Citation Nr: 1320856 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 09-29 771 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for service-connected generalized anxiety disorder and panic disorder with agoraphobia prior to August 13, 2007, and in excess of 70 percent from February 1, 2008. 2. Entitlement to an effective date prior to January 23, 2002 for the assignment of a total disability rating based upon individual unemployability due to service connected disability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran had a period of active service from April 1957 to March 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In that decision the RO denied the Veteran's October 2007 claim for a disability rating in excess of 50 percent for the service-connected generalized anxiety disorder and panic disorder with agoraphobia. In a March 2010 decision, the Board denied the Veteran's claim of entitlement to an evaluation in excess of 50 percent for service-connected generalized anxiety disorder and panic disorder with agoraphobia. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court), and counsel for the Veteran and the Secretary of VA filed a Joint Motion for Remand. An Order of the Court dated November 15, 2010, granted the motion, vacated the Board's March 2010 decision, and remanded the case to the Board. While the case was pending before the Court, the Veteran had submitted a claim for an increased rating for the service-connected generalized anxiety disorder and panic disorder with agoraphobia in April 2010. In a July 2010 rating decision, the Veteran was assigned a temporary disability rating of 100 percent for her service-connected psychiatric disorder from August 13, 2007, to January 31, 2008, because of hospitalization over 21 days. She was also assigned a 70 percent disability rating from February 1, 2008, for the service-connected psychiatric disorder. As the award is not a complete grant of benefits, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993) Significantly, the RO assigned a temporary total rating from August 13, 2007 and a 70 percent rating from February 1, 2008 for the service-connected psychiatric disorder while the appeal of the March 2010 Board decision remained pending at the Court; however, the RO's action ultimately resulted in harmless error because the March 2010 Board decision was subsequently vacated and the February 2008 rating decision was no longer considered final. Accordingly, the issue of entitlement to an evaluation in excess of 50 percent prior to August 13, 2007, and an evaluation in excess of 70 percent from February 1, 2008 for the service-connected psychiatric disorder is still properly before the Board here and the issue has been appropriately rephrased above. In September 2011, the Board remanded the matter for additional development of the record. 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). The issue of entitlement to an effective date prior to January 23, 2002 for the assignment of a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. For the entire period on appeal, the service-connected generalized anxiety disorder and panic disorder with agoraphobia is manifested by occupational and social impairment with deficiencies in most areas, such as work, family, thinking and mood, due to symptoms of severe anxiety, constant and obsessive worry, fear (including a fear of social interaction), paranoia, numerous phobias, depression, panic attacks, and numerous somatic preoccupations. 2. The Veteran's service-connected generalized anxiety disorder and panic disorder with agoraphobia has never been manifested by total occupational and social impairment. 3. There were no pending claims at the time the Veteran filed her most recent claim for an increased rating for the service-connected anxiety disorder and panic disorder with agoraphobia on October 26, 2007. 4. It is first factually ascertainable that an increase in the Veteran's psychiatric disability occurred approximately one year prior to the date of the Veteran's most recent claim for an increased rating for generalized anxiety disorder received at the RO on October 26, 2007. CONCLUSIONS OF LAW 1. An unappealed July 1996 rating decision denying an increased rating for the service-connected anxiety disorder and panic disorder with agoraphobia; and, an August 1998 rating decision denying entitlement to a temporary total rating based on hospitalization over 21 days, are final. 38 U.S.C.A. § 7105. 2. Resolving all doubt in the Veteran's favor, the criteria for the assignment of a 70 percent schedular rating for generalized anxiety disorder and panic disorder with agoraphobia have been more nearly approximated since October 26, 2006. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.400, 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9413 (2012). 3. The criteria for the assignment of a 100 schedular disability rating for the service-connected generalized anxiety disorder and panic disorder with agoraphobia have not been met or more nearly approximated at any time covered by this claim. U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.400, 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9413 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1) , proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the Veteran's increased rating claim, the RO sent a pre-rating letter mailed to the Veteran in December 2007. This letter provided adequate notice as required by Dingess. The Veteran was notified of the status of her claim, what evidence she was responsible for obtaining and what evidence VA would obtain on her behalf. The Veteran was also notified of how VA assigns disability ratings and effective dates for all service-connected disabilities. In a July 2008 letter to the Veteran, the RO provided the Veteran notice of the specific rating criteria that applies to the Veteran's claim for an increased rating for her service-connected psychiatric disorder pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9413 under the General Rating Formula for rating Mental Disorders. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claim. All identified VA treatment records have been obtained and associated with the record. VA psychiatric examinations were afforded to the Veteran in December 2007, June 2010, and June 2012, and the Veteran's VA mental health treatment records contain numerous mental health assessments conducted throughout the appeal period. The claim was remanded in September 2011 and per the remand directives, Social Security Administration (SSA) records pertaining to any claim for employment disability were requested. In a May 2012 response, the SSA responded that there were no medical records because the Veteran either did not file for benefits or she filed for disability benefits but no medical records were obtained. The Veteran was not subsequently notified of the unavailability of SSA records, as directed in the September 2011 remand; however, the lack of notification is harmless error because the RO subsequently granted a TDIU effective from January 23, 2002. The September 2011 remand also directed the RO to re-examine the Veteran with regard to the service-connected psychiatric disorder. That was accomplished in June 2012, and that examination is adequate, as it was based on a review of the claims file, an interview with the Veteran, a review of the Veteran's VA records, the Montreal Cognitive Assessment (MoCA), Patient Health Questionnaire-9 item scale (PHQ-9); and, the Generalized Anxiety Disorder - 7 item scale (GAD-7). In sum, the examination report provides accurate and adequate medical information by a competent medical profession in order to determine the proper disability rating during the time period in question. Thus, to the extent possible, the agency of original jurisdiction (AOJ) substantially complied with the September 2011 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Increased Rating The Veteran seeks a disability rating in excess of 50 percent for service-connected generalized anxiety disorder and panic disorder with agoraphobia prior to August 13, 2007, and in excess of 70 percent from February 1, 2008. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). If a decision by the RO goes unappealed, it is final. An appeal to the Board consists of a timely notice of disagreement (NOD) in writing; and, after a Statement of the Case (SOC) has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. An NOD must (1) express disagreement with a specific determination of the RO; (2) be filed in writing; (3) be filed with the RO; (4) be filed within one year after the date of mailing of notice of the RO decision; and (5) be filed by the claimant or the claimant's authorized representative. While special wording is not required, an NOD must be in terms that can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. §§ 20.201, 38 C.F.R. § 20.300 ; see Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002). A substantive appeal consists of a properly completed VA Form 9 (Appeal to the Board of Veterans' Appeals ) or correspondence containing the necessary information. 38 C.F.R. § 20.202. A substantive appeal must be filed within 60 days from the issuance of the SOC or within the remainder of the one-year period from the date of mailing notification of the determination being appealed, whichever period ends later. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b). A substantive appeal should set forth specific allegations of error of fact or law related to specific items in the SOC and clearly identify the benefit sought on appeal. 38 U.S.C.A. § 7105(d) (3); 38 C.F.R. § 20.202. A final and binding RO decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities, or on the basis of clear and unmistakable error (CUE), as provided in 38 C.F.R. § 3.105. 38 C.F.R. § 3.104(a). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. When evaluating a mental disorder, consideration shall be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The evaluation will be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of examination. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.126. Global assessment of functioning (GAF) scores, which reflect the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health, are also useful indicators of the severity of a mental disorder. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). GAF scores ranging between 51 to 60 are indicative of moderate symptoms (e.g., flat affect, circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). GAF scores between 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Scores between 31 to 40 range indicate impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV, 46-7 (1994). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 31, 1995). Under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9413, a 50 percent disability rating is assigned for generalized anxiety disorder, not otherwise specified (NOS) that is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is appropriate where generalized anxiety disorder is manifested by occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or the inability to establish and maintain effective relationships. A 100 percent disability evaluation is granted where generalized anxiety disorder is productive of total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting himself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; or memory loss for the names of close relatives, own occupation, or own name. Use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on a veteran's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In this case, service connection for a psychiatric disorder with a 50 percent disability rating has been established since November 1975. In an unappealed July 1996 rating decision, the RO denied a claim for an increased rating. In an unappealed August 1998 rating decision, the RO assigned a temporary total disability rating based on hospitalization for over 21 days for the service-connected psychiatric disorder from July 8, 1998 to August 21, 1998; and, then assigned a 50 percent effective September 1, 1998. The July 1996 and August 1998 decisions are final. Because the Veteran did not submit NOD's with regard to the previous rating decisions during their respective appeal periods, all increased rating claims filed prior to October 26, 2007 are final. On October 26, 2007, the RO received the Veteran's most recent claim for an increased rating for the service-connected psychiatric disorder. Currently, a temporary total rating based on hospitalization over 21 days is effective from August 13, 2007 to January 31, 2008; and, a 70 percent rating is assigned for the service-connected generalized anxiety disorder and panic disorder with agoraphobia effective from February 1, 2008. Thus, the issue(s) before the Board is whether higher schedular disability ratings are warranted prior to and/or after the assignment of the temporary total rating between August 13, 2007 and January 31, 2008. A review of the evidence dating back to approximately one year prior to the date of the Veteran's most recent claim for increase establishes that the Veteran's symptoms had worsened around October 2006 to the point that the overall disability picture at that time more nearly approximated occupational and social impairment with deficiencies in most areas due to the service-connected generalized anxiety disorder and panic disorder with agoraphobia. An October 2006 VA mental health outpatient social work progress report indicates that the Veteran was confused and easily lost her train of thought, which she complained about several times. Significantly, the Veteran's aide reported that she has observed the Veteran's level of functioning decline over the prior six months. The aide explained that she used to accompany the Veteran to the mall and other places, and that the Veteran used to like to go out to eat regularly; however, the aide noted that the Veteran no longer liked to leave her home anymore and "sits in her apartment and smokes cigarettes all day." The aide also reported that the Veteran's nerves were at an all time high and the medicine was not doing anything. The report also noted that the Veteran refused to be treated by any other doctor or go to Urgent Care if needed while her regular treating psychiatrist was on vacation because of anxiety and panic. A November 2006 psychiatric attending note indicates that the Veteran reported feeling "much worse." She indicated that her anxiety and fear of everything was increasing and the more anxious she felt the more confused and dizzy she got. She explained that she had to take valium in order to calm down enough to leave her apartment to go to her doctor appointments. The Veteran was an in-patient from July 28, 2007 to August 13, 2007. The Veteran's VA treatment records and the report of her December 2007 VA examination show that her service-connected psychiatric disorder is manifested primarily by daily anxiety and excessive worry, difficulty making decisions, panic attacks approximately once every three months, impaired concentration, and fair insight and judgment. During that time period, she was followed by VA approximately once every three months for that disorder. After her August 2007 hospitalized by VA for complaints of dizziness and a minute of blindness associated with that disorder, she was released to the VA nursing home unit for several months of additional treatment. She experienced a little less worry while she was being cared by others, but wanted to return to her own apartment rather than move to assisted living at that time. This level of severity was not ascertainable prior to October 2006, and the October and November 2006 records summarized above clearly demonstrate a worsening of symptoms right around that time period. The December 2007 examination report indicates that the Veteran had good personal hygiene and was clean and neatly groomed. She was also alert and well-oriented, and her memory was generally intact. Moreover, her speech was of a regular rate and rhythm and is relevant, coherent, and spontaneous. However, the evidence shows that the Veteran's symptoms of severe anxiety, panic and worry reflected a serious level of impairment compatible with the assigned GAF scores ranging from 40 to 45. The Veteran reported that she was becoming increasingly more worried about worrying, and having somatic complaints with anxiety. The Veteran indicated that, over time, she had noticed a worsening of her coping skills and stress management skills, pointing out that she was easily overwhelmed by even minor stress. In addition, she reported that her inability to make decisions and to deal with stress had done nothing but worsen over the years in response to a decrease in emotional and physical reserves as she aged. The report also notes that the Veteran has been dependent on Valium for over 20 years. There was an attempt to wean her off the medicine but that led to an increase in symptoms and panic attacks. Her symptoms included severe anxiety and worry about almost everything. She was a chronic worrier and had numerous negative thoughts and pessimistic thoughts which further added to her worry. She identified many somatic complaints which became the focus of her worry and thinking. She reported a fear of death and illness. She had an increasingly more difficult time making decisions. She also identified a number of fears including a fear of animals, snakes, heights, and illness. She reported a lack of trust in others, extreme fatigue, decreased concentration, and a feeling of hopelessness and helplessness. She had a home health aide, who she thought of as a friend, but indicated that she had no other friends. With regard to employment, she was last gainfully employed in 1976. She attempted voluntary work between the late 1980's and 1998, but quite abruptly when someone yelled at her. She has not worked since. Mental status examination revealed definite anxiety throughout the interview. She became anxious and distraught while discussing plans for her discharge. The Veteran appeared to have great difficulty making decisions and was obsessively worried about her health. There was no psychotic behavior, no delusions, no hallucinations, and no suicidal or homicidal ideation. The examiner found that the Veteran presented with serious symptomatology including chronic serious symptoms of anxiety and worry. She had occasional panic attacks and numerous phobias. The Veteran obsessively worried and had numerous somatic preoccupations. She presented as a depressed and very anxious woman had had great difficulty with decision making and was easily overwhelmed by stress. She had few social outlets. She had chronic difficulties with extreme fatigue and serious difficulties with concentration. Those symptoms, in the examiner's opinion, led to serious occupational impairment and mild interpersonal impairment. A July 2009 VA outpatient psychosocial summary indicates that the Veteran resided alone, had no children and was never married. The Veteran was clean, alert and fully oriented. According to the examiner, the Veteran appeared to have adequate social and spiritual supports, noting support from her two brothers. At the June 2010 VA examination, the examiner noted that the claims file was not available for review in conjunction with the examination. Nonetheless, the findings on examination are similar to those noted on the 2007 examination. The Global Assessment of Functioning (GAF) was listed as 50 on examination and 45 over the prior year. Also, the examiner noted that the Veteran became extremely anxious and decompensates; she is unable to tolerate crowds, and when she decompensates she is unable to think straight and begins shaking, and feels out of control. She reportedly felt that the condition was worse. At the time of the examination, her only socialization was with her home health aide and occasional contact with her two brothers; however, she expressed disappointment that the aide's hours were decreased. The Veteran also noted that she had a few friends that she kept in touch with by phone. The Veteran had difficulty with activities of daily living, difficulty with concentration, and reports anxiety and depression. The Veteran specifically indicated that she had not had happy thoughts since 2006. Test results and interpretation revealed the following: The BDI-2 indicated current mood status was depressed with the intensity of a severe level. Severe symptoms were loss of pleasure, self criticalness, crying, loss of interest, tiredness, fatigue, loss of interest in sex. Moderate symptoms were self dislike, loss of energy and concentration difficulty. Mild symptoms were sadness, pessimism, past failure, guilty feelings, punishment feelings, agitation, and worthlessness. The BAI indicated current anxiety status of moderate to severe. Severe symptoms were wobbliness in the legs, fear of the worst happening, nervousness, and hands trembling. Moderate symptoms including an inability to relax, unsteady, terrified, shaky, fear of dying, and feeling faint. The examiner concluded that the Veteran had continued anxiety and panic with episodes of depression. The examiner indicated that the Veteran had anxiety on a daily basis, and at times this escalated to paranoid episodes. With regard to memory, the examiner noted that the Veteran had trouble recalling events, although she mostly had clarity of mind. The examiner found that the Veteran's thoughts became tangled or confused and she was unable to recall as well as previously. The Veteran was most recently examined by VA in June 2012. That examiner opined that the Veteran was totally and occupationally impaired. The examiner indicated that the Veteran had a diagnosis of dementia in addition to her generalized anxiety disorder and panic disorder with agoraphobia; and, opined that the Veteran's current significant cognitive decline with consequent inability to independently perform many activities of daily living was attributable solely to the nonservice-connected dementia, and not to the service-connected generalized anxiety disorder and panic disorder with agoraphobia. The examiner indicated a Global Assessment of Functioning (GAF) of 50, noting significant cognitive decline with consequent inability to independently perform many activities of daily living. The examiner noted that the Veteran repeatedly scored within the severely impaired range on measures of cognitive functioning. Her performance on the DRS-2 was within the severely impaired range when administered in January 2011 and she received a score of 18/30 on the MoCA during the current evaluation. The examiner specifically indicated that he could separate the symptoms associated with the service-connected anxiety disorder and panic disorder with agoraphobia from the non-service-connected dementia. In so doing, the examiner pointed to the Veteran's dependency on others for performance of the most instrumental activities of daily living such as grocery shopping, cooking, laundry, money and medication management, noted in VA treatment records dated as far back as 2005. As early as June 2010, the Veteran needed assistance with basic activities of daily living such as bathing, hygiene/grooming, dressing, and cleansing herself after elimination. The examiner specifically noted that this lack of ability to independently perform activities of daily living could not be accounted for by anxiety and was most consistent with dementia. Although the examiner noted total occupational and social impairment, he specifically opined that the level of functional impairment was more likely than not due entirely to her severe impairment in cognitive functioning (dementia). When it is not possible to separate the effects of service-connected and non-service-connected disabilities, such effects should be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). However, in this case, the examiner specifically indicated that he was able to separate the symptoms, as noted above. The examiner's rationale for this opinion was the Veteran's reports of significantly diminished anxiety since entering a nursing home in February 2011, with less worries, and a mind that was "more at ease," coupled with the low test scores measuring anxiety and depression. In this regard, changes reported since the 2010 evaluation were limited to increased social interactions. She reportedly enjoyed talking with other facility residents and often participated in Bingo games, the manicures, and happy hour music presentations. In sum, the totality of the evidence shows that the Veteran's service-connected anxiety disorder and panic disorder with agoraphobia clearly worsened approximately one year prior to October 2007, the date on which the RO received the Veteran's claim for an increased disability rating. The evidence at that time specifically notes the Veteran's reports of increased anxiety and worry, as well as the home health aide's statements regarding increased isolation, fear, anxiety and worry. This is also supported by the Veteran's comment in 2010 that she had not had happy thoughts since 2006. The symptoms collectively show occupational and social impairment with deficiencies in most areas, including work, family, judgment, thinking and mood; due to such symptoms as daily anxiety and excessive worry, difficulty making decisions, panic attacks, impaired concentration, increased isolation, fear of other people, and fair insight and judgment. By contrast, an increase in disability to a level that warrants a 70 percent rating was not factually ascertainable prior to that date. If such an increase were ascertainable prior to October 2006, the proper effective date for the assignment of the 70 percent rating would be October 26, 2007, and no earlier. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). Because it is factually ascertainable that an increase in disability occurred approximately one year prior to the date of the claim for an increased rating, the assignment of a 70 percent rating is assigned one year prior to the date of claim. Thus, the assignment of a 70 percent rating is warranted for the service-connected anxiety disorder and panic disorder with agoraphobia from October 26, 2007 until August 12, 2007, the date on which the temporary total disability rating was assigned based on hospitalization longer than 21 days. At no time during the period covered by this claim (beginning on October 26, 2006 and excluding the period when the temporary total rating was in effect - August 13, 2007 to January 31, 2008) has the service-connected anxiety disorder and panic disorder with agoraphobia been productive of a disability picture that more nearly approximates that of total and occupational impairment. The Veteran is not suicidal or self endangering. Moreover, the Veteran has not lost touch with reality, she has never shown psychotic episodes, and her declining cognitive impairment has been specifically attributed to dementia and not the service-connected disability. The VA examinations of December 2007, June 2010 and June 2012 certainly show severe symptoms of anxiety and worry, fear, and phobias, but no examiner has indicated that the Veteran is totally socially and occupationally impaired solely due to the anxiety disorder and panic disorder. While the Veteran has been found to be unemployable due to her service-connected disability, total social impairment is not demonstrated. The Veteran has always considered her home health aide a friend, has always maintained a meaningful relationship with her brothers, and spoke of some friends who she kept in touch with over the phone. The December 2007 examiner specifically found that the Veteran had only mild interpersonal impairment; and the June 2012 examiner noted that the Veteran was becoming more social, as described above. The Veteran has been able to attend her medical and psychiatric appointments and the examiners have always noted that the Veteran was able to accurately report her symptoms and communicate effectively, aside from her memory problems. Although the Veteran's Global Assessment of Functioning (GAF) scores throughout the appeal period have ranged from 40 to 50, which is indicative of serious symptoms, the Global Assessment of Functioning (GAF) alone does not serve to establish total social and occupational impairment based on the rating criteria at issue. The Veteran's attorney argues that the June 2012 examination is inadequate because it fails to address the severity of the Veteran's service-connected disability outside of the present setting of a nursing home, where she admittedly claims to have less anxiety and worry than when she lived alone. While this may be true, the examiner nonetheless found that the Veteran was totally and occupationally impaired; however, he found that her functional impairment was due solely to cognitive deficit and not due to the service-connected disability. Even disregarding the examiner's opinion that the Veteran's anxiety disorder and panic disorder play almost no role, if any, in her level of functioning at that point, the case is decided on the basis of the entire record, not just one examination, and the June 2012 opinion is not consistent with the other evidence of record. Significantly, however, the RO granted a TDIU based, at least in part, on the June 2012 examination; thus it was deemed adequate by the RO to find total occupational impairment. With regard to social impairment, the Veteran's social impairment has improved since being in a nursing home; however, there is plenty of other evidence to show the severity of the Veteran's social functional impairment due to the service-connected anxiety disorder and panic disorder during the other parts of the appeal when the Veteran was not living in a nursing home. This evidence, as summarized above, shows significant social impairment, but not total social impairment, as stated above. The examiner in June 2012 was asked to provide an opinion as to the severity of the Veteran's current social and occupational functioning, and present a rationale for his opinion. This was accomplished. As total social impairment is not demonstrated, the criteria are not met for the assignment of a 100 percent schedular rating for anxiety disorder and panic disorder with agoraphobia at any time during the course of this appeal. The Board has also considered whether the record raises the matter of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). 38 C.F.R. § 3.321(b)(1) applies when the rating schedule is inadequate to compensate for the average impairment of earning capacity for a particular disability. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran's symptoms are significant social impairment with severe anxiety, isolation and fear, panic depression and worry with phobias. These are specifically contemplated by the schedule. Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER A 70 percent rating, but no higher, for the service-connected anxiety disorder and panic disorder with agoraphobia is warranted from October 26, 2006 to August 12, 2007, subject to the laws and regulations governing payment of monetary benefits. A disability rating in excess of 70 percent from February 1, 2008 is denied. REMAND In a January 2013 rating decision, the RO granted a TDIU, effective from January 23, 2002. In March 2013, the Veteran filed a Notice of Disagreement as to the effective date of the TDIU. Consequently, the Veteran is entitled to a Statement of the Case addressing the downstream issue of entitlement to an effective date prior to January 23, 2002 for the assignment of a TDIU. The failure to issue a Statement of the Case is a procedural defect requiring a remand. 38 C.F.R. § 19.26; Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED to the RO for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Provide the Veteran with a Statement of the Case as to the issue of entitlement to an effective date prior to January 23, 2002 for the assignment of a TDIU in accordance with 38 U.S.C.A. § 7105 (West 2002) and 38 C.F.R. §§ 19.26, 19.29, 19.30 (2012). If the Veteran perfects her appeal by submitting a timely and adequate substantive appeal, then the RO should return the claim to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs