Citation Nr: 1335108 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 13-15 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a lumbar spine disability. 3. Entitlement to a disability rating in excess of 10 percent for an anxiety disability prior to October 19, 2010, and in excess of 30 percent thereafter. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant, R.H., and S.W. ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran had active service from November 1942 to September 1944. These matters came before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, for the Nashville, Tennessee RO. In August 2013, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. The Veteran initiated the present claim for an increased rating for his service-connected anxiety disability in January 2010. In an April 2010 rating decision, the RO denied the claim for an increased rating. On October 19, 2010, additional evidence pertaining to the claim for an increased rating for an anxiety disability was submitted to the Veteran's Congressman. As this evidence was submitted within one year of the April 2010 rating decision, the April 2010 rating decision was not final regarding the issue of an increased rating for an anxiety disability. Later, in June 2011, the RO granted an increased 30 percent rating for his anxiety disability from October 19, 2010. For the purposes of the present appeal, as the increase was not granted to the original January 2010 date of claim, this action created a staged rating for the Veteran's anxiety disability. Inasmuch as a higher rating is available for anxiety both before and after October 19, 2010, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating remains viable on appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); AB v. Brown, 6 Vet. App. 35, 38 (1993). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Service connection for a lumbar spine disability was most recently denied in a September 2008 decision; the Veteran did not appeal. 2. The evidence received since the September 2008 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a lumbar spine disability. 3. The weight of the competent and credible evidence of record reflects that the Veteran's current lumbar spine disability is related to his military service. 4. Throughout the period of appeal, the Veteran's service-connected anxiety was manifested by symptoms of irritability, short-temperedness, anxiety, and sleep impairment; the weight of the evidence is against a finding of occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The September 2008 decision is final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.1100, 20.1103, 20.1104 (2013). 2. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a lumbar spine disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. Resolving doubt in favor of the Veteran, a lumbar spine disability was incurred in active duty military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 4. Prior to October 19, 2010, the criteria for an evaluation of 30 percent, but no higher, for anxiety have been met; the criteria for an evaluation in excess of 30 percent for anxiety have not been met throughout the course of the appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code 9400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Court has also issued a decision which held that, in the context of a claim to reopen, VCAA notice must include an explanation of 1) the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought; and 2) what constitutes new and material evidence to reopen the claim as determined by the evidence of record at the time of the previous final denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Court further explained that a notice letter must describe what evidence would be necessary to substantiate the element or elements required to establish the underlying claim that were found insufficient in the previous denial. See id. VCAA letters dated in January 2010 and March 2010 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, these letters described how appropriate disability ratings and effective dates were assigned. The March 2010 letter also advised the Veteran of the reason for the previous final denial of service connection for lordosis of the lumbar spine and instructed him on the meaning of new and material evidence. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records, VA treatment records, and private medical records are in the file. The Board finds that all relevant records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). Concerning the claim for an increased rating for an anxiety disability, the Veteran was provided VA examinations in February 2010 and May 2011. The examiners considered the Veteran's claims of experiencing psychiatric symptoms, as well as the service treatment records, post-service treatment records, and conducting a psychological examination. Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for an increased disability rating for anxiety. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim for an increased rating for anxiety. Moreover, the Board is granting the claim for service connection for a lumbar spine disability, any deficiency in the duty to assist pertaining to that claim constitutes harmless error. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. New and Material Evidence Claims A. Law and Regulations Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). B. Lumbar Spine Disability Service connection was originally denied for a lumbar spine disability in February 1948. The RO noted that the Veteran had lordosis of the lumbar spine, and lordosis was a constitutional or developmental abnormality. The RO indicated that under the law, the Veteran did not have a disability for which service connection could be awarded. Most recently, in September 2008, the RO found that new and material evidence had not been received sufficient to reopen the previously denied claim for service connection for a lumbar spine disability. The Veteran was provided a notice of appellate rights with that determination, but no appeal was initiated. Evidence of record at the time of the September 2008 rating decision included the Veteran's service treatment records, the results of a VA examination, private treatment records, and VA treatment records. Evidence added to the record since the September 2008 rating decision includes additional private treatment records, VA treatment records, and the transcript from the Veteran's August 2013 Board hearing. These records include numerous medical reports which document degenerative joint disease of the lumbar spine. Upon close review of the evidence pertaining to this claim, the Board has concluded that new and material evidence has been submitted to reopen the claim of entitlement to service connection for a low back disability. As discussed, the RO initially denied the Veteran's claim because the evidence did not establish the presence of a low back disability for which service connection could be awarded under the law. Since then, both private and VA treatment records establish that the Veteran is currently treated for arthritis and degenerative joint disease of the lumbar spine-acquired disabilities which are not constitutional or developmental abnormalities. This new evidence relates to unestablished facts necessary to substantiate the Veteran's claim, and presents a reasonable possibility of substantiating it. See 38 C.F.R. § 3.156. Accordingly, the Board finds that there is sufficient new and material evidence to reopen the Veteran's claim of entitlement to service connection for a lumbar spine disability. III. Service Connection Claim A. Law and Regulations In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for chronic disabilities, such as arthritis, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C.A. §§ 1101 , 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Lumbar Spine Disorder A review of the evidence of record shows that the Veteran clearly has a current diagnosis of degenerative joint disease of the lumbar spine. Therefore, the salient question to be answered is whether that currently diagnosed lumbar spine disorder was caused by his active service. In April 2011, the Veteran was given a VA compensation and pension examination. The examiner gave a diagnosis of degenerative disc and joint disease of the lumbar spine. The examiner opined that the Veteran's current lumbar spine disability was less likely as not caused by or a result of an in-service injury. The examiner indicated that the degenerative findings of the Veteran's lumbar spine were consistent with the aging process. He found no indication of trauma. The examiner noted that the Veteran was diagnosed with mild chronic low back pain while in service, but he was able to work and function after leaving the military. The examiner indicated that if the Veteran had severely injured his back while on active duty, there should have been more symptoms and/or treatment. While this evidence weighs against the claim, the Board has afforded this opinion less probative value. In offering his opinion that the Veteran's low back disability was not due to his active duty service, the examiner confined his observations and rationale to the service treatment records. No discussion was made of the Veteran's extensive and consistent post-service continuity of back symptoms. As such, the April 2011 examination report is not entitled to the probative value assigned the remaining evidence of record. The other evidence of record reflects that since the 1940s, the Veteran has consistently related his lower back pain to his active duty service. Service treatment records show that the Veteran complained of chronic pain in his lower back. He reported that in October 1943, he was lifting a 100 pound sack of sugar when his back buckled. On examination in August 1944, a service examiner gave a diagnosis of lumbago, chronic, mild, bilateral, type and cause undetermined. The Veteran's September 1944 separation examination report indicates that he had lumbago. A January 1948 VA examination report contains the Veteran's complaints of pain in his lower back. The examiner observed tenderness over the sacroiliac joint bilaterally. The diagnosis given was lordosis, etiology undetermined, moderate. An April 1948 letter from K.H.N., M.D., reflects that the Veteran had been treated for the prior 18 months for low back pain. A VA treatment record from September 1975 contains the Veteran's report of injuring his back in 1943 while lifting a bag of sugar. An X-ray revealed arthritis changes of the lumbar spine. Subsequent May and June 1976 letters from private physicians indicate that the Veteran had severe arthritis of the lumbar spine and degenerative disc disease. On VA compensation and pension examination for pension purposes in October 1976, the examiner found degenerative arthritis and disc disease of the lumbar spine. The Veteran reiterated that he hurt his back while on active duty. During his August 2013 Board hearing, the Veteran reiterated that he injured his back while lifting a heavy bag of sugar while on active duty. R.H. and S.W. related that the Veteran had back trouble as long as they knew him, and the Veteran had always related his back pain to the in-service accident with the bag of sugar. The Board finds that there is satisfactory evidence of record which establishes a continuity of lumbar spine symptoms from the time the Veteran left active duty through the present. As reviewed above, lay statements are of record which provide a continuity of symptomatology from the Veteran's period of active duty through the present. The Veteran has stated in various submissions to the VA that he has experienced lumbar spine pain. The Veteran is competent to describe the low back symptoms that he experiences because such symptoms come to him through his senses and, as such, require only personal knowledge rather than medical expertise. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Significantly, the private and VA outpatient medical evidence of record corroborate the Veteran's account of a continuity of low back symptoms dating from his time on active duty through the present. Thus, the Board finds the lay statements credible regarding a continuity of symptomatology. The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). However, the threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno, 6 Vet. App. at 469. In this case, the Board finds that the lay testimony, as supported by the private and VA outpatient medical records, outweighs the report of the April 2011 VA examiner and provides sufficient support for the present claims. In light of the medical treatment records which document current low back disability, and the lay statements which credibly provide a continuity of the Veteran's low back symptoms since his period of active duty, the Board finds that the benefit-of-the-doubt rule applies, and service connection for a lumbar spine disability is warranted. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Increased Rating Claim A. Law and Regulations The Board notes that the Veteran was granted service connection in a September 1944 rating decision for a psychoneurosis and assigned a 10 percent disability rating under what was then Diagnostic Code 1084. In February 1948, the characterization of the disability was changed to psychoneurosis, anxiety, and the 10 percent disability rating was continued under Diagnostic Code 9105. The Veteran filed the current claim for an increased rating in January 2010. During the course of the appeal, an increased disability rating of 30 percent, effective October 19, 2010, was granted, subject to the provisions of Diagnostic Code 9400 (anxiety). The Veteran is seeking increased ratings. Anxiety is to be rated under the general rating formula for mental disorders under 38 C.F.R. § 4.130. The pertinent provisions of 38 C.F.R. § 4.130 concerning the rating of psychiatric disabilities read in pertinent part as the following. A 10 percent rating is warranted when psychiatric disability causes occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9400. A 30 percent rating is warranted when psychiatric disability causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss. 38 C.F.R. § 4.130, Diagnostic Code 9400. A 50 percent evaluation requires 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9400. A 70 percent rating may 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; obsessed 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9400. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9400. Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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 peers or co- workers). See 38 C.F.R. § 4.130 (2011) [incorporating by reference the VA's adoption of the DSM-IV for rating purposes]. B. Anxiety As noted previously, the Veteran initiated the present claim for an increased rating for his service-connected anxiety disability in January 2010. The claims file contains no evidence pertinent to the claim for an increased rating for an anxiety disability for the year prior to January 2010. On VA compensation and pension examination in February 2010, it was noted that the Veteran was oftentimes irritable and short-tempered. The Veteran reported that his sleep was severely impaired due to his back and leg pain. He said he had good relationships with his family and friends. The examiner observed unremarkable psychomotor activity and clear, coherent speech. The Veteran's affect was noted to be normal, and the Veteran was in a good mood. He was able to perform serial sevens and was able to spell a word forward and backwards. He was oriented to person, time and place. The examiner indicated that the Veteran's thought process and content was unremarkable. No hallucinations, inappropriate behavior, obsessive behavior, panic attacks, suicidal thoughts, or homicidal thoughts were reported. The examiner indicated that the Veteran's remote, recent, and immediate memory were normal. The examiner assigned a GAF score of 55 based on his positive relationships with family and friends, his severe sleep impairments, his irritable mood and short temper, and his variety of worries and concerns. The examiner opined that the Veteran's mental disorder symptoms were not severe enough to interfere with his occupational and social functioning. On VA compensation and pension examination in May 2011, the examiner noted that the Veteran suffered from a depressed mood, anxiety, and chronic sleep impairment. The examiner indicated that there were no panic attacks, difficulty in understanding complex commands, impairment of memory, impairment of judgment, or disturbances of motivation. The examiner also indicated that there was no suicidal ideation, obsessional rituals, illogical speech, neglect of personal hygiene, or special disorientation. After performing the appropriate tests, the examiner opined that the Veteran's psychiatric symptoms were best described as an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. A GAF score of 65 was assigned. The Board finds that the criteria for a rating of 30 percent, but no higher, are met for the period under consideration in this appeal prior to October 19, 2010. In this matter, the Board acknowledges that the February 2010 VA examiner opined that that the Veteran's mental disorder symptoms were not severe enough to interfere with his occupational and social functioning. However, the same examiner assigned the Veteran a GAF score of 55, which is indicative of moderate symptoms. The examiner further justified that score by explaining that in addition to back and leg pain, the Veteran essentially experienced anxiety and irritability. The Board further recognizes that the evidence suggests that the Veteran's anxiety disability symptoms have been similar both before and after October 19, 2010. For example, the May 2011 VA examiner opined that the Veteran's psychiatric symptoms were best described as an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. This description suggests moderate symptoms. As such, taken as a whole, the Board finds that the record supports the award of a 30 percent rating prior to October 19, 2010; this action will award the Veteran a single disability rating of 30 percent for his anxiety disability throughout the entire appeal period. At no point during the period of appeal does the Veteran's overall anxiety symptomatology meet the criteria for a rating in excess of 30 percent. In this regard, the medical evidence does not show the Veteran to have symptoms such as circumstantial, circumlocutory, or stereotyped speech, panic attacks, 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, and impaired abstract thinking, or other symptoms that are characteristic of a 50 percent rating. Rather, the Veteran was cooperative and participated effectively during his examinations, he denied any suicidal or homicidal thoughts, and he has demonstrated that his speech, thought process, though content, judgment and his memory were intact. Additionally, the Veteran appears to have good family relationships. The Board has additionally considered that the Veteran has been assigned GAF scores of 55 and 65. As described above, a GAF scaled score between 61 and 70 is indicative of some mild symptoms or some difficulty in social, occupational, or school functioning, and a GAF scaled score between 51 and 60 is indicative of moderate symptoms. Neither of the assigned scores are indicative of the more severe symptoms which must be shown to warrant the 50 percent disability rating. In short, after a review of all the evidence of record, the Board finds that the evidence of record demonstrates that Veteran's anxiety disability supports an increased evaluation of 30 percent prior to October 19, 2010. At no point throughout the entire period of appeal does the evidence show or approximate that his symptomatology warrants an assignment of a rating in excess of 30 percent. Accordingly, further staged ratings are not warranted. See 38 C.F.R. § 4.130, Diagnostic Code 9400. C. Extraschedular Consideration The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The United States Court of Appeals for Veterans Claims has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. 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 the 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 evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the manifestations of his service connected anxiety are not in excess of those contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned ratings. Accordingly, the Board has determined that referral of the issue of entitlement to higher ratings for extra-schedular consideration is not in order. Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Here, while the record shows that the Veteran retired from his previous employment, he has not argued, and the record does not otherwise reflect, that his anxiety renders him unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. ORDER As new and material evidence has been received, the application to reopen the claim of service connection for lumbar spine disorder, is granted. Entitlement to service connection for a lumbar spine disorder is granted. A disability rating of 30 percent, but no higher, for an anxiety disability is granted prior to October 19, 2010, subject to the law and regulations governing the payment of monetary benefits. A disability rating in excess of 30 percent for an anxiety disability from October 19, 2010 is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs