Citation Nr: 1327891 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 09-42 858 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for the service-connected anxiety disorder, not otherwise specified, beginning on October 19, 2011. 2. Entitlement to a total disability rating based on individual unemployability by reason of service-connected disability (TDIU). ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from January 1976 until December 1979. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from November 2008 and August 2009 rating decisions from the RO. The Board previously considered the appeal in April 2011 for additional development. The Appeals Management Center (AMC) completed all requested development, but continued the denial of the benefits sought. The Board again considered the appeal in June 2012. At that time the Board assigned an increased rating of 50 percent, but no higher, for the service-connected anxiety disorder for the period prior to October 19, 2011, and remanded the issues of an increased rating beginning on October 19, 2011, and entitlement to a TDIU rating for further development. As such, the issue of an increased evaluation of the service-connected anxiety disorder for the period prior to October 19, 2011, is no longer on appeal. The AMC completed all requested development, but continued the denial of the benefits sought. As such, the pending matters are properly returned to the Board for appellate consideration. The issue of entitlement to a TDIU rating is being remanded to the RO via AMC in Washington, DC. FINDING OF FACT For the period on beginning October 19, 2011, the service-connected anxiety disorder is shown to be productive of a disability picture that more nearly approximates that of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW For the period beginning October 19, 2011, the criteria for the assignment of an evaluation of 70 percent for the service-connected anxiety disorder have been satisfied. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125-4.130 including Diagnostic Code 9413 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. In this case, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in July 2008, March 2009, May 2011, June 2012, July 2012 and December 2012 that fully addressed all notice elements. The claim was readjudicated in a February 2013 Supplemental Statement of the Case. Furthermore, as this is an appeal arising from the initial grant of service connection, the notice that was provided in July 2008 before service connection was granted was legally sufficient and VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Accordingly, the duty to notify has been met. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and also providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO obtained the Veteran's service treatment records, private medical records and reports of VA examinations. The Veteran also submitted private medical records and lay statements in support of his claim. As noted in the Introduction, this claim was previously remanded in April 2011 and June 2012. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (the Court) held that compliance with remand instructions is neither optional nor discretionary. The Court further held that the Board errs as a matter of law when it fails to ensure compliance with remand orders. In the present case, the claim was remanded in April 2011 to obtain records and obtain a VA examination. On remand, the AMC obtained updated VA outpatient treatment records and requested the Veteran submit an authorization for release of records to obtain private records in a May 2011 letter. The requested VA examination was obtained in October 2011. The claim was again remanded in June 2012 as the Board found the October 2011 VA examination did not comply with the prior remand and specifically did not discuss the effect of the service-connected disabilities on employment. Accordingly, the Board remanded the claim again for a VA examination and any further updated treatment records. Additional VA and private treatment records were associated with the claims file and another VA examination was obtained in January 2013. As such, the Board finds that the AMC substantially complied with the June 2012 remand order. The Veteran was afforded VA examinations in October 2011, June 2012 and January 2013 in connection with his claim. These reports were rendered by medical professionals following a thorough examination and interview of the Veteran and a review of the claims file. The VA examiners laid a factual foundation and reasoned basis for the conclusions that were reached. As such, the Board finds the examinations are adequate for the claim concerning an increased evaluation for the anxiety disorder. The Board notes that the January 2013 VA examiner called into question the validity of the findings of the private physician. While the private physician might not have a doctorate degree, the physician was a specialist in the field, had knowledge of the Veteran's history and symptoms, and there is no indication that the physician was unlicensed or inaccurately portraying the Veteran's symptoms. see Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (Observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches). Therefore, the Board finds no reason to question the findings reported by the private physician. The Veteran has not identified any other outstanding, available evidence that has yet to be obtained. Accordingly, the Board finds that all necessary development has been accomplished and no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd sub nom. Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Law and Analysis The Veteran seeks an increased evaluation for his service-connected anxiety disorder. The RO granted service connection for anxiety disorder in a November 2008 rating decision. At that time, a 30 percent evaluation was assigned pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9413, effective on May 30, 2008. As noted in the Introduction, during the pendency of the appeal, the Board granted an increased 50 percent evaluation and the RO implemented this grant in a June 2012 rating decision, effective on May 30, 2008. The Board declined to assign a rating higher than 50 percent for the period prior to October 19, 2011 and remanded the issue of the rating for the period beginning on October 19, 2011. Accordingly, the only issue remaining on appeal is whether an evaluation in excess of 50 percent is warranted for the period beginning October 19, 2011. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board notes that the Veteran is appealing the initial assignment of a disability rating, and as such, the severity of the disability is to be considered during the entire period from the initial assignment of the evaluation to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). The Court has also held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The service-connected anxiety disorder is evaluated under Diagnostic Code 9413. The regulations pertaining to the criteria for evaluating psychiatric disorders, including anxiety disorder, provide for a 50 percent rating when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9413. A higher 70 percent evaluation will be assigned where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; 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 work-like setting); and the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted when there is total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. In evaluating psychiatric disabilities, VA has adopted the Diagnostic and Statistical Manual of Mental Disorders, 4th ed., American Psychiatric Association (DSM-IV). That manual includes a Global Assessment of Functioning (GAF) scale which takes into consideration psychological, social and occupational functioning on a hypothetical continuum of mental illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV). A score of 21-30 indicates behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day, no job, home or friends). A score of 31-40 indicates 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 younger children, is defiant at home, and is failing at school). A score of 41-50 indicates 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). A score of 51-60 indicates moderate 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 peer or coworkers). See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington, DC, American Psychiatric Association, 1994. The evidence for consideration in this case includes VA outpatient treatment records, VA examination reports, private medical records, and lay statements. As discussed, the relevant question in this matter is the state of the Veteran's disability for the period beginning on October 19, 2011. The Veteran was afforded a VA examination in October 2011 and was diagnosed with anxiety disorder, not otherwise specified, and a personality disorder. A GAF of 58 was assigned. The examiner concluded the anxiety disorder resulted in occupational and social impairment with reduced reliability and productivity. The examiner explained that the anxiety and personality disorder were mutually aggravating conditions and, therefore, the impact on psychosocial functioning could not be separated without resorting to mere speculation. The examiner noted that the Veteran had been married since 1995 or 1996 and had a son, daughter and stepson who called him, but with whom he did not initiate contact. He also had one friend who he saw every once in a while. He denied having hobbies and was currently unemployed. He denied having psychiatric hospitalizations or suicide attempts in the past 3 years. Current symptoms included those of anxiety when driving, nightmares, depressed mood, anxiety, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. He denied having aggressive or violent behavior and reported keeping to himself. He did not have memory loss, impaired judgment or thinking, suicidal or homicidal ideation, impaired impulse control, spatial disorientation, or persistent delusions and hallucination. He did not have grossly inappropriate behavior, and the examiner indicated there was not a danger of hurting himself or others. The Veteran described being depressed due to a decrease in his functioning. He was casually and appropriately dressed and groomed. He had minimal eye contract. Speech was slow, but thought processes were linear and goal oriented. Mood was anxious and depressed, and the Veteran had a flat affect. The Veteran was afforded another VA examination in June 2012 and at that time was diagnosed with anxiety disorder, not otherwise specified and the examiner indicated that the Veteran presented with a mixture of depressive and generalized anxiety symptoms. The examiner noted that the symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactory with normal routine behavior self care and conversation. The Veteran was noted to live at home with his wife. He described doing intermittent childcare duties of the grandchildren, but indicated that this raised his stress level and general irritability. He self-isolated from his wife and grandchildren when his anxiety was high. He was unemployed, but occasionally did an odd job in the neighborhood. He had depressed mood, anxiety, panic attacks weekly or less often, chronic sleep impairment, disturbance of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a worklike setting, and impaired impulse control such as unprovoked irritability with periods of violence. The examiner indicated that the Veteran also had mild agoraphobic avoidance behavior, a mild phobic reaction while driving/riding in a car, and homicidal ideation without intent (triggered by low frustration tolerance/irritability). The symptom validity testing was evenly mixed between valid and invalid performances, and as such, the examiner indicated the scales were judged to be at least likely as not valid and accurate estimates of his current psychiatric state and symptoms. His responses on MMPI-2 best fit the profile code typical of individuals who tended to internalize psychiatric stress and turmoil and exhibit psychosomatic symptoms. The Veteran reported having mild to moderate level of emotional distress characterized by tension, anxiety and dysphoria and feeling that he was unable to get going and get things done. He frequently worried, was more sensitive and felt more intensely than most people. He was often irritable and grouchy and would be angry when people hurried him. He also became angry with himself for giving into others so much. He had become so angry he felt he would explode. He reported an ever increasing level of subjective distress and negative affect that might be totally debilitating. He frequently was seen as maladjusted and emotionally upset that was reflective of a situational crisis or a more chronic problem. He reported having nervousness, worries, general symptoms of anxiety, and sleep and concentration difficulties. He had difficulty making decisions, feared he was losing his mind and was afraid he was about to go to pieces. He found life a strain and worked under a great deal of tension and stress. The Beck anxiety index was supportive of a significant amount of generalized baseline anxiety with specific symptoms rated moderate to severe including a fear of losing control, numbness/tingling, inability to relax, fear of the worst happening, being terrified and generalized nervousness. Overall, the Veteran's neurobehavioral presentation, clinical symptoms, mental health treatment history, and current psychological testing results were all supportive for the presence of mixed anxiety and depression symptoms with generalized-type anxiety predominating. The functional impact was judged to be moderate with a GAF of 65. The Veteran submitted a statement of a private psychologist in June 2012 who reported diagnoses of PTSD, chronic and severe, depressive disorder and alcohol and substance dependence, in remission. The GAF was noted to be 30. The psychological associate explained that the Veteran continued to have significant distress from PTSD symptoms, including poor sleep with nightmares and night sweats. He was more irritable and less tolerant around other people. When he got irritated he walked away because he was afraid he would get so enraged he would hurt someone. His frustration tolerance was low. He had mood swings and was not able to self sooth. Psychomotor agitation and short term memory problems were noted. He had a hard time finishing tasks and isolated more, including not going to family events. He was very anxious if required to drive. He had been unemployed since 1998 and was fired from the last job for poor performance and conflicts with coworkers and management. Insight and judgment were limited. The private physician concluded that, due to the severity and chronicity of symptoms, the Veteran's prognosis for recovery was poor. Hypervigilance and hyperarousal prevented him from being consistently productive at any job. Memory and concentration problems negatively affected his ability to learn new skills and cognitive problems prevented him from performing jobs requiring extended periods of concentration, problem solving or decision making. Hyperirritability and hypervigilance resulted in him being severely compromised in his ability to initiate or sustain work relationships. His isolating behaviors severely compromised his ability to initiate or sustain social relationships. The psychologist considered him totally and permanently disabled and unemployable. A December 2012 VA outpatient treatment record noted the Veteran's complaints of still feeling moody and being hard to get along with. He was more energetic and outgoing than in the past. He felt ongoing pain was the major cause of depression and described ongoing cold sweats and difficulty sleeping overnight, including nightmares related to the military. He denied suicidal or homicidal ideation. He denied cognitive deficits. He was alert and awake with no abnormal movements and was casually dressed. Speech had a normal rate, volume and prosody. He was moody, and affect was euthymic. Thought processes were linear, logical and goal directed. No suicidal or homicidal ideation was noted. He endorsed visual and auditory hallucinations of not responding to internal stimuli. There were no delusions. Insight and judgment were fair, and cognition was grossly intact. The assessment was that of generalized anxiety disorder and polysubstance abuse with borderline antisocial traits with ongoing symptoms of anxiety and low mood. He was a low risk of self harm and was assigned a GAF of 50. The Veteran was afforded a VA examination in January 2013 and was diagnosed with anxiety disorder that the examiner felt likely began during the Veteran's childhood and was less likely related to the motor vehicle accident. The examiner also diagnosed an axis II personality disorder with traits including rule breaking, physical aggravation and disregard for safety and indicated it was likely the anxiety and personality traits were mutually aggravating. The GAF was estimated to be 65, and the examiner explained that there were suggestions of exaggeration and the assigned GAF included maladaptive functioning due to a personality disorder. The examiner explained the personality disorder affected almost all daily activities so it was difficult to separate any additional difficulties. The examiner indicated that the symptoms resulted in occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. The examiner noted symptoms of anxiety and chronic sleep impairment. No other symptoms were found or noted. The examiner provided a detailed history for the Veteran and found that current testing to assess symptom validity was quite elevated indicating a significant exaggeration in the reporting of symptoms. The examiner explained that the SIMS score was significantly above the recommended cutoff indicating an attempt to intentionally portray oneself in a negative light. The examiner cited to the TOMM testing performed in June 2012 that also suggested symptom exaggeration and reported that the other test administered on that date was considered invalid and the scores were not reported. Similarly, the examiner noted evaluators in 2008 found strong personality correlation of entitlement and irritability and concluded that the personality disorder accounted for a large portion of the difficulties he had with employment. The examiner therefore attributed the current symptoms to long standing interpersonal difficulties (anxiety, personality and substance abuse) which preceded service and were not aggravated by service. The examiner noted the prior GAF of 35 came from a provider who did not have a doctorate degree. The Veteran had two very different opinions concerning his functioning within a two day period in June 2012. The examiner noted the main concern was the sleep problem and explained that the sleep apnea was a medical cause of interruptions in sleep and fatigue. The examiner further opined that the anxiety disorder did not cause specific problems with work functioning. The examiner explained the Veteran had been viewed as having an anxiety disorder from the accident in Hawaii in 1978, but worked nine years at Duke Power following this event and did not begin treatment until 2004, after a traumatic event that was unrelated to service. Even after this incident, he continued to operate a business. The examiner concluded the service-connected anxiety was secondary and concurred with the 2008 physician that the primary impairment was from the personality disorder. Those symptoms were static and unlikely to change without significant psychotherapy and the maladaptive coping skill patter appeared ongoing. The Veteran submitted a February 2013 statement of a private psychiatrist. The psychiatrist noted the diagnoses of PTSD and chronic major depression and reported a GAF score of 35. The Veteran reported that he had been married to his second wife for 17 years and had been unemployed since 1998. The Veteran explained the nightmares occurred at least 2-3 times a week, waking him in panic and sweats. He had flashbacks with reminders and panic attacks 2-3 times a week. He averaged 4-5 hours sleep a night. He had intrusive thoughts, startled easily, was hypervigilant and could not tolerate anyone behind him. He did not socialize. Recent memory was impaired so much that he cannot remember what he read and got lost when traveling. His working memory was 70 % impaired. Anger, sadness, and fear came upon him without understanding why 65% time, which indicated a prefrontal cortex dysfunction. He heard his name, heard cars drive up and heard noises in the house once or twice a day. He also described seeing shadows moving out the corners of his eyes once or twice a day. These hallucinations or illusions occurred when no one or nothing is there. He felt depressed 60% time with no energy and little interest in things. He angered and became agitated easily. He felt helpless at times and suicidal sometimes. Because of the service connected PTSD, he was noted to be unable to sustain social relationships and work relationships. Therefore, he was considered permanently and totally disabled and unemployable. The underlying treatment notes reflected the Veteran maintained eye contact and was cooperative, alert and oriented to person, place and time. He was distractible. He had recent memory. Mood was depressed and irritable, and affect was labile and blunted. Thought processes were linear and goal directed. He had auditory and visual hallucinations, but was aware of his problems, understood facts and could draw conclusions. The Veteran also submitted a July 2012 statement of his spouse. She related that they had been married for sixteen years and lived as a recluse and seldom participated in activities outside the house. Irritability and suspicions alienated him from the family and caused two separations during the marriage. Medication helped his irritability and anger, but there were still periods of anxiety and unpredictable mood swings. He had nightmares where he seemed to be fighting or arguing in his sleep and had struck her in his sleep several times. She had to do most driving. She explained that he never sat with back to the door and always looked for exit. He seldom talked of his experience in the army. She felt his ability to work with others had not been favorable and indicated that he did not accept change well and that new tasks increased his anxiety. She felt their marriage was on a day-by-day basis. Decision making was minimal, and he preferred to not discuss life altering decision or handle day to day situations. It is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence. See Owens v. Brown, 7 Vet. App. 429 (1995). In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)(holding that credibility can be impeached generally by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character). It has also been observed that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence." Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997). As an initial matter, the record reflects that the Veteran has other psychiatric diagnoses, most significantly depression, PTSD and a personality disorder. Concerning the depression and PTSD, the records do not differentiate between the symptomatology attributed to the nonservice-connected depression and/or PTSD and the service connected anxiety. Accordingly, all symptoms will be considered as part of the service-connected disorder. Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). Concerning the personality disorder, the October 2011 VA examiner explained that the anxiety and personality disorder were mutually aggravating conditions and that the impact on psychosocial functioning could not be separated without resorting to mere speculation. To the extent that the January 2013 VA examiner attributed the entire anxiety disorder to the Veteran's childhood and found the current symptoms were due to longstanding interpersonal difficulties that preceded service, the examiner still noted that it was difficult to separate any additional difficulties. Giving the Veteran the benefit of the doubt, the Board will consider all symptoms to be part and parcel of the service-connected anxiety. Id. The January 2013 VA examiner also indicated a high level of exaggeration of symptoms. Although the January 2013 VA examiner cited to elevated levels on testing which suggested malingering, the Board notes that the June 2012 VA examiner concluded that symptom validity testing was mixed evenly and as such he judged all symptoms to be valid and accurate estimates of the Veteran's current state. Even if the validity testing in January 2013 indicated symptom amplification, reviewing the record as a whole, the Board notes that the symptoms described during this examination were not so different from symptoms reported during other examinations and mental health treatment visits. Accordingly, for this reason, the Board will consider all symptoms reported to be accurate and valid depictions of the Veteran's psychiatric state. Applying the facts to the applicable rating criteria, the Board finds that the service-connected disability picture more closely resembles the criteria for an increased evaluation of 70 percent in this case. The Veteran, among other things, was noted to be virtually isolated and irritable, to have frequent flashbacks and sleep disturbance related to his accident, and to have experienced some hallucinations and delusions. The Veteran had also been described during the June 2012 VA examination as having an impaired impulse control and difficulty adapting to stressful circumstances as well as homicidal ideation without intent that was triggered by low frustration tolerance and irritability. Similarly, the June 2012 private medical report noted that the Veteran occasionally would be so irritated he walked away as he was afraid he would hurt someone. The June 2012 and February 2013 private reports also discussed the presence of memory impairment. Therefore, in this matter, the Board finds that an increased rating of 70 percent is warranted. Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). However, the evidence throughout the entire appeal period does not demonstrate total occupational and social impairment to warrant the assignment of a 100 percent schedular rating. There is no doubt that the Veteran's anxiety symptoms interfere with his functioning. However, his symptoms are not found to rise to the level of total occupational and social impairment, a level of severity so disabling that some of the examples of symptoms include not knowing one's own name or posing a persistent threat of danger to self or others. The Veteran has always been oriented in all spheres, and in spite of the increased irritability and homicidal ideation; he has never deemed to be an actual threat of danger to himself or others. In fact, the October 2011 VA examiner found that he was not a threat to others, and the Veteran denied having aggressive or violent behavior at that time. Similarly, the June 2012 VA examination and June 2012 private report indicated that the Veteran would remove himself from situations when he became increasingly irritated. While he was reported to have hallucinations, they were never described as persistent. Additionally, the Veteran had never presented with evidence of illogical speech or impaired thought processes. In fact, the October 2011, June 2012, and January 2013 VA examinations indicated that he did not endorse these symptoms. Similarly, the Veteran was never found to have an inability to perform activities of daily living. Rather, the Veteran was always described as appropriately dressed and was never noted to be unable to perform activities of daily living. In short, the Veteran has not demonstrated symptoms even suggestive of total occupational and social impairment. Furthermore, the Veteran's symptoms (nightmares, depression, anxiety while driving, sleep trouble, hallucinations, flashbacks, etc.) have not been demonstrated to be so frequent and disabling as to result in total occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (finding that symptoms contained in rating schedule criteria 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."). In spite of the Veteran's symptoms, he stayed married for over 17 years. During the October 2011 VA examination, he reported having contact with his son, daughter, stepson, grandchildren and one friend. While he was noted to have memory impairment, particularly during the February 2013 private record, he was never found to have impairment to such a degree he could not remember his own name. Moreover, the February 2013 private record noted that his recent memory was intact. The Board also finds it significant that the Veteran has not required recent hospitalization. Additionally, the Veteran's GAF scores do not reflect total occupational and social impairment. Although the evidence of record reflects that the Veteran has been periodically assessed as having Global Assessment of Functioning (GAF) scores as low as 30, one such score alone would not be dispositive of the Board's inquiry. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); (Observing that GAF is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health- illness" under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition.); see Richard v. Brown, 9 Vet. App. 266, 267 (1996). The Veteran's GAF score have ranged during the appeal period from 30 to 65. While the GAF scores of 30 would represent symptoms resulting in an inability to function in almost all areas, the scores of 65 would be indicative of mild symptoms. Furthermore, the record reflects that, at the time of the June 2012 and February 2013 private evaluations when the psychologist assigned the GAF of 30 and 35 respectively, the symptoms were noted to be poor sleep with nightmares, irritability and feeling he would hurt someone, mood swings, isolation and anxiety, hypervigilance, hallucinations and memory problems. These symptoms are severe, but they do not support a finding of "behavior considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g. sometimes incoherent, acts grossly inappropriately, suicidal preoccupation or inability to function in almost all areas (e.g. stays in bed all day, no job home or friends). In fact, at the time of the June 2012 evaluation, the Veteran appropriately walked away from situations when he was irritated and did not endorse hallucinations or suicidal ideation. At the time of the February 2013 evaluation, the psychiatrist indicated the Veteran was aware of his problems, understood facts and could draw conclusions. Considering the GAF scores in light of these symptoms noted to exist at the time of the evaluations reflects the overall symptoms experienced by the Veteran are more definitely more consistent with the kind contemplated by the criteria for the 70 percent rating. Based upon the guidance set forth in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether staged ratings are appropriate. In the present case, the Veteran's symptoms are found to more closely resemble the criteria for a 70 percent evaluation for the period of the appeal after October 19, 2011. Extraschedular Rating The Board has also considered whether the Veteran's anxiety disorder warrants referral for extraschedular consideration. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination concerning whether, to accord justice, the claimant's disability picture requires the assignment of an extra- schedular rating. Id. In this case, the evidence does not show that the service-connected disability picture is exceptional or unusual, insofar as his symptoms are expressly contemplated by the rating schedule. As outlined, the Veteran has reported symptoms such as anxiety, sleep impairment, flashbacks, difficulty driving, hallucinations, depressed mood and hypervigilance. Such symptoms are contemplated by the schedular criteria set forth in 38 C.F.R. § 4.130, Diagnostic Code 9413. The regulations expressly consider each of these symptoms and further allow for other signs and symptoms of anxiety which may result in occupational and social impairment. As the rating criteria adequately contemplate the Veteran's symptoms, the first step of Thun has not been met, and referral for the assignment of an extraschedular consideration is not warranted. ORDER For the period beginning on October 19, 2011, an increased rating of 70 percent for the service-connected anxiety disorder is granted, subject to the regulations governing the award of monetary benefits. REMAND A preliminary review of the record discloses a need for further development prior to final review. The Veteran seeks a total disability rating based on individual unemployability due to service-connected disabilities. In this regard, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service- connected disability shall be rated totally disabled. If the schedular rating is less than total, a total disability evaluation can be based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16. Nevertheless, it is the established policy of VA that all Veterans who are individually unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards are to refer to the Director of the Compensation and Pension Service (C&P) for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The Veteran's service-connected disabilities include anxiety disorder, currently evaluated as 50 percent disabling, since May 30, 2008, and 70 percent effective on October 19, 2011, and status post left knee injury with ossification of the medial collateral ligament, evaluated as 10 percent. As the Board is granting a 70 percent rating for anxiety, effective from October 2011, the Veteran clearly meets the criteria of 38 C.F.R. § 4.16 (a) as of this date. However, for the period prior to October 19, 2011, the only way to obtain TDIU rating is based upon an extraschedular basis. The evidence of record includes letters from a private physician dated in June 2008, June 2012 and February 2013 suggesting the Veteran was unemployable. Although the private records indicated the disability was PTSD and depression, as discussed, there is nothing in the record that clearly differentiates the symptoms attributable to the nonservice-connected disabilities versus the service-connected anxiety. Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). The VA examinations suggest the Veteran had difficulty working because of his knee and his anxiety. Additionally, on remand updated VA treatment records should be obtained and associated with the record. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated action in order to obtain copies of all records referable to treatment received by the Veteran at the VA Health Care System for the service-connected disabilities since December 2012 and associate them with the claims file. If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran. 2. After completing all indicated development, the RO readjudicate the claim for a TDIU rating in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeal Department of Veterans Affairs