Citation Nr: 1319152 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 08-10 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a heart disorder, to include as secondary to service-connected Lyme disease. 2. Prior to March 31, 2009, entitlement to an evaluation in excess of 10 percent for anxiety disorder. 3. From March 31, 2009, to April 16, 2012, entitlement to an evaluation in excess of 30 percent for anxiety disorder. ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1978 to August 1992. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which in relevant part, determined that new and material evidence had not been received to reopen a claim of entitlement to service connection for a heart disorder, and continued a 10 percent disability evaluation for anxiety disorder. In March 2012, having determined that new and material evidence sufficient to reopen the claim for service connection for a heart disorder had been received, the Board remanded the issues currently on appeal for further development which has been completed. The case has been returned to the Board for appellate consideration. During the pendency of this appeal, in a May 2009 Supplemental Statement of the Case (SSOC), the RO increased the disability evaluation for anxiety disorder to 30 percent disabling effective March 31, 2009. Subsequently, in a February 2013 rating decision, the Appeals Management Center (AMC) further increased the disability evaluation for anxiety disorder to 100 percent disabling effective April 17, 2012. Since the RO did not assign the maximum disability rating possible prior to April 17, 2012, the appeal for a higher disability evaluation prior to the grant of 100 percent remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (noting that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit does not abrogate the pending appeal). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. FINDINGS OF FACT 1. The Veteran does not have a currently diagnosed heart disorder. 2. Prior to December 29, 2005, the Veteran's anxiety disorder was not manifested by anxiety or depression. 3. From December 29, 2005, to March 30, 2009, the Veteran's anxiety disorder was manifested by sleep problems, anxiety, social isolation, limited interest/activities, inability to work due to his anxiety, and marginal insight and judgment. 4. From March 31, 2009, to April 16, 2012, the Veteran's anxiety disorder was manifested by increased panic attacks, sleep impairment, poor concentration, disturbance of mood, inability to deal with stress, impaired affect, memory and concentration problems, social isolation, and inability to work due to severe anxiety and poor concentration. CONCLUSIONS OF LAW 1. A heart disorder was not incurred in or aggravated by active service, may not be presumed to have been incurred therein, and is not proximately due to a service-connected disorder. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. Prior to December 29, 2005, the criteria for an evaluation in excess of 10 percent for anxiety disorder are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.130, Diagnostic Code 9400 (2012). 3. From December 29, 2005, to March 30, 2009, the criteria for a 30 percent disability evaluation, but not higher, for anxiety disorder are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.130, Diagnostic Code 9400 (2012). 4. From March 31, 2009, to April 16, 2012, the criteria for a 50 percent disability evaluation, but not higher, for anxiety disorder are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.130, Diagnostic Code 9400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall Considerations As noted above, the Board remanded this matter in March 2012. The Board specifically instructed the AMC to provide the Veteran with examinations for both of his claimed disabilities and to readjudicate the claims. Pursuant to the remand, the Veteran was afforded examinations in April 2012 and his claims were readjudicated in an October 2012 SSOC. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in June 2005 and September 2005, prior to the February 2006 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The June 2005 letter informed the Veteran that in order to establish a higher rating, the evidence would need to show that his anxiety disorder had increased in severity. Additionally, various letters dated in July 2008 letter notified the Veteran of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claims were subsequently readjudicated in various SSOC's, most recently in October 2012. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). All identified and available service and post-service treatment records have been secured. Also, the Veteran was provided VA examinations for his claims. Review of these examination reports reflect that cumulatively the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and provided sufficient information to evaluate the claims. The Board, therefore, concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. The Veteran has declined the opportunity to present testimony in support of his claims. Thus, the duties to notify and assist have been met. Heart Disorder The Veteran essentially contends that he has a current heart disorder due to his service-connected Lyme disease. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a cardiovascular disease becomes manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). This presumption does not apply in the present case as there is no indication of a current heart disorder as discussed below. A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310 (2012). Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service. Establishing service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.303, 3.310 (2012). In this case, there is no evidence that the Veteran has a current heart disorder. In this regard, the Board notes that the pertinent evidence of record includes a March 2005 EKG report noting an abnormality. Additionally, the Veteran had maintained throughout the course of the appeal that he has hypertension and takes medication for treatment thereof. Noting the inconclusive evidence as to whether the Veteran had a heart disorder, the Board specifically remanded this issue to provide him with an examination in March 2012. In April 2012, the Veteran was provided an examination, the report of which reflects that the examiner reviewed the claims folder in conjunction with rendering an opinion. The examiner noted diagnosis of atypical chest pain in 2012 for which medication was not required; there was no history of myocardial infarction, congestive heart failure, cardiac arrhythmia, heart valve condition, syphilitic aortic aneurysm, or any non-surgical/surgical procedures for treatment for a heart condition. The Veteran had an infectious cardiac condition but did not undergo/is not currently undergoing treatment for an active infection. On evaluation, the examiner noted that heart rate was 60, rhythm was regular, point of maximal impact was the fourth intercostal space, and heart sounds were normal. There was no jugular-venous distention, auscultation of the lungs was clear, peripheral pulses were all normal, there was no peripheral edema, and blood pressure was 128/82. There was also no evidence of cardiac hypertrophy or cardiac dilation. Additionally, an EKG and chest X-ray (including a rib detail to rule out any other musculoskeletal cause of pain in the bony thorax) performed that day both reflected normal findings. METs testing was also performed with the results being greater than 7 to 10 METs which was consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging; this level of limitation was not solely due to the heart condition. Based on the extensive evaluation, the examiner found that there was no definable cardiac condition. The examiner acknowledged that the Veteran may have contracted Lyme disease during service but indicated that cardiac manifestation occurred in the early phase of the illness. He added that the overall prognosis of heart disorders related to Lyme disease was very good, although some complications may result but there was no indication of such in the Veteran's case. When assessing the probative value of a medical opinion, the access to the claims file and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further, a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet App 295, 304 (2008). In this case, as to the issue of whether the Veteran has a current heart disorder, the Board finds that the April 2012 VA examination report is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran's entire claims file, and in consideration of both the Veteran's reported history and the Board's remand directives. Significantly, the VA examiner's finding that there is no current heart disorder is consistent with the evidence of record. Notwithstanding the March 2005 EKG report showing some abnormality, there is no other indication of a disability in the record. Notably, the VA examiner reviewed the claims folder which included the 2005 report and concluded that there was no current disability. In this regard, the Board notes that it is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, the Board concludes that the VA opinion is found to carry significant weight. While the VA examiner noted the Veteran's complaints of chest pains, pain is not analogous to disability. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that pain alone without a diagnosed or identifiable underlying malady or condition did not constitute a disability for which service connection may be granted). Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, without a current diagnosis of a heart disorder, service connection is not warranted. In making all determinations, the Board has considered the lay assertions of record. In this regard, a layperson is competent to report his symptoms, e.g., chest pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board acknowledges that the Veteran is competent to testify as to his symptoms. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a diagnosis of a heart disorder. See 38 C.F.R. § 3.159 (a)(1) (2012) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the diagnosis of any current heart disorder as it is not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). For all of these reasons, the Board gives more credence and weight to the VA examiner's finding as it was rendered after an extensive medical evaluation of the Veteran, review of the Veteran's history, and consideration of medical principles by a licensed medical professional. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2002). Anxiety Disorder Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran seeks an increased rating for his service-connected anxiety disorder, currently evaluated as 10 percent disabling prior to March 31, 2009, and 30 percent disabling from March 31, 2009, to April 16, 2012, and 100 percent thereafter. The Board notes that in evaluating the Veteran's disability, the RO/AMC staged the disorder pursuant to Hart. The Veteran's disability has been evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9400. Diagnostic Code 9400 is deemed by the Board to be the most appropriate diagnostic code primarily because it pertains specifically to the diagnosed disability in the Veteran's case (generalized anxiety disorder). In any event, with the exception of eating disorders, all mental disorders including anxiety disorder are rated under the same criteria in the rating schedule. Therefore, rating under another diagnostic code would not produce a different result. Additionally, the Veteran has not requested that another diagnostic code should be used. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. See 38 C.F.R. § 4.126 (2012). Age may not be considered as a factor in evaluating a service-connected disability. 38 C.F.R. § 4.19 (2012). The pertinent provisions of 38 C.F.R. § 4.130 relating to rating psychiatric disabilities read as follows: A 10 percent disability rating is assigned for a psychiatric when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9400 (2012). A 30 percent disability rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is evidence of total occupational and social impairment due to 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; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In a recent case, the Federal Circuit indicated that when addressing the issue of a veteran's entitlement to a disability rating under 38 C.F.R. § 4.130, there must be an explicit finding as to how most of the enumerated areas are affected may be important, if not absolutely required. See Vazquez-Claudio v. Shinseki, 2012-7114 (Fed. Cir. Apr. 8, 2013). Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM- IV), p. 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126 (2012); VAOPGCPREC 10-95 (Mar. 1995); 60 Fed. Reg. 43186 (1995). A January 2005 VA treatment record showed that the Veteran was alert, oriented, verbal, coherent, friendly, and cooperative. He was not anxious or depressed. An impression of anxiety disorder was noted and a GAF score of 65 was assigned. On VA examination on December 29, 2005, the Veteran reported that he stayed to himself, was suspicious, did not open the doors at his home, did not answer the phone, was fearful of going outside, and was isolated and anxious. He also indicated that he did not sleep well and his concentration was poor. However, his appetite was good; he had no trouble with his temper; and he denied sadness, crying, depression, suicide attempts, panic attacks, and problems with drugs and/or alcohol. The Veteran lived with his wife and performed some chores around the house. He had no friends, had limited recreational and leisure pursuits, spent all of his time by himself mainly inside, and did not attend church anymore. He had three children and was not close to them. The Veteran last worked when he was in service, he attempted to work part-time with the postal service but he stated that he could not tolerate it as it made him too anxious. On evaluation, the examiner observed that the Veteran was alert, cooperative, casually and appropriately dressed, answered questions, and volunteered a lot of information. Additionally, there were no loose associations or flight of information, bizarre motor movements, or tics. The Veteran's mood was tense and affect was appropriate. He had no current homicidal or suicidal ideation or intent, impairment of thought process or communication, delusions, hallucinations, or ideas of reference or suspiciousness. Also, he was oriented times three, his memory (recent and remote) appeared to be good, and insight and judgment appeared to be marginal. A diagnosis of anxiety disorder, not otherwise specified, and a GAF score of 48 were noted. The Veteran was afforded another examination on March 31, 2009, during which time he indicated still having a lot of anxiety and nervousness all the time. There was the occasional panic attack but it was unclear as to the frequency of such episode; he did not experience as many attacks when he was in the house. It was noted that the Veteran did not react well to stress; he stuttered, got nervous, and could not think under pressure. His wife indicated that no one answered the door until the Veteran hid. The Veteran did not sleep well, he had poor concentration, and stayed very upset. The examiner noted that during the evaluation, the Veteran's wife answered questions as the Veteran was unable to answer them, he deferred to her on every question, and for the most part he did not attempt to answer them. It appeared to the examiner that the Veteran was dependent on his wife who reiterated that the Veteran was unable to deal with any degree of stress as he would obsess and not be able to relax. He was unable to go to meetings at school for their daughter. Additionally, it was noted that he was jumpy and every little thing upset him. There were no manic or psychotic symptoms but there was some depression associated with the anxiety and physical problems. On evaluation, the Veteran was noted to be neatly groomed and dressed, and behaving normally. He was pleasure, cooperative, and polite; and was not hostile or belligerent. As for speech, he demonstrated good grammar and vocabulary, and stuttered a little bit. The examiner found that the Veteran was fairly vague and deferred to his wife for most questions. Although when questioned about his Lyme disease treatment, the Veteran jumped in and volunteered information and the examiner observed that he had a fairly good understanding of the situation. As to thought content, the Veteran did not have hallucinations, delusions, paranoia, or ideas of reference. He was not suicidal or homicidal, but had feelings of worthlessness and decreased self-confidence. Additionally, the Veteran was very obsessive and had some compulsions. With regard to affect, the Veteran had some mild depression and mild psychomotor retardation with loss of energy and loss of interest. He also had some anxiety, occasional panic attacks of unknown frequency, some irritability, but good impulse control. Cognitive examination revealed that the Veteran was oriented time four and alert, he knew his birthdate, social security number, and address. He was a very poor historian, and did not seem to be able to communicate much about what was going on but would on occasion correct his wife demonstrating that he had some understanding of what was going on. He complained about forgetfulness and poor concentration. The examiner found that there was some inconsistency with this and it was unclear whether there was a cognitive disorder or not. The examiner concluded that as to social impairment, the Veteran had become very isolated, withdrawn, and kept to himself. He did not like to be around people and did not go out in public by himself without his wife, except to visit his mother. As to work impairment, he only tried to work once for a week in the past 16 years and he had problems working due to severe anxiety and poor concentration. The examiner further noted that it was unclear to what extent or what might cause the Veteran's memory problems. A diagnosis of anxiety disorder, not otherwise specified, and a GAF score of 45 were noted. Based on the evidence above, the Board finds that prior to December 29, 2005, the criteria for an evaluation in excess of the current 10 percent disability evaluation are not met. During this period, although an impression of anxiety disorder was noted, the Veteran did not manifest any symptoms to warrant an evaluation in excess of the current 10 percent rating. Significantly, the evidence showed that he was mostly asymptomatic as he did not demonstrate anxiety or depression. Additionally, his GAF score of 65 reflects 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 having some meaningful interpersonal relationships, which is congruent with the current 10 percent disability evaluation. See supra DSM-IV. For the period from December 29, 2005, to March 30, 2009, the Board finds that the Veteran's anxiety disorder was more congruent with a 30 percent disability evaluation. During this timeframe, the Veteran was shown to have problems with sleep and anxiety. He also isolated himself, had limited activities and social connections, and was unable to work due to his anxiety. Additionally, his insight and judgment were marginal. His GAF score of 48 reflected 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 id. However, the Veteran has not demonstrated 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; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships to warrant a 50 percent evaluation. See 38 C.F.R. § 4.130, Diagnostic Code 9400 (2012). Therefore, the criteria for a 30 percent disability evaluation, but not higher, are met for the period from December 29, 2005, to March 31, 2009. For the period from March 31, 2009, to April 16, 2012, the Veteran's overall symptoms were more congruent with a 50 percent evaluation, but not higher, for his anxiety disorder. During this period, he demonstrated increased panic attacks (though the exact frequency was not known), sleep impairment, poor concentration, disturbance of mood, inability to deal with stress, impaired affect, memory and concentration problems, isolation, and inability to work due to severe anxiety and poor concentration. His GAF score of 45 was reflective of his serious symptoms. See id. However, he did not demonstrate suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships to warrant a 70 percent evaluation. See 38 C.F.R. § 4.130, Diagnostic Code 9400 (2012). In sum, prior to December 29, 2005, an evaluation in excess of 10 percent for anxiety disorder is not warranted; from December 29, 2005, to March 30, 2009, an evaluation of 30 percent is warranted; and from March 31, 2009, to April 16, 2012, an evaluation of 50 percent is warranted. The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b) (1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the Veteran has not required frequent hospitalizations for his anxiety disorder and that the manifestations of his disorder are not in excess of those contemplated by the schedular criteria. The Veteran's problems with anxiety and concentration are already considered in his various staged disability evaluations. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned ratings. Accordingly, the Board has determined that referral of the issue of entitlement to a higher rating for anxiety disorder for extra-schedular consideration is not in order. Lastly, in the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held, in substance, that every claim for an increased evaluation includes a claim for TDIU where the Veteran claims that his service-connected disabilities prevent him from working. In this case, the Veteran is already in receipt of a 100 percent disability evaluation for his anxiety disorder as of April 17, 2012. VA General Counsel opinion 6-99 addressed questions related to whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities. Essentially, this opinion held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU and required dismissal of the TDIU claim. See Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994) (noting that a claim for TDIU presupposes that the rating for a condition is less than 100 percent). However, as the CAVC in Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008), took a position contrary to the one reached in VAOPGCPREC 6-99, the General Counsel withdrew VAOPGCPREC 6-99, effective November 4, 2009. 75 Fed. Reg. 11229, 11230 (Mar. 10, 2010). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, Bradley recognized that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. Bradley, 22 Vet. App. at 293-94. The Board notes that that such a claim has not been raised in this case. ORDER Service connection for a heart disorder, to include as secondary to service-connected Lyme disease, is denied. Prior to December 29, 2005, an evaluation in excess of 10 percent for anxiety disorder is denied. From December 29, 2005, to March 30, 2009, an evaluation of 30 percent, but not higher, for anxiety disorder is allowed, subject to the regulations governing the award of monetary benefits. From March 31, 2009, to April 16, 2012, an evaluation of 50 percent, but not higher, for anxiety disorder is allowed, subject to the regulations governing the award of monetary benefits. ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs