Citation Nr: 1327456 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 09-42 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to a disability evaluation in excess of 50 percent for the period prior to March 15, 2013, and entitlement to a disability evaluation in excess of 70 percent for the period beginning March 15, 2013, for service-connected generalized anxiety disorder (GAD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected GAD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1998 to March 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Albuquerque, New Mexico Department of Veterans Affairs (VA) Regional Office (RO). In January 2012, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. The Board notes that this matter was previously before the Board in November 2012, at which time it was remanded for further development. In an April 2013 rating decision, after completion of the development instructed by the Board's November 2012 remand, the Veteran was granted entitlement to a disability evaluation of 70 percent, effective March 15, 2013. The Veteran has provided no indication that he is satisfied with the rating assigned in the April 2013 decision, and the issue of an increased disability evaluation therefore remains on appeal. The issue has been recharacterized accordingly. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. The issue of entitlement to a TDIU due to service-connected GAD, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to October 25, 2011, the Veteran's GAD manifested, at worst, in occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, panic attacks more than once a week, disturbances of motivation and mood, and irritability; it did not manifest in symptoms causing deficiencies in most areas. 2. From October 25, 2011, forward, the Veteran's GAD more nearly approximates occupational and social impairment with deficiencies in most areas such as near-continuous panic or depression affecting the ability to function, mild memory loss, impaired judgment, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, irritability, impaired impulse control, difficulty adapting to stressful circumstances, and chronic sleep impairment; these symptoms are not productive of total social and occupational impairment. CONCLUSIONS OF LAW 1. Prior to October 25, 2011, the criteria for a disability evaluation in excess of 50 percent for service-connected GAD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.21, 3.321(b), 4.130, Diagnostic Code 9400 (2012). 2. From October 25, 2011, the criteria for a disability evaluation of 70 percent, but no higher, for service-connected GAD have been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.21, 3.321(b), 4.130, Diagnostic Code 9400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. VA is also required to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The record reflects that prior to the initial adjudication of the claim, the Veteran was mailed a letter in February 2009 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The February 2009 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file, VA Medical Center treatment notes have been obtained, and the Veteran has been afforded the appropriate VA examinations. As will be discussed in more detail below, the Board notes that the March 2009, March 2011, and March 2013 VA examinations were conducted after a full reading of the claims file, including the Veteran's VA treatment records, physical examination of the Veteran, and an explanation of rationale for the opinions stated; and therefore, the Board finds the examinations adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board acknowledges that pursuant to the November 2012 Board remand, the Veteran was afforded a new VA examination in March 2013 and efforts were made to obtain private treatment records that were identified by the Veteran at his January 2012 Board hearing. In November 2012 the Veteran was sent a letter requesting he complete and return "Authorization(s) and Consent(s) to Release Information" in order for VA to attempt to obtain any available private treatment records. However, the record reflects that the Veteran did not submit the requested authorizations, or even reply to the November 2012 letter. In light of the foregoing, Board finds that that no further attempts to obtain the private treatment records are necessary and that there has been substantial compliance with the remand directives. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that "[t]he duty to assist is not always a one-way street. If a Veteran desires help with his claim, he must cooperate with VA's efforts to assist him...") Therefore, no additional remand is required and the Veteran will not be prejudiced by the Board adjudicating the claim at this time. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Also, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the January 2012 Board hearing, the VLJ fully explained the issue on appeal, and asked questions focused on the functional impairment of the disability in question, specifically as to the past and current severity of the symptoms caused by the Veteran's service-connected GAD. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked, or was outstanding, that might substantiate the claim. The Veteran identified outstanding private mental heath treatment records which might illustrate the severity of the Veteran's GAD symptoms. The VLJ informed the Veteran and his representative that the record would be held open for 60 days in order to provide them the opportunity to obtain those records and submit them to be considered with his claim. The Board notes that neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. Significantly, neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. II. Legal Criteria The Veteran asserts that he is entitled to a disability evaluation in excess of 50 percent for the period prior to March 15, 2013 and a disability evaluation in excess of 70 percent for the period beginning March 15, 2013, for his GAD with depression. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. Psychiatric disability is rated under the General Rating Formula for Mental Disorders. GAD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9400, which provides for a 50 percent evaluation for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty 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; difficult establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; 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 inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). 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. Id. However, 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 on the basis of social impairment. 38 C.F.R. § 4.126(b). The Global Assessment Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996). A score of 31 to 40 reflects some impairment in reality testing or communication or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood. A score of 41 to 50 is assigned where there are "[s]erious 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)." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 47 (4th ed. 1994). A score of 51 to 60 is appropriate where there are "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." Id. A GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. Id. at 46. While particular GAF scores are not contained in the VA schedule of ratings for mental disorders, 38 C.F.R. § 4.130, they are a useful tool in assessing a Veteran's disability and assigning disability evaluations. However, they are just one of many factors considered when determining an evaluation. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, including degree of disability, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3 The United States Court of Appeals for Veterans Claims (Court) has held that when the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). III. Factual Background and Analysis The Veteran was afforded a VA examination in March 2009. At that time, he reported that he was on medical leave from his job at Southwest Airlines due to an injury unrelated to his GAD. He reported that he lived alone and was separated from his wife, but that he shared in the caring responsibilities of their four year old daughter. He reported that he received psychotherapy and medication management at the VA Medical Center and that he continued to have chronic moderately severe anxiety symptoms, including chronic generalized anxiety, panic attacks, social anxiety, and irritability. He reported that his wife was unable to handle his emotionality, and the examiner noted that the Veteran's psychiatric disability was likely the cause of their separation. The Veteran reported that his most important relationship was the relationship with his daughter. He reported that he had panic attacks that necessitated visits to the emergency room or to his primary care provider at Presbyterian Hospital. He reported that he became irritable with fellow employees and his wife, and that virtually anything could spark his temper. On mental status examination, the Veteran was noted to be neatly dressed and groomed. He was fully cooperative in the interview process. The examiner noted that the anxiety symptoms were consistent with the subjective reports described by the Veteran. He was initially tense during the interview, but calmed down as the interview progressed. He was fully oriented and alert. Recent and remote memories were intact. His judgment and insight were noted to be good. There was no psychotic behavior noted, specifically there were no delusions, hallucinations, or thought disorder. The Veteran's thinking was well organized, goal oriented, and appropriately abstract. The examiner diagnosed GAD and assigned a GAF of 45. The examiner noted that the Veteran's GAD has clearly significantly undermined the quality of his psychosocial life. The Veteran was afforded another VA examination in March 2011. At that time, he reported that he suffered from an increase in depressive symptoms that he was told was related to his GAD. He reported that he had a positive work ethic, but that at times he felt he could not be at work and that he was almost never able to work a full work week. He stated that his marriage ended in 2006 because of his mood swings and irritability. He reported that he had joint custody of his six year old daughter, with whom he reported he had a positive relationship. He also reported that he had a positive relationship with his daughter's mother. He reported that he enjoyed hiking and spending time with his daughter and that he occasionally spent time with his friends from work. He reported panic attacks 1 to 2 times per week that caused symptoms of a racing heart, shortness of breath, and a feeling of confusion. He reported that these symptoms would last less than one hour in duration and that he tried to alleviate the symptoms by playing with his daughter or taking a walk or hike in the mountains. On mental status examination, the Veteran appeared clean and appropriately and casually dressed. His psychomotor activity was unremarkable and his speech was spontaneous, clear, and coherent. His attitude toward the examiner was cooperative, yet guarded, his affect was flat, and his mood was depressed. He was able to perform the serial 7's and spell a word forward and backward. He was oriented to person, time, and place. His thought process and content were unremarkable and he had no delusions. He was able to understand the outcome of his behavior and his intelligence was noted to be average. He was noted to have difficulty falling and staying asleep. He reported sleeping, on average, 5 hours per night, and that he suffered from lower energy levels than in the past. He denied experiencing any nightmares. The Veteran was noted to have inappropriate behavior, in that he endorsed episodes of irritability and reported that he tended to argue with people periodically. He was able to interpret proverbs appropriately and he did not have any obsessive or ritualistic behavior. He denied suicidal or homicidal ideation and his impulse control was noted to be good. The examiner noted that the Veteran did not have any problems with activities of daily living. His remote, recent, and immediate memory were all normal. The examiner noted that the Veteran had lost approximately 25 weeks of work in the past 12 month period due to his GAD. The loss in work was due to the fact that he used vacation and sick time regularly due to his anxiety symptoms. The Veteran reported that his employer did not have an issue with his missed time as the Veteran was frequently able to get his shifts covered by a co-worker. The examiner diagnosed GAD and depressive disorder and assigned a GAF of 55. The Veteran was afforded another VA examination in March 2013. At that time, he reported he felt nervous and anxious nearly every day. He reported that he was unable to stop or control his near daily worrying and that he worried too much about different things. He reported that he had trouble relaxing and that he was so restless it was difficult to sit still. He reported that he became easily annoyed and irritable and that he frequently feared that something awful might happen. He reported depression, loss of energy and tiredness, irritability, and agitation. He reported that he consumed approximately a 12 pack of beer and one bottle of vodka on a weekly basis. The Veteran reported that he had a good relationship with his sister and his nephews. He reported that he and his wife had a "rocky" relationship and had seen four marriage counselors. He reported that he had a short fuse and had gotten into arguments with strangers. He also reported that his short fuse caused conflict with his wife. He reported that he worked approximately 30 hours over a two week period. On examination, the Veteran was found to exhibit depressive symptoms that included: self-dislike, loss of energy, tiredness, fatigue, pessimism, past failure, guilty feelings, agitation, loss of interest, worthlessness, changes in sleeping pattern (less), irritability, changes in appetite (more), concentration difficulty, loss of interest in sex, sadness, loss of pleasure, punishment feelings, self-criticalness, crying, and indecisiveness. The Veteran was noted to have depressed mood and anxiety with panic attacks that occurred weekly or less often. He was also noted to have near continuous panic or depression which affected his ability to function independently, appropriately, and effectively. He was noted to have chronic sleep impairment and mild memory loss. His judgment was found to be impaired and he had disturbances in motivation and mood. He had difficulty establishing and maintaining effective work and social relationships and difficulty adapting to stressful circumstances, including work or a work-like setting. The examiner noted that the Veteran's GAD and depression resulted in occupational and social impairment with reduced reliability and productivity. The examiner opined that the Veteran's GAD and depression resulted in moderate to severe impairment to the Veteran's ability to function independently, appropriately, and effectively; to his ability to adapt to a stressful work setting; and to his ability to maintain a relationship with his spouse that was mutually beneficial. Also of record are VA treatment records that show the Veteran receives intermittent treatment at the Albuquerque VAMC for his GAD. A review of these records shows that the Veteran has complained of depression, anxiety, irritable mood, poor sleep, anhedonia, poor motivation, panic attacks with symptoms of palpitations, sweating, feeling hot, sometimes nausea, and sometimes lightheadedness. A specific VA treatment record from October 25, 2011 (associated with the Veteran's "Virtual VA" file), shows that the Veteran was seen for complaints of difficulty sleeping, anxiety, and depression. He reported moodiness and insomnia and that these symptoms were impacting his work and his relationships with family and friends. He reported that he felt anxious in public and would have sudden panic attacks with physical symptoms of increased heart rate, clammy and sweaty hands, and he would feel hot. He reported that he felt anxious every day, but that he would have full blown panic attacks 2 to 3 times a week, primarily triggered by being around other people. He reported that he frequently changed his work shifts with co-workers in order to avoid going out in public. He reported that it would take him 2 hours to fall asleep at night and that he rarely slept more than one hour a night as he awakened 4 to 5 times per night. He reported that he was discouraged by his symptoms and that he was depressed by his overall mood and was irritable. He reported that he had little interest or pleasure in doing things, but that he used to play sports and exercise regularly. On October 25, 2011 mental status examination, the Veteran was noted to be well groomed, friendly, and cooperative. He was open with the interviewer, especially after getting over his initial frustrations and irritability. He displayed no psychomotor retardation or excitation and was not hyperactive or agitated. He was fully alert and fully oriented. His speech was normal and his thought processes were noted to be organized, coherent, logical, and goal directed. His thought content was notable for his frustrations over trying to get care, but he denied any suicidal or homicidal ideation, intent, or plan. His mood was irritable, mildly depressed, and anxious. His affect was blunt and his judgment was normal. The Veteran's treating psychiatrist noted that while the Veteran had developed panic disorder with agoraphobia during active service, there was some level of concurrent depression consistent with dysthymia and that the Veteran's current employment taxed his physical problems. The psychiatrist assigned a GAF score of 55. The remainder of VA treatment records show that the Veteran had been assigned GAF scores ranging from 52 to 60 and has been prescribed various psychiatric and anxiety medication during the course of his mental health treatment. Of record is March 2012 letter from D.M., a licensed clinical social worker, who provided the Veteran with outpatient therapy from November 2010 to March 2011. In this letter, D.M. states that the Veteran presented with constant anxiety, worry, panic, depression, and feelings of being overwhelmed by his relationship and being a single parent. She reported that throughout the four months that she treated the Veteran, he described continuous feelings of panic and anxiety which he was unable to control. She stated that the Veteran seemed to lack insight as to the impact the anxiety, panic, and depression had on a person's life, and that he eventually began to realize how debilitating the disability was. She stated that the Veteran learned some techniques to help him relax and to be less impulsive in his decisions. In support of his claim, the Veteran has submitted numerous lay statements from his friends, family, and co-workers. The letters from the Veteran's friends explain that prior to his active service, the Veteran did not suffer from any of the symptoms associated with his GAD and that following his active service he has been a different person. His friends stated that he is always anxious, depressed, and is quick to anger. The Veteran's spouse also submitted a lay statement in which she stated that he has difficulty falling asleep, he suffers from anxiety and panic attacks, and that he is easily agitated. The statements from the Veteran's co-workers corroborated the Veteran's statements that he frequently misses work due to his GAD. In a December 2010 statement in support of his claim that Veteran stated that his GAD symptoms had worsened. He stated that he was unable to maintain any type of mental or physical relationship with a companion or his family. He also stated that he was unable to focus on work because of his severe depression, which at times left him unable to get out of bed and prevents him from going to work. He reported that his GAD had affected his physical appearance in that he had gained approximately 55 pounds and personal hygiene duties had become difficult. He reported that he had no friends due to his inability to be around people, that his thoughts would race, and he felt like a failure. In a subsequent, March 2011, statement in support of his claim, the Veteran reiterated that his GAD symptoms had worsened. He reported that he found it increasingly difficult to handle everyday life, work, and family because of his severe depression, which was constantly getting worse. At a January 2012 Board hearing, the Veteran testified that his GAD had increased in severity and that he suffered from regular mood swings and anxiety. The Veteran testified that even attending the hearing made him anxious and uncomfortable. He reported that his GAD had caused him to have confrontations with fellow employees and also caused him to miss, on average, two days of work per week. The Board finds that for the period prior to October 25, 2011, a disability evaluation in excess of 50 percent for his service-connected GAD is not warranted. In this regard, the Board notes that the Veteran's GAD was manifested by symptoms of anxiety, depression, flattened affect, disturbances of motivation and mood, sleep disturbances, panic attacks more than once a week, and irritability. Additionally, during the period prior to October 25, 2011, the Veteran had been assigned GAF scores ranging from 45 to 60, both by VA examiners and his VAMC treatment providers. The Board notes that a GAF score of 45 suggests symptoms indicative of serious impairment; however, the Board finds that the symptoms described above more nearly approximate those contemplated by the 50 percent rating criteria, and thus the basis for 50 percent disability evaluation for the period prior to October 25, 2011. 38 C.F.R. § 4.130, Diagnostic Code 9400. The Board acknowledges that the results of the VA examinations and the symptoms described in the VA examination reports and various mental health treatment notes do not indicate that the Veteran experiences all of the symptoms associated with a 50 percent disability evaluation for a psychiatric disability. However, the U.S. Court of Appeals for Veterans Claims (Court) has held that the symptoms enumerated under the schedule for rating mental disorders 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 disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, a finding that there is occupational and social impairment resulting in reduced reliability and productivity is sufficient to warrant a 50 percent disability evaluation for the period prior to October 25, 2011, even though all the specific symptoms listed for a 50 percent evaluation are not manifested. Consideration has been given to assigning a higher disability evaluation for the period prior to October 25, 2011. However, there is no indication from the evidence of record that the Veteran has experienced occupational and social impairment with deficiencies in most areas. In this regard, the Board notes that the Veteran reported at his March 2011 VA examination that he was able to maintain a positive relationship with his daughter and his daughter's mother and that he had a few friends at work, with whom he occasionally spent some time, and the Veteran was noted to have maintained a successful relationship with his significant other since 2008, to whom he was married in December 2011. Additionally, the Veteran has reported that he likes going hiking and walking; he has not shown difficulties in judgment and thinking, he does not have homicidal ideations, he does not exhibit obsessional rituals which interfere with routine activities, and his speech is normal. Further, the Veteran has been noted to be able to maintain minimal personal hygiene and it has been noted that his GAD symptoms do not interfere with his daily activities. Therefore, the Board finds that a disability evaluation of 70 or 100 percent is not warranted for the period prior to October 25, 2011. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board finds that beginning October 25, 2011; the date of the VA treatment record that first reflects an increase in the Veteran's GAD symptoms since his March 2011 VA examination, the Veteran is entitled to a disability evaluation of 70 percent for his service-connected GAD. In this regard, the Board notes that in October 2011, the Veteran reported symptoms of daily anxiety with 2 to 3 panic attacks weekly, depression, and sleep disturbances, and that these symptoms had begun to impact his work and relationships with family and friends. Further, in accordance with the November 2012 Board remand, the Veteran was afforded a new VA examination in March 2013, at which time it was noted that his GAD was manifested by near-continuous panic or depression affecting the ability to function, mild memory loss, impaired judgment, disturbances in motivation and mood, difficulty concentrating, difficulty in establishing and maintaining effective work and social relationships, irritability, impaired impulse control, difficulty adapting to stressful circumstances, and chronic sleep impairment. The Veteran was noted to have a severe sense of self-dislike and loss of energy. He was also noted to have moderate symptoms of pessimism, feeling of past failure, guilt feelings, agitation, loss of interest, feelings of worthlessness, changes in appetite, and loss of interest in sex. Further, the Veteran had mild symptoms of sadness, loss of pleasure, feelings of punishment, self-criticalness, and indecisiveness. Additionally, the Veteran was assigned a GAF score of 50, which is indicative of serious symptoms or serious social or occupational impairment. Therefore, the Board finds the October 25, 2011 VA treatment record, when the Veteran was treated for complaints of worsening symptoms of anxiety, depression, and insomnia, to be evidence that his GAD symptoms had worsened to the point that they more closely approximate the criteria contemplated by the 70 percent disability evaluation. 38 C.F.R. § 4.130, Diagnostic Code 9400. The Board acknowledges that the results of the VA examinations and the symptoms described in the VA examination reports and VA treatment records, do not indicate that the Veteran experiences all of the symptoms associated with a 70 percent disability rating for a psychiatric disability. However, the Court has held that the symptoms enumerated under the schedule for rating mental disorders 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 disability evaluation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, a finding that there is occupational and social impairment resulting in deficiencies in most areas is sufficient to warrant a 70 percent disability evaluation for the period beginning October 25, 2011, even though all the specific symptoms listed for a 70 percent evaluation are not manifested. Consideration has been given to assigning a higher disability evaluation for the period beginning October 25, 2011. However, the Board finds that there is no reasonable basis for concluding that the social and occupational impairment during this period more nearly approximated total than deficiencies in most areas. In this regard, there is no indication from the evidence of record that the Veteran had 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, and significant memory loss (i.e. for names of close relatives, own occupation or own name). Further, while the evidence of record indicates that the Veteran's service-connected GAD does significantly impact his ability to work, as he testified at his Board hearing that he missed, on average, two days of work per week and he reported at his March 2013 VA examination that he only worked 15 hours per week, this does not show total occupational impairment. Therefore a higher evaluation is not warranted for the period beginning October 25, 2011. 38 C.F.R. § 4.130, Diagnostic Code 9400. Extra-Schedular Consideration 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 disabilities at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the disability with the established criteria provided in the rating schedule for the disabilities. If the criteria reasonable describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluations are therefore adequate, and no referral for extra-schedular consideration is require. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidentiary record does not show any manifestations of, or functional impairment due to, the Veteran's GAD that are not encompassed by the schedular criteria. While the Veteran reported at his March 2009 VA examination that he sometimes required emergency treatment for his panic attacks, the later examination reports of record indicate that he was able to manage his panic attacks with medication and methods learned in treatment. Further, there is no evidence suggesting the Veteran received regular inpatient care for his GAD. The Board notes that the record strongly suggests that the Veteran's GAD impacts his ability to work; however, this issue is discussed in the remand portion below. In sum, there is no indication that the average industrial impairment from the Veteran's GAD would be in excess of that contemplated by the disability evaluations assigned herein. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. ORDER The Veteran's GAD does not warrant a disability evaluation in excess of a 50 percent for the period prior to October 25, 2011; to this extent, the benefit sought on appeal is denied. The Veteran's GAD warrants a disability evaluation of 70 percent, but not higher, beginning October 25, 2011; to this extent, the benefit sought on appeal is granted, subject to the criteria applicable to the payment of monetary benefits. REMAND The Board finds that additional development is required before the Veteran's remaining claim on appeal is decided. At the outset, the Board notes that, in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court in Rice also found that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. In this case, the evidence suggests that the Veteran is unable to maintain substantially gainful employment as a result of his service-connected GAD. In this regard, the Board notes that the Veteran testified at his January 2012 Board hearing that he missed, on average, two days of work per week. Further, at his March 2013 VA examination, the Veteran reported that he was only working 15 hours per week. Therefore the Board finds that a TDIU claim has been raised in this case, and the issue is remanded to the AOJ for proper development. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice as to what information or evidence is needed to substantiate a claim for TDIU. 2. Then, the Veteran should be afforded a VA psychiatric examination of his service-connected GAD. The examiner should note any impairment caused by the Veteran's GAD, including a full description of the effects of his disability upon his ordinary activities, if any. The claims files must be made available to and reviewed by the examiner. All tests and studies deemed necessary by the examiner should be performed. The VA examiner is asked to render an opinion as to the functional impairment caused by the Veteran's service connected GAD. The examiner should provide this opinion considering the Veteran's education and occupational experience, but irrespective of age and any nonservice-connected disabilities. The complete rationale for all opinions expressed must be provided. 3. When the development requested has been completed, and the RO or the AMC has ensured compliance with the requested actions, this case should again be reviewed and readjudicated by the RO or the AMC on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs