the Veteran cried and asked the examiner to stop questioning. Upon objective evaluation, the Veteran was clean and casually dressed, psychomotor activity and speech were unremarkable, affect was appropriate, mood was anxious, attention was intact, orientation was intact, thought process and content were unremarkable, there were no hallucinations or delusions, and judgment and insight were present. There was no inappropriate or ritualistic behavior, or suicidal or homicidal thoughts. Impulse control was good. The Veteran appeared to manifest mild anxiety. There was ability to maintain minimum personal hygiene. Memory capability was normal. The diagnosis was generalized anxiety disorder, and the assigned GAF was 67. The VA examiner further commented that the Veteran was found with signs and symptoms compatible with generalized anxiety disorder. The Veteran reported insomnia, irritability, social isolation and anxious mood. He had lived a very successful social and occupational life. He married, had children and divorced. Returning from service he worked successfully for almost thirty years. He had retired in 2007, and began to face retirement problems. His actual mental condition was stable, chronic and persisting. This mental condition was not considered severe enough to preclude the Veteran from a gainful job. The Veteran's mental condition had remained stable, without hospitalizations, crisis, or psychosis. His generalized anxiety disorder was not considered sufficiently severe to warrant or prevent the Veteran from a gainful job. In the view of the VA examiner, the Veteran's mental condition was not in need of an increase. The Veteran was deemed to have mental disorder signs and symptoms that were transient or mild and decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. According to the examiner, the Veteran's mental condition was actually stable, chronic, and did not preclude him completely from a gainful job. Records of VA outpatient treatment show an August 2011 psychiatric consult on which the Veteran reported insomnia, loneliness, low self-esteem, poor concentration, low energy, insecurity, anticipatory anhedonia, and tearfulness. The diagnosis was major depression, and a GAF was assigned of 55. In his May 2012 statement, Dr. J.A.J. indicated that the Veteran continued with social isolation, and irritability, with low tolerance and frustration. He had lack of interest in his surroundings, with "death wishes," suicidal ideation, anxious thinking, and sense of worthlessness and hopelessness. The Veteran was not considered a candidate for vocational rehabilitation. He had "no healthy industrial or social capabilities." The Veteran was deemed unable to work. Overall prognosis was considered severely poor, and the Veteran was deemed a "real suicide risk." In August 2012, the Board remanded this case for a new VA medical examination, in part based upon finding that the July 2011 VA examiner's clinical history review did not consider either the Veteran's October 2010 psychiatric hospitalization records, or the continuing assessment reports from the Veteran's treatment psychiatric. On re-examination of October 2012, the diagnosis was initially confirmed of anxiety disorder, not otherwise specified (NOS). A GAF score was indicated of 80 to 85. The VA examiner summarized the level of occupational and social impairment as "a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication." The Veteran reported that his daily routine involved waking up early, visiting with friends and going to the beach, and going to sleep around early evening. He had not worked since selling his own restaurant one to two years ago, but planned to start a new business to supplement his income. Since the last examination in July 2011, he denied any occupational or educational history. He described being seen at a VA mental health clinical frequently, and remained under psychiatric treatment from Dr. J.A.J. The Veteran described social isolation, poor appetite, and irritability. He then claimed he did not like to go out of the house, with no reason given. There was no evidence of physical anxiety or depression. The Veteran was very calm and cooperative, making good eye contact, coherent and relevant. The only symptom objectively noted for evaluative purposes was anxiety. The Veteran was deemed capable of managing his financial affairs. The VA examiner further commented that the Veteran was found with signs and symptoms compatible with anxiety disorder, and the Veteran's mental condition had remained stable, without psychosis. In the view of the examiner, the Veteran's anxiety disorder was not sufficiently severe to warrant or prevent the Veteran from a gainful job. Having thoroughly reviewed the evidentiary findings in this case, the Board is satisfied to a reasonable degree of certainty that the criteria are met to assign an increased evaluation of 70 percent for the Veteran's anxiety disorder, since the May 20, 2008 date of claim for increase. Crucial to the Board's determination in this regard is the principle under VA law that reasonable doubt on a material issue be resolved in the claimant's favor. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Moreover, the evidence in this case reflects highly divergent assessments of the Veteran's level of psychiatric impairment, and with that in mind the Board has undertaken to duly consider the evidence in its entirety. See 38 C.F.R. § 4.2 ("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."). See also Ardison v. Brown, 6 Vet. App. 405, 407 (1994). To this effect, the Board places heavy emphasis upon the consistent and detailed treatment summaries from Dr. J.A.J., the Veteran's treating psychiatrist, which describe substantially more serious mental health symptomatology than that depicted in the more recent VA Compensation and Pension examination reports, namely, indications of pronounced mood disturbance, lack of industrial adaptability, and at times suicidal ideation. These components of service-connected disability clearly meet the criteria under VA law for assignment of a 70 percent evaluation pursuant to the rating schedule. See 38 C.F.R. § 4.130, Diagnostic Code 9400. The Board recognizes that not all the evidence is consistent in this case. The June 2011 VA examiner questioned in significant part whether the Veteran's more severe described symptoms were fully accurate representations of service-connected disability. In light of several substantive deficiencies with that examination, the Board's August 2012 remand directive was for a new examination. Unfortunately, the subsequent re-examination of October 2012 did not address all of the prior deficiencies, inasmuch as there is no direct indication that this examiner genuinely considered the Veteran's treating psychiatrists' summaries or two-week mental hospitalization from October 2010 as relevant factors in determining the level of disability. As a result, the Board cannot assign substantial probative value to the October 2012 examiner's relatively benign assessment of the Veteran's anxiety disorder, including assignment of a GAF score of 85. (Under the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) (DSM-IV-R), a GAF score in the 81 to 90 range reflects absent or minimal symptoms, good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members)). As well, the preceding VA examination of June 2009 appeared to acknowledge the Veteran's more severe symptoms and found there to manifest occupational and social impairment with deficiencies in most areas. Therefore, the Veteran's symptomatology overall best approximates the criteria for a 70 percent evaluation. The basis for this increase in rating having been elucidated, the Board does not find that any further increase is warrant to the maximum schedular rating of 100 percent. The Veteran has not demonstrated those constituent signs and symptoms generally associated with a 100 percent evaluation under the rating criteria, such 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; or memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. Moreover, the evidence does not support a finding of total social impairment. The May 2012 statement of the Veteran's treating psychiatrist that the Veteran had no healthy social capabilities is not found to be persuasive, as it is contradicted by the Veteran's own statements. On VA examination in October 2012, the Veteran reported that his daily routine involved visiting with friends and going to the beach. To the extent the Veteran has been found to have substantial occupational impairment with "no industrial capacity" as stated by a treating psychiatrist, this fact has been accounted for in the award below of a TDIU. Accordingly, a 70 percent schedular evaluation, and not higher, is granted, from May 20, 2008 onwards. TDIU Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, when the disabled person is unable to secure and maintain substantially gainful employment because of the severity of his service-connected disabilities. If there is only one such disability, it must be rated as at least 60 percent disabling. Whereas, if there are two or more disabilities, at least one must be rated as at least 40 percent disabling and there must be sufficient additional service-connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.15, 4.16(a) (2012). Disabilities resulting from common etiology or single accident or affecting both upper and lower extremities are considered as one collective disability for the purpose of determining whether these threshold minimum rating requirements are met. Provided a claimant does not meet these minimum percentage rating requirements of § 4.16(a) for consideration of a TDIU, he may still be entitled to this benefit on an extra-schedular basis under § 4.16(b) if it is established he is indeed unemployable on account of his service-connected disabilities. The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is "[in]capable of performing the physical and mental acts required by employment," and is not based solely on whether he is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rather, the record must demonstrate some factor that takes his situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id. See also 38 C.F.R. §§ 4.1, 4.15. In evaluating a claim for a TDIU, the critical inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to cause unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration include his employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). By comparison, the impact of any nonservice-connected disabilities, or his advancing age, are not factors taken into consideration for this purpose. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In addition, "marginal employment" shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). See Faust v. West, 13 Vet. App. 342, 355 (2000). Rather, the U.S. Court of Appeals for Veterans Claims (Court) has accepted the definition of substantially gainful employment as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991), citing to VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (December 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09). See also Ferraro, 1 Vet. App. at 332 (determining that substantially gainful employment suggests "a living wage"). Preliminarily, the Veteran now meets the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a), by way of his adjudicated 70 percent evaluation for generalized anxiety disorder, with depressive features. This meets the initial schedular TDIU criterion of a single disability ratable at 60 percent. Consequently, the remaining dispositive issue is whether the Veteran is incapable of securing and maintaining substantially gainful employment due to service-connected disability. Given the evidence of record, the Board further concludes that the Veteran is effectively unemployable by reason of service-connected psychiatric disability. The May 2012 statement of the Veteran's treating psychiatrist found that the Veteran was unable to work as the result of psychiatric impairment, and added that the Veteran had no healthy industrial capabilities. Whereas there are contrasting assessments on employability provided by the two most recent VA examiners, as mentioned, the Board cannot ascribe full probative weight to these opinions inasmuch as the examiners apparently did not conduct a thorough clinical history review which substantiated a more in-depth mental health treatment course than that initially thought. On these grounds, therefore, the evidence is at least in relative equipoise on the subject of the Veteran's employability due to service-connected disability -- with that weighing in favor of the Veteran's claim roughly evenly balanced with that preponderating against it. Under such circumstances, the benefit-of-the-doubt rule warrants an outcome favorable to the claim. See 38 C.F.R. § 4.3. For these reasons, a TDIU effective May 20, 2008 is granted. ORDER A 70 percent evaluation for generalized anxiety disorder with depressive features effective May 20, 2008 is granted, subject to the law and regulations governing the payment of VA compensation benefits. A TDIU is granted, subject to the law and regulations governing the payment of VA compensation benefits. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs