Citation Nr: 1319943 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 07-28 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to a disability evaluation in excess of 30 percent for an anxiety disorder for the period April 27, 2005 to August 26, 2011. 2. Entitlement to a disability evaluation in excess of 70 percent for an anxiety disorder beginning August 27, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty service from October 1965 to October 1968. These matters come before the Board of Veterans' Appeals ("Board") on appeal from a February 2006 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Milwaukee, Wisconsin. In November 2007, the Veteran testified before a Decision Review Officer at the Milwaukee RO. A transcript of the hearing has been associated with the Veteran's claims folder. The Board has previously considered these claims. In July 2011, the Board, in pertinent part, remanded the claims in order to afford the Veteran a new VA examination. Thereafter, in an April 2012 decision, the Board denied the Veteran's claims. The appellant subsequently appealed the decision to the Unites States Court of Appeals for Veterans Claims ("Court"). Thereafter, while the case was pending before the Court, the VA Office of General Counsel and the appellant's attorney (hereinafter known as "the parties") filed a Joint Motion for Partial Remand ("Joint Motion"), requesting that the Court vacate that part of the decision that denied entitlement to a disability evaluation in excess of 30 percent for an anxiety disorder for the period April 27, 2005 to August 26, 2011, and an evaluation in excess of 70 percent from August 27, 2011 forward. By an Order dated December 2012, the Court granted the parties' Joint Motion, vacated that part of the decision that denied the aforementioned claims, and remanded the claims to the Board for compliance with the directives specified by the Court. The claims folder has been returned to the Board for further appellate proceedings. The Board notes that a portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a veteran's claim for benefits. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. For the period April 27, 2005 to August 26, 2011, the Veteran's anxiety disorder was manifested by depressed mood, anxiety, sleep problems, infrequent panic attacks (no more than one per week), irritability, concentration problems, disturbances of motivation and mood and intermittent suicidal ideation without intent. 2. As of August 27, 2011, the Veteran's anxiety disorder has been manifested by depressed mood, anxiety, mild memory loss, flattened affect, disturbances of motivation and mood, impaired impulse control and difficulty in establishing and maintaining effective work and social relationships. CONCLUSIONS OF LAW 1. For the period April 27, 2005 to August 26, 2011, the criteria for an evaluation in excess of 30 percent for an anxiety disorder were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.27, 4.126, 4.130, Diagnostic Code 9400 (2012). 2. Beginning August 27, 2011, the criteria for an evaluation in excess of 70 percent for an anxiety disorder were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.27, 4.126, 4.130, Diagnostic Code 9400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. In this case, the Board notes that service connection had already been established and the current appeal arose from a claim for an increased rating. In a letter dated January 2006, prior to the initial adjudication of the claim, the Veteran was informed that he should provide evidence showing that the symptoms from his service-connected disability had increased in severity. A second letter, dated February 2007, provided him with notice of how VA assigns the disability rating and effective date elements of a claim. See Dingess/Hartman, supra. These letters provided notice of the types of evidence, both lay and medical, that could be submitted in support of a claim for an increased rating, and advised the Veteran of what VA would do to assist him in obtaining such evidence. Subsequent letters, dated May and October 2008, informed the Veteran of the specific diagnostic code applicable to his service-connected anxiety disorder. In addition, the Veteran's claim was readjudicated in an August 2007 Statement of the Case ("SOC") and several subsequent Supplemental Statements of the Case ("SSOC"). See Dingess/Hartman, supra; see also Mayfield v. Nicholson, 20 Vet. App. 537 (2006), citing Mayfield v. Nicholson, 444 F.3d at 1333-34 (holding that providing the claimant with notice followed by a readjudication of the claim in an SOC or Supplemental Statement of the Case ("SSOC") "cures" any timing problem associated with the lack of notice prior to an initial adjudication). B.) Duty to Assist The Board is satisfied that the duty to assist has been satisfied. The claims folder contains the Veteran's service and post-service treatment records, VA examination reports dated February 2006, March 2008 and August 2011. The claims folder also contains the Veteran's statements in support of his claims. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claims that have not already been obtained and associated with the record. Review of the examination reports demonstrates that the VA examiners reviewed the complete claims folder, interviewed the Veteran regarding his history of mental health symptoms, performed a comprehensive evaluation and provided reasons and bases for their conclusions. Accordingly, the Board finds the VA examinations adequate upon which to base decisions in this case. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above, finds that the development of the claims has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claims. Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. 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 claims. 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). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, and by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries, and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate Diagnostic Codes ("DC") identify the various disabilities and the criteria for specific ratings. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2009). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). 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 an evaluation 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 an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2012). The Veteran's service-connected anxiety disorder has been evaluated under DC 9400 (2012). The regulations establish a general rating formula for mental disabilities. See 38 C.F.R. § 4.130 (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. See 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 diagnostic code. Instead, VA must consider all symptoms of a claimant's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) ("DSM-IV"). The criteria for a 30 percent rating are: 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). The criteria for a 50 percent rating are: 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. The criteria for a 70 percent rating are: 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. And, the criteria for a 100 percent rating are: 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). The Board must also consider the Global Assessment of Functioning ("GAF") scores that have been reported. GAF scores, ranging from 0 to 100 percent, are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the DSM-IV, p.32). GAF scores from 51 to 60 represent moderate symptoms, such as flat affect and circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school function (such as few friends, conflicts with peers or co-workers). GAF 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). Additionally, 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). Lower scores assess increased impairment. The Veteran contends that the symptoms of his PTSD are greater than the current staged disability evaluations contemplate. A. Entitlement to a disability evaluation in excess of 30 percent for an anxiety disorder for the period April 27, 2005 to August 26, 2011. The Veteran filed his claim for an increased rating in December 2005. By means of the February 2006 rating decision, the Veteran was assigned a 30 percent disability evaluation, effective April 27, 2005. Generally, the effective date for an increased rating is the date of receipt of the claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1) (2012). However, if the claim is filed within one year of the date that the evidence shows an increase in disability has occurred, the effective date is the earliest date as of which an increase is factually ascertainable (not necessarily the date of receipt of the evidence). 38 C.F.R. § 3.157 (b)(1); 3.400(o) (2) (2012). Review of the claims folder shows that in April 2005, during an outpatient psychotherapy session at the VA Medical Center ("VAMC"), the Veteran reported that he was still taking antidepressant medication and denied feeling of depression. He did, however, state that he had difficulties with motivation and completing tasks. He denied suicidal or homicidal ideations, and the clinician noted there was no evidence of auditory or visual hallucinations or delusions. During an October 2005 outpatient session, he reported that his mood was "up," he was hopeful, and his sleep was adequate. The mental status evaluation showed him to have a good memory with some slight problems with recall, and his mood good on his current medications. In January 2006, the Veteran reported to his therapist that he was doing well, was more relaxed, was sleeping well, had better energy, and an improved mood. He denied suicidal or homicidal ideations and was fully-oriented to person, place and time. In February 2006, the Veteran was afforded a VA mental disorders examination, at which time, he reported he had been married for 39 years, had four adult children, and 12 grandchildren; he noted having a close relationship with his entire family. He also reported being unemployed since 2000 and said he had little social activity. He reported that he sometimes had thought of hurting himself or others, and fantasized of "maybe building pipe bombs." However, he also noted that he did not dwell on such thoughts, adding that he would not know how to make a pipe bomb. He also reported some difficulty recounting words, but said it had improved somewhat on medication. During his mental status evaluation, he was fully-oriented to person, place and time, his affect was appropriate, and he reported his mood as "mostly down and crabby." He denied anxiety attacks, as well as hallucinations and delusions, but noted he had intermittent suicidal or homicidal ideations without any intent. He also reported worry, difficulty concentrating, depression, irritability and decreased tolerance of situation stressors. The diagnoses were generalized anxiety disorder and depressive disorder, not otherwise specified ("NOS"). His assigned GAF score was 60 for anxiety and depression. During an August 2006 VAMC outpatient therapy session, the Veteran reported he was doing well, his mood and sleep were good, and he was hopeful. In October 2006, the clinician found that his depression was stable on medication. In January 2007, the Veteran was seen at the VAMC for a psychiatric medication management appointment, during which time, he reported that he was doing fairly well and had enjoyed the December holidays with his wife. He said he was optimistic, had no anhedonia and no medical side effects. His speech was within normal limits, he had a full affect, his mood was stable, and he denied suicidal or homicidal ideations. The clinician noted that he showed no evidence of psychotic symptoms and his cognition was intact. His assigned GAF score was 60, which the clinician noted was due primarily to the Veteran's focus on physical ailments. This lessening of symptoms continued through the next several months. See VAMC treatment April and August 2007. In October 2007, the Veteran returned for another medication management session, where he complained of poor sleep and occasional nightmares. However, he continued to deny suicidal or homicidal ideations. In March 2008, the Veteran was afforded another VA mental disorders examination, at which time, his complaints included anxiousness, irritability, concentration difficulties, and panic attacks no more than once per week. He also reported that his mood was up and down, he often felt sad and wanted to be alone, had thoughts of hopelessness and helplessness, difficulties making decisions and a low energy and motivation level. However, he specifically said he denied thoughts of death during these times. He said his sleep pattern was irregular ( although he reported sleeping a total of about 12 hours per day), and he felt anxious, but somewhat less "crabby" than during the previous VA examination. He denied paranoia, homicidal ideation and physical aggression. His activities included occasionally dining out with his wife and speaking with friends by phone. The mental status evaluation demonstrated no evidence of psychotic thought processes, his memory was adequate, and he denied concentration problems. The diagnoses were generalized anxiety disorder and depressive disorder NOS. His assigned GAF was 52 for generalized anxiety disorder and 52 for depressive disorder. In July 2008, the Veteran reported to his VAMC treating clinician that he was experiencing an increase in anxiety over the state of his marriage and his finances. However, during the mental status evaluation, he denied any suicidal ideation. His assigned GAF was 50. During an August 2008 outpatient therapy session, the Veteran reported being depressed and said he and his wife were getting divorced. Despite the stress over this event, he reported that his mood was stable, and he denied suicidal or homicidal ideations. In September 2008, he reported that he was more depressed and anxious, adding that he occasionally experienced suicidal ideation; his assigned GAF score was between 55 and 60. Later that month, however, he said that his mood was "fine" and he again denied suicidal or homicidal ideations. In July 2011, during a cardiology outpatient consultation at the VAMC, the clinician performed a brief psychological evaluation, in which the Veteran denied suicidal or homicidal ideations, anxiety, phobias, changes in sleep or memory loss. Based on a review of the aforementioned evidence of record, the Board concludes that for the period April 27, 2005 to August 26, 2011, the criteria for a disability evaluation in excess of 30 percent for an anxiety disorder were not met. As noted above, during this period, his anxiety disorder was manifested by symptoms no greater than depressed mood, anxiety, sleep problems, infrequent panic attacks (no more than one per week), irritability, concentration problems, disturbances of motivation and mood and intermittent suicidal ideation without intent. In this regard, the Board notes that despite the contention of the parties that, during the February 2006 VA examination, the Veteran reported having thoughts of hurting himself or others and fantasies of building a pipe bomb, as discussed above, the Veteran specifically said that he did not dwell on this idea, and regardless had no idea how to build a pipe bomb. Moreover, although he did occasionally report suicidal ideation during his examinations and outpatient treatment, he just as frequently denied such thoughts; significantly, he always denied any actual intent. The Board notes that, despite the Veteran's occasional suicidal ideation, a higher disability evaluation is not warranted for this portion of the appeal, as the most probative evidence of record demonstrates that the symptoms from his anxiety disorder and level of social and occupational impairment did not more closely approximate a 50 percent evaluation or higher. In this regard, the Board notes that, while he reported experiencing disturbances of motivation and mood, there was no medical evidence that he displayed 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 judgment; impaired abstract thinking; or difficulty in establishing and maintaining effective work and social relationships. Rather, the medical evidence demonstrates that the Veteran's mental status evaluations were consistently unremarkable, with no evidence of the aforementioned symptoms. Moreover, there was no evidence, either medical or from the Veteran himself, that he had any difficulty in establishing and maintaining social relationships. As discussed above, the Veteran has been married over 40 years and has a close relationship with his children and grandchildren. In addition to the Veteran's symptomatology, the Board has also considered his GAF scores during this period. Although the Veteran was noted to have an assigned GAF score of 50 during a July 2008 psychotherapy session, at which time, he reported that he was experiencing increased anxiety over the state of his marriage and finances, other than this single incident, his scores during this period of the appeal did not fall below 52, and he was often assigned a GAF of 60, scores suggestive of moderate symptoms. Moreover, while an examiner's classification of the level of psychiatric impairment reflected in the GAF score assigned is probative evidence of the degree of disability, such a score is by no means determinative of the rating assigned by VA in evaluating a psychiatric disorder under the rating criteria. See 38 C.F.R. §§ 4.2, 4.126; VAOPGCPREC 10-95 (March 31, 1995). Rather, VA must take into account all of the veteran's symptoms and resulting functional impairment as shown by the evidence of record in assigning the appropriate rating, and will not rely solely on the examiner's assessment of the level of disability at the moment of examination. See 38 C.F.R. § 4.126. As such, the Board concludes, for the period April 27, 2005 to August 26, 2011, the Veteran's anxiety disorder most closely approximated the criteria for a 30 percent disability evaluation. In arriving at its conclusion that a higher disability rating for the Veteran's anxiety disorder is not warranted, the Board has taken particular notice of the fact that its inquiry is not necessarily strictly limited to the criteria found in the VA rating schedule. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (the criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are examples of the type and degree of the symptoms, or their effects, that would justify a particular rating). In this case, however, the Board has not identified competent evidence of symptomatology associated with the Veteran's service-connected disorder that would enable it to conclude that the criteria for a higher disability rating have been approximated during this portion of the period on appeal. B. Entitlement to a disability evaluation in excess of 70 percent for an anxiety disorder from August 27, 2011 forward. In August 2011, the Veteran was afforded another VA examination. At that time, he reported that his marriage had improved because he realized his increasing dependence on his wife. Although he said they continued to argue several times per week, he noted that his medications helped decrease his angry outbursts. The VA examiner observed that since the previous VA examination, the Veteran had continued in psychotherapy approximately once per month and was continuing to take several psychotropic medications, which the Veteran said helped with his mood, anger and sleep. The VA examiner found that he demonstrated occupational and social impairment with deficiencies in most areas and his symptoms included depressed mood, anxiety, mild memory loss, flattened affect, disturbances of mood and motivation, impaired impulse control and difficulty in establishing and maintaining effective work and social relationships. The diagnoses continued to be generalized anxiety disorder and depressive disorder NOS. The examiner commented that the Veteran's health appeared to have deteriorated over the last few years in the context of his lung cancer and treatment, as his psychotherapy notes indicated that those stressors had increased his anxiety. He further observed that the Veteran's memory was poorer than it was in 2008, which he said appeared to be consistent with the Veteran's report that his memory had declined as a result of chemotherapy and radiation. Finally, he observed the Veteran's statements about his increasing anxiety over his financial woes, noting that he had recently declared bankruptcy. The assigned GAF score was 52. During a September 2011 VA outpatient neurological evaluation, the clinician found the Veteran continued to be positive for depression and negative for suicidal thoughts. Based on a review of the aforementioned evidence of record, the Board concludes that for the period beginning August 27, 2011, the criteria for a disability evaluation in excess of 70 percent for an anxiety disorder were not met. As noted above, during this period, his anxiety disorder was manifested by symptoms no greater than depressed mood, anxiety, mild memory loss, flattened affect, disturbances of motivation and mood, impaired impulse control and difficulty in establishing and maintaining effective work and social relationships. In spite of his contention that the symptoms of his anxiety disorder more closely approximate those associated with a higher, 100 percent disability rating, there has been no probative evidence to suggest that since August 27, 2011, he has experienced any of the symptoms commonly associated with the higher disability rating, including 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. In addition to the Veteran's symptomatology, the Board has also considered his GAF score of 52 that was assigned during the August 2011 VA examination. As noted above, this score suggests moderate symptoms, such as flat affect and moderate difficulty in social, occupational, or school function, the very symptoms the Veteran displayed during the evaluation. In determining that a higher disorder evaluation for the Veteran's service-connected anxiety disorder is not warranted for this portion of the period on appeal, as discussed above, the Board notes that its inquiry is not necessarily strictly limited to the criteria found in the VA rating schedule. See Mauerhan v. Principi, supra. Here, however, the Board has identified no competent evidence of symptoms associated with the Veteran's disability that would enable it to conclude that the criteria for a higher disability rating have been approximated during this portion of the period on appeal. As such, the Board concludes, for the period beginning August 27, 2011, the Veteran's anxiety disorder most closely approximated the criteria for a 70 percent disability evaluation. Throughout the entirety of the Veteran's appeal, in addition to the VA examinations and outpatient treatment reports, the Board has also considered the Veteran's personal statements regarding the severity of his anxiety disorder. In this regard, the Board is cognizant that the Court has repeatedly held that a veteran is competent to describe symptoms of which he or she has first-hand knowledge. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). As such, his assertions are entitlement to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Court has also held that a lay person is not competent to offer an opinion on a matter clearly requiring medical expertise, such as evaluating the severity of a complex psychiatric condition, such as generalized anxiety disorder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As a result, his assertions do not constitute competent medical evidence. Finally, the Board has also considered the potential application of 38 C.F.R. § 3.321(b)(1) for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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). 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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. In this case, however, a comparison between the level of severity and symptomatology of the Veteran's condition with the established rating criteria shows that the rating criteria adequately describe the Veteran's symptomatology and disability level. The Board further observes that, even if the available schedular evaluation for the disability were inadequate (which it manifestly is not), the Veteran's disability has not been shown to cause marked interference with employment beyond that contemplated by the Schedule for Rating Disabilities; has not necessitated frequent periods of hospitalization; and has not otherwise rendered impractical the application of the regular schedular standards utilized to evaluate the severity of the disability. Thus, the Board finds that the requirements for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). The Board concludes that, for the period April 27, 2005 to August 26, 2011, the preponderance of the evidence is against the Veteran's claim of entitlement to a disability rating in excess of 30 percent for an anxiety disorder, and for the period beginning August 27, 2011, the preponderance of the evidence is against the Veteran's claim of entitlement to a disability rating in excess of 70 percent for an anxiety disorder. As there is not an approximate balance of evidence, the "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to a disability evaluation in excess of 30 percent for an anxiety disorder for the period April 27, 2005 to August 26, 2011, is denied. Entitlement to a disability evaluation in excess of 70 percent for an anxiety disorder for the period beginning August 27, 2011 is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs