Citation Nr: 1328189 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 09-10 818 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 50 percent for panic disorder with agoraphobia prior to September 8, 2011. 2. Entitlement to a rating in excess of 70 percent for panic disorder with agoraphobia from September 8, 2011. 3. Entitlement to a total disability rating for individual unemployability (TDIU) due to service-connected disability prior to September 8, 2011. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from October 1963 to September 1965. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2007 rating decision in which the RO denied the Veteran's claims for a rating in excess of 50 percent for panic disorder with agoraphobia and for a TDIU. In February 2007, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in March 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later in March 2009. In January 2011, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In March 2011, the Board remanded the claims on appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, in a May 2012 rating decision, the AMC awarded a higher, 70 percent rating for the psychiatric disability, effective September 8, 2011; as well as awarded a TDIU, also effective September 8, 2011. As regards the ratings assigned for the psychiatric disability, the Board notes that, although the RO has granted a higher rating for such disability during the pendency of the appeal, inasmuch as higher ratings for this disability are available prior to and after September 8, 2011, and the Veteran is presumed to seek the maximum available benefit for a disability, the Board has characterized the appeal as to evaluation of the Veteran's panic disorder as now encompassing the first two matters set forth on the title page. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); AB v. Brown, 6 Vet. App. 35, 38 (1993). Regarding the matter of the Veteran's entitlement to a TDIU, the Board notes that the award of a TDIU, from September 8, 2011 in the May 2012 rating decision reflects only a partial grant of the benefit sought with respect to this matter. Therefore, inasmuch as a TDIU may be available prior to September 8, 2011, that matter remains viable on appeal. Id. As explained in more detail below, in addition to the rating questions on appeal, the Board has also characterized the appeal as encompassing the matter of the Veteran's entitlement to a TDIU due to service-connected panic disorder with agoraphobia, on extra-schedular basis pursuant to 38 C.F.R. § 4.16(b), prior to September 8, 2011. The Virtual VA paperless claims processing system does not contain any additional pertinent evidence relevant to the claims on appeal. As a final matter, the Board notes that, while the Veteran previously was represented by the Disabled American Veterans, in December 2012, the Veteran granted a power-of-attorney in favor of private attorney Kathy A. Lieberman with regard to the claims on appeal. The Veteran's current attorney has submitted written argument on his behalf. The Board has recognized the change in representation. The Board's decision addressing the claims for higher rating for panic disorder with agoraphobia are set forth below. The claim for a TDIU due to service-connected panic disorder with agoraphobia, on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b), prior to September 8, 2011 is addressed in the remand following the order; this matter is being remanded to the RO. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim on appeal decided herein have been accomplished. 2. Prior to September 8, 2011, the Veteran's psychiatric symptoms have included insomnia, irritability, worry/fear, occasional disturbances of motivation and mood, and occasional outbursts of anger; collectively, these symptoms suggest occupational and social impairment with reduced reliability and productivity. 3. Since September 8, 2011, the Veteran's psychiatric symptoms have primarily included irritability, depression, anxiety, nightmares, frequent panic attacks which interfere with routine activities; collectively, these symptoms are indicative of no more than occupational and social impairment with deficiencies in most areas. 4. At no point prior to or since September 8, 2011 have the symptoms associated with the Veteran's panic disorder with agoraphobia been shown to result in total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. 5. The applicable rating criteria are adequate to rate the Veteran's panic disorder with agoraphobia at all points pertinent to this appeal. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for panic disorder with agoraphobia, prior to September 8, 2011, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (Code) 9412 (2012). 2. The criteria for a rating in excess of 70 percent for panic disorder with agoraphobia, from September 8, 2011, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Code 9412 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In a pre-rating January 2006 letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate a claim for an increased rating. The January 2007 decision reflects the initial adjudication of the claim after the issuance of the January 2006 letter. A November 2007 letter provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The claim was subsequently adjudicated after all critical notice was received. See March 2009 statement of the case. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records. Pertinent medical evidence associated with the claims file consists of service, VA treatment records, Social Security Administration records, and the report of VA examinations. Also of record and considered in connection with this matter are statements provided by the Veteran. The Board finds that no additional RO action to further develop the record in connection with the claim, prior to appellate consideration, is required. Additionally, in January 2011, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or VLJ who chairs a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the January 2011 hearing, the undersigned Veterans Law Judge enumerated the issue on appeal. Also, information was solicited regarding the nature of the Veteran's psychiatric symptoms, and his treatment providers. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. Although the undersigned did not explicitly suggest the submission of specific evidence, pursuant to the remand, discussed below, additional, pertinent evidence was associated with the claims file after the hearing; hence, any omission in this regard, during the hearing, was nonprejudicial. The Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that Board hearing was legally sufficient. As for other additional evidence, as noted, the Board sought further development of the claim in March 2011. The Board instructed the RO/AMC to obtain any additional VA treatment records since March 2010 and to send the Veteran another letter requesting any additional information and/or evidence. Thereafter, the RO/AMC was directed to arrange for the Veteran to undergo VA examination after all the pertinent records were associated with the claims file. Additionally, the RO/AMC was instructed to issue a supplemental statement of the case (SSOC) to the Veteran. A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v West, 11 Vet. App. 268, 271 (1998). In April 2011, the RO/AMC sent a letter to the Veteran requesting information concerning any additional information and evidence with respect to his claim. The RO obtained VA treatment records since March 2010, which have been associated with the claims file. Moreover, the Veteran was afforded another VA examination in September 2011. The examiner exhibited sufficient medical expertise to perform the examination and the examination is adequate for appellate review. Finally, the RO/AMC issued a SSOC in May 2012. Accordingly, the Board finds that the RO/AMC have substantially complied with the Board's remand directives. See Dyment v. West¸ 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268 where Board's remand instructions were substantially complied with); see also D'Aries v. Peake, 22 Vet. App. 97, 105-106 (2008) (finding that substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). In sum, VA's duties to notify and assist have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. at 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Factual Background The Veteran contends that his panic disorder is more disabling than the current ratings assigned. SSA records reflect that the Veteran has been in receipt of disability benefits since July 1994 with a primary diagnosis of cervical and lumbar spasm and secondary diagnosis of anxiety disorder. VA treatment records dated from August 2005 through September 2006 show treatment for symptoms of panic disorder with agoraphobia. The reports document the Veteran's symptoms of anxiety and panic attacks, and continuous medications for the condition. Various letters from the Veteran's treating VA provider, Dr. J.F.M., reveals that the Veteran continues to receive treatment for his panic attacks. On September 2006 VA examination, the examiner noted that the Veteran reported a fear of dying of a heart attack. He reported that he only goes places with his wife. He noted that the Veteran was casually dressed and properly groomed; he is fearful of going on the street or driving alone; there were symptoms of easy irritability; he was easily startled; he avoided watching the news; the Veteran reported that he was depressed; he denied hallucinations, delusions, or paranoid ideation. The Veteran did not report a history of obsessive ruminations or compulsive rituals. Diagnoses were panic disorder and agoraphobia, and a GAF score of 50 was assigned. On December 2007 VA psychiatric examination, the Veteran reported current panic attacks 3 to 5 times a week, that included anxiety, sweaty palms, pins and needles, dry mouth, feeling as if his head will explode, and fear of dying. The Veteran stated that the attacks can last anywhere from 30 to 60 minutes. The Veteran reported that he has difficulty maintaining daily functions because of the panic attacks. The Veteran reported trouble sleeping, and difficulty falling asleep approximately 4 nights per week. Mental status examination revealed that the Veteran was alert and oriented in all spheres. His appearance and hygiene were appropriate. His behavior was appropriate. Affect was full range, but his mood was described as "always nervous" and depressed for 15 to 20 minutes on most days. The Veteran's communication and speech were within normal limits. His concentration was normal. Panic attacks were present and occurred more than once per week. The Veteran exhibited some suspicious behavior. There was no delusional history present; there were no delusions observed; there was no hallucination history present; there were no hallucinations observed. Obsessional rituals were absent. The Veteran's thought processes were appropriate; his judgment was not impaired; abstract thinking was normal; his memory was within normal limits; suicidal ideation was absent; the Veteran did report an occasional fleeting suicidal ideation, but reported no plan or intent to act; homicidal ideation was absent. The diagnosis was panic disorder with agoraphobia, and a Global Assessment of Functioning (GAF) scale score of 50 was assigned. The examiner noted that the Veteran's mental health issues occasionally has some interference with him performing activities of daily living because of the anxiety. The examiner indicated that he has difficulty establishing and maintaining effective work/school relationships. It was noted that the Veteran describes a good relationship with his children and grandchildren, however the anxiety affects his relationship with his wife. He noted that the Veteran reported having friends but it did not appear as if he spent any time in social activities. The examiner opined that the best description of the Veteran's current psychiatric impairment was that the symptoms caused occupational and social impairment with reduced reliability and productivity. A March 2009 VA psychology treatment record reflects that the Veteran reported an increase in panic attacks. Mental status examination revealed the Veteran was quiet, friendly, and well-spoken. He had no evidence of psychosis. He was not tearful or emotional. His thought content was related to his financial worries. His judgment was appropriate. The Veteran was not suicidal or homicidal. Panic disorder with agoraphobia was diagnosed, and a GAF score of 42 was assigned with no explanation as to why such score was assigned. In an April 2009 statement, included with the Veteran's substantive appeal, the Veteran stated that his panic attacks have increased in severity. An April 2009 VA psychiatric admission treatment record documents the Veteran's report of periods of increased anxiety accompanied by sweaty hands, palpitations, light headedness, blurred vision, dry mouth, and feeling of impending doom. The Veteran reported that the symptoms may have increased due to his son's divorce. He reported a fear of being in open spaces. He reported no self harm. He indicated that he feels sad and at times overwhelmed by his chronic condition (anxiety), and his wife's depression. The Veteran denied manic symptoms, obsessions, or compulsions. Mental status examination revealed that the Veteran was well kempt and had adequate hygiene. He was cooperative and friendly. He displayed normal motor activity. His thought process was coherent, logical, and relevant. The Veteran displayed no delusions, judicial or homicidal ideation, to include intention and/or plan. His mood was anxious. Affect was full in range and appropriate, and mood was congruent. The Veteran was oriented in all spheres. His judgment and insight were fair. The examiner started the Veteran on medications and noted that as the Veteran was not suicidal or homicidal, and was in full contact with reality, he should be discharged and be followed up in the mental health clinics. The diagnosis was panic disorder with agoraphobia and a GAF score of 60 was assigned. An October 2009 VA psychology treatment record documents that the Veteran reported an increase in frustration, anxiety, anger, and irritability. Mental status examination revealed adequate hygiene, appropriate dress, normal behavior, cooperative attitude, oriented and alert in all spheres, irritable mood, full affect, stable and appropriate mood, coherent/logical and goal directed thought process, no usual thought content, intact memory, fair judgment and insight, no suicidal or homicidal ideation. Panic disorder was diagnosed and a GAF score of 50-60 was assigned. VA treatment records dated from March 2010 to September 2011 reflect ongoing psychological treatment, as well as treatment for various physical disabilities. On September 2011 VA psychiatric examination, the Veteran reported that his individual psychotherapy was somewhat effective. Examination revealed that the Veteran was clean and casually dressed, he was tense, his speech was spontaneous, his attitude was cooperative, his affect was constricted and mood was anxious, he was oriented in all spheres, the Veteran exhibited no delusions, his judgment and insight were fair, the Veteran reported sleep impairment. He denied obsessive and ritualistic behavior, homicidal and suicidal thoughts, and episodes of violence. The Veteran's memory was slightly impaired. Panic disorder was diagnosed and a GAF score of 50 was assigned. The examiner noted that the Veteran displayed mental disorders and symptoms in most areas to include family relations, work, and mood. The examiner did not find total occupational and social impairment. III. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Historically, in an April 1998 rating decision, the RO granted service connection for panic disorder with agoraphobia and an initial 50 percent rating was assigned, effective March 4, 1996. In December 2005, the Veteran filed his claim for increase. A January 2007 rating decision continued the 50 percent rating. In a May 2012 decision, the RO awarded a 70 percent rating, effective from September 8, 2011. As the RO has already assigned staged ratings for the Veteran's panic disorder, the Board will consider the propriety of the rating assigned at each stage, as well as whether any further staged rating of the disability is warranted. The RO assigned the ratings for the Veteran's panic disorder under Diagnostic Code 9412. However, the criteria for rating psychiatric disabilities other than eating disorders are actually set forth in a general rating formula. See 38 C.F.R. § 4.130. Under the formula, a 50 percent rating is assigned 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 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. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes 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). Psychiatric examinations frequently include assignment of a GAF score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the 'psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.' There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The evaluation of evidence generally involves a three step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Then, the Board must determine whether the evidence is credible. The Board must make an express credibility finding regarding lay evidence. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Finally, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. A. Period Prior to September 8, 2011 Considering the pertinent evidence in light of the above, the Board finds that a rating in excess of 50 percent for panic disorder with agoraphobia, prior to September 8, 2011, is not warranted. During this period, the severity of the Veteran's symptoms and the associated social and occupational impairment varied significantly depending on the intensity of his personal and medical problems. Collectively, the pertinent medical evidence reflects that prior to September 8, 2011, the Veteran's panic disorder with agoraphobia was manifested by such symptoms as exaggerated startle response, avoidance activities, irritability, and panic attacks. Such symptoms are indicative of a level of occupational and social impairment manifesting as reduced reliability and productivity not greater than that contemplated by a 50 percent rating. There were no homicidal or suicidal ideations or obsessive compulsive behaviors. The Veteran displayed a depressed mood but affect was full range and thought content was clear and directed. Speech was fluent. Attention, concentration, judgment, and insight were good with no gross sensory deficits. The Veteran expressed an occasional thought of suicide but denied these thoughts on other occasions. There is no evidence that the Veteran had firm plans or actually engaged in any violent or suicidal acts. The Veteran also described good relationships with his family and friends. The medical evidence simply does not show that, at any point during the period in question, the Veteran had symptoms of the type, frequency and/or severity that are characteristic of the next higher, 70 percent rating, such as obsessed rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; while he reported constant panic and depression, the Veteran was still found to be able to manage his affairs, therefore near-continuous panic or depression did not affect his ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); or spatial disorientation. The Veteran was constantly found to be appropriately dressed with good hygiene. The Board notes that the Veteran, as a layperson, is competent to report his own symptoms, perceptions, and behaviors. Here, the Board finds, generally, that his description of his panic disorder symptoms are deemed credible, primarily because they have not been challenged as imaginary or manipulative by clinicians. The Veteran's report of no employment since 1994 is credible, as it is consistent with the award of benefits by SSA for a back disorder as primary diagnosis and anxiety as secondary diagnosis. The Board notes, however, to the extent that he reports social isolation, the Board places less probative weight on assertions advanced in connection with this appeal that the records reflecting his own reports-given for , reports document relationships with his wife (although anxiety affects the relationship), children, and grandchildren. The Board further finds that none of the GAF scores assigned prior to September 8, 2011-generally from 50 to 60, and, on a single occasion, 42-alone, provides, a basis for higher rating. According to DSM-IV, GAF scores from 51 to 60 are indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks), OR moderate difficulty in social, occupation, or school functioning (e.g., few finds, conflict with peers or co-workers). Scores from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting), OR serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). GAF scores from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). In this case, the majority of the assigned GAFs fall in the range of 50 to 60; such scores are indicative of moderate symptoms or moderate difficulty in social, occupational, or school functioning; clearly support no more than the 50 percent rating assigned for the period in question. Indeed, as these scores actually suggest less impairment than that contemplated in the 50 percent rating, these scores provide no basis for assignment of an even higher rating. While the single score of 42 conceivably suggests greater impairment than that contemplated in the 50 percent rating, this score is not deemed a persuasive indicator of the Veteran's psychiatric functioning during the period in question. The score was assigned during a March 2009 outpatient visit, and the psychologist did not provide an explanation for the score. This e short-lived score also is not consistent with several other scores noted in the remainder of the period prior to September 8, 2011-to include the GAF of 60 assigned by a VA psychiatrist evaluating the Veteran for possible admission approximately one month later, in April 2009. In any event, as noted above, the Board reiterates that the symptoms shown, and not an examiner's assessment of the disability or assigned GAF, provide the primary basis for evaluation of psychiatric disability. See 38 C.F.R. § 4.126. Here, for reasons discussed above, the symptoms shown prior to September 8, 2011 are consistent with no more than the 50 percent rating assigned for that period. B. Period From September 8, 2011 The Board also finds that a rating in excess of 70 percent for panic disorder, from the date of the September 8, 2011 examination documenting increased impairment, is not warranted. As noted, as of that date, the Veteran's psychiatric symptoms have primarily included irritability, depression, anxiety, nightmares, frequent panic attacks which interfere with routine activities; collectively, these symptoms are indicative of no more than occupational and social impairment with deficiencies in most areas-consistent with the 70 percent rating assigned. However, the criteria for the maximum 100 percent rating are not met at any point since September 8, 2011. The Veteran has not been shown to have persistent delusions or hallucinations, or grossly inappropriate behavior. The Veteran also has not been shown to be a persistent danger to himself or others, and there is no indication that he has, or has had, a plan to harm himself or others. Further, some social ability is indicated by the Veteran's involvement, with his family, to include children and grandchildren. In other words, while the Veteran's psychiatric impairment has clearly worsened, at no point since September 8 2011 have the type and severity of the Veteran's s psychiatric symptoms been shown to rise to the level of total occupational and social impairment required for assignment of a 100 percent disability rating . In reaching this conclusion, the Board has favorably applied the benefit-of-the-doubt doctrine, but finds that the preponderance of the evidence is against assignment of the maximum, 100 percent rating. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. 49, at 53-56. C. Both Periods The above determinations are based upon consideration of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no point prior to or from September 8, 2011 was the Veteran's panic disorder shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321 (cited in the March 2009 SOC). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the applicable schedular criteria are adequate to rate the disability under consideration during all periods under consideration. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disability. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the forgoing reasons, the Board finds that there is no basis for any further staged rating, pursuant to Hart, and that each claim for higher rating must be denied. In reaching the conclusion to deny each claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating at any pertinent point, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 50 percent for panic disorder with agoraphobia, prior to September 8, 2011, is denied. A rating in excess of 70 percent for panic disorder with agoraphobia, from September 8, 2011, is denied. REMAND The Board finds that RO action on the claim for a TDIU due to service-connected panic disorder with agoraphobia prior to September 8, 2011 is warranted. Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2012). The Veteran's only service-connected disability is his panic disorder with agoraphobia. As indicated above, that disability is rated as 50 percent disabling for the period prior to September 8, 2011, Consequently, the percentage requirement of 4.16(a) is not met. The Board notes, however, entitlement to a TDIU, on an extra-schedular basis may, nonetheless, be established-pursuant to 38 C.F.R. § 4.16(b) and specially prescribed procedures-if the Veteran is shown to be unemployable by reason of his service-connected disability. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards, the case should be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16(b). The record reflects that a TDIU has been assigned from September 8, 2011 (the date on which it has been determined that the criteria for a 70 percent rating are met). However, the Board also notes that the evidence of record prior to September 8, 2011, suggests that the Veteran may have been unemployable during this period. In several statements dated from January 2006 to December 2010, the Veteran's treating VA physician, Dr. M. essentially indicated that because of the Veteran's mental condition, he was unemployable as he was unable to perform any type of job safely. In addition, an October 2007 letter from Worchester Public Schools indicates that the Veteran was not hired due to the report of his treating providers which note the Veteran was not fit for the position due to panic disorder. Based on the foregoing, it appears that the procedures for referral for consideration of an extra-schedular TDIU, set forth in 38 C.F.R. § 4.16(b), are invoked. It bears mentioning that, while the Board cannot assign an extra-schedular rating in the first instance, it can specifically adjudicate whether to refer a case to the Director of Compensation and Pension (C&P) Services for an extra-schedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director determines that an extra-schedular rating is not warranted, does the Board then have jurisdiction to decide the extra-schedular claim on the merits. In fact, the Court has held that, although the Board is precluded from initially assigning an extra-schedular rating, there is no restriction on the Board's ability to review the adjudication of an extra-schedular rating once the Director of C&P determines that an extra-schedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009). See also Floyd, 9 Vet. App. at 96-97 (stating that once Board properly refers an extraschedular rating issue to Director of C & P for review, appellant may "continue[ ] to appeal the extraschedular [sic] rating aspect of this claim"). See also 38 U.S.C.A. §§ 511(a), 7104(a) ("All questions in a matter ... subject to decision by the Secretary shall be subject to one review on appeal to the ... Board."). Under these circumstances, the Board finds that. on remand, this case should be referred to the Under Secretary for Benefits or to the Director of the Compensation and Pension Service for consideration of the Veteran's entitlement to a TDIU due to service-connected panic disorder with agoraphobia, on extra-schedular basis under 38 C.F.R. § 4.16(b), prior to September 8, 2011. Prior to completing the necessary action relating to referral of the claim for extra-schedular consideration, to ensure that all due process requirements are met, the RO should give the appellant another opportunity to provide information and/or evidence pertinent to the matter remaining on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted prior to adjudicating the matter remaining on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the matter of his entitlement to a TDIU due to service-connected panic disorder with agoraphobia prior to September 8, 2011, that is not currently of record. 2. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. Associate all records/responses received with the claims file. If any records sought are not obtained, notify the Veteran and his attorney of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. Then, forward the claims file to the Director of the VA Compensation and Pension Service for a determination of whether a TDIU due to service-connected panic disorder with agoraphobia on an extra-schedular basis is warranted for the period prior to September 8, 2011. 4. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the claim for a TDIU due to service connected panic disorder with agoraphobia prior to September 8, 2011 in light of all pertinent evidence (in particular, all that added to the record since the last adjudication) and legal authority (to include 38 C.F.R. § 4.16(b)). 6 If the benefit sought on appeal is not granted, furnish to the Veteran and his attorney an SSOC and provide an appropriate opportunity to respond before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs